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EXHIBIT 4.h
$1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
MARCH 20, 2000
AMONG
MASCO CORPORATION
THE BANKS PARTY HERETO
COMMERZBANK AKTIENGESELLSCHAFT, AS SYNDICATION AGENT
BANK OF AMERICA, N.A., AS SYNDICATION AGENT
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
BANK ONE CAPITAL MARKETS, INC.
LEAD ARRANGER AND SOLE BOOKRUNNER
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 20, 2000 is among
MASCO CORPORATION and certain of its Subsidiaries as borrowers, the BANKS party
hereto as lenders, COMMERZBANK AKTIENGESELLSCHAFT and BANK OF AMERICA, N.A., as
Syndication Agents, and BANK ONE, NA, as administrative agent, and amends and
restates in its entirety that certain Credit Agreement dated as of August 6,
1999 among Masco Corporation, the banks party thereto and Bank One, NA (f/k/a/
The First National Bank of Chicago) (the "Existing Credit Agreement"). The
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Acquired Debt" means, with respect to any Person which becomes a
Subsidiary after the date of this Agreement, Debt of such Person which was
outstanding before such Person became a Subsidiary and which was not created in
contemplation of such Person becoming a Subsidiary; provided that such Debt
shall no longer constitute "Acquired Debt" at any time that is more than six
months after such Person becomes a Subsidiary.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Affiliate" means at any date a Person (other than a Consolidated
Subsidiary) whose earnings or losses (or the appropriate proportionate share
thereof) would be included in determining the Consolidated Net Income of the
Company and its Consolidated Subsidiaries for a period ending on such date under
the equity method of accounting for investments in common stock (and certain
other investments).
"Agent" means Bank One, NA in its capacity as administrative agent for
the Banks hereunder, and its successors in such capacity.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Banks, as reduced from time to time pursuant to the terms hereof.
"Agreed Currencies" means (i) Dollars, (ii) euros, British Pounds
Sterling, German Deutschmarks, French Francs, Belgian Francs, Dutch Guilders,
Spanish Pesetas, Italian Lira and Danish Krone, and (iii) any other currency
which the Borrower requests the Agent to include as an Agreed Currency hereunder
and which is acceptable to all of the Banks. If, with respect to any Agreed
Currency, (x) currency control or other exchange regulations are imposed in the
country in which such currency is issued with the result that different types of
such currency are introduced, (y) such currency is, in the determination of the
Agent, no longer readily available or freely traded or deposits in such currency
are no longer customarily offered to banks in the London interbank market, or
(z) in the determination of the Agent, an Equivalent Amount of such currency is
not readily calculable, the Agent shall promptly notify the Banks, the Company
and any Borrower with Loans outstanding in such currency, and such currency
shall no longer be an Agreed Currency until such time as all of the Banks agree
to reinstate such currency
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as an Agreed Currency and promptly, but in any event within five Eurocurrency
Business Days of receipt of such notice from the Agent, the relevant Borrowers
shall repay all Loans in such affected currency or convert such Loans into Loans
in Dollars or another Agreed Currency, subject to the other terms set forth in
Article II. For the purposes of this definition, each of the specific currencies
referred to in clause (ii), above, shall mean and be deemed to refer to the
lawful currency of the jurisdiction referred to in connection with such
currency, e.g., "Danish Krone" means the lawful currency of Denmark.
"Agreement," when used with reference to this Agreement, means this
Amended and Restated Credit Agreement dated as of March 20, 2000, as amended
from time to time after the date hereof.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Floating Rate Loans, its Domestic Lending Office and (ii) in the
case of its Eurocurrency Loans, its Eurocurrency Lending Office.
"Applicable Margin" means with respect to any Eurocurrency Loan,
Floating Rate Loan or the facility fees payable under Section 2.07, as the case
may be at any time, the percentage which is applicable at such time as set forth
in the Pricing Schedule.
"Approximate Equivalent Amount" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars on or as of such date, rounded up to the nearest
amount of such currency as determined by the Agent from time to time.
"Arranger" means Banc One Capital Markets, Inc.
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Bank One" means Bank One, NA (Main office Chicago), (f/k/a The First
National Bank of Chicago), a national banking association.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrowers" means the Company and the Subsidiary Borrowers, and
"Borrower" means any of them, as the context may require.
"Borrowing" has the meaning set forth in Section 1.03.
"Commitment" means (i) with respect to any Bank listed on the
Commitment Schedule, the amount set forth opposite the name of such Bank on the
Commitment Schedule, or (ii) with respect to any Assignee, the amount of the
transferor Bank's Commitment assigned to such Assignee pursuant to Section
9.06(c), in each case as such amount may be reduced from time to time pursuant
to Section 2.08 or 2.09 or changed as a result of an assignment pursuant to
Section 9.06(c).
"Commitment Percentage" means at any date of determination, with
respect to any Bank, that percentage which the Commitment of such Bank then
constitutes of the Aggregate Commitment or, if the Commitments have expired or
been terminated, that percentage which the Commitment of such Bank constituted
of the Aggregate Commitment immediately prior to such expiration or
cancellation.
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"Commitment Schedule" means the Commitment Schedule attached hereto.
"Company" means Masco Corporation, a Delaware corporation, and its
successors.
"Company's 1998 Form 10-K" means the Company's annual report on Form
10-K for the year ended December 31, 1998, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.
"Company's Equity Securities" means shares of any class of the
Company's capital stock or options, warrants or other rights to acquire such
shares.
"Computation Date" is defined in Section 2.10(c).
"Consolidated Adjusted Net Worth" means at any date (i) Consolidated
Net Worth at such date less (ii) the amount (if any) by which the aggregate
amount of all equity and other investments in Affiliates of the Company
reflected in such Consolidated Net Worth exceeds $250,000,000.
"Consolidated Current Assets" means at any date the consolidated
current assets of the Company and its Consolidated Subsidiaries determined as of
such date.
"Consolidated Debt" means at any date the Debt of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Net Income" means, for any period, the consolidated net
income of the Company and its Consolidated Subsidiaries for such period
(considered as a single accounting period), but excluding the net income or
deficit of any Person (other than the equity in earnings or losses of an
Affiliate previously included in such consolidated net income determined under
the equity method of accounting for investments) prior to the effective date on
which it becomes a Consolidated Subsidiary or is merged into or consolidated
with the Company or a Consolidated Subsidiary.
"Consolidated Net Worth" means at any date the consolidated
shareholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"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 as of such date.
"Consolidated Total Liabilities" means at any date the aggregate of all
liabilities or other items which would appear on the liability side of a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of such date, except the amount so appearing which constitutes Consolidated Net
Worth.
"Continuing Director" means any member of the Company's board of
directors who either (i) is a member of such board as of the Effective Date or
(ii) is thereafter elected to such board, or nominated for election by
stockholders, by a vote of at least two-thirds of the directors who are
Continuing Directors at the time of such vote; provided that an individual who
is so elected or nominated in connection with a merger, consolidation,
acquisition or similar transaction shall not be a Continuing Director unless
such individual was a Continuing Director prior thereto.
"Conversion/Continuation Notice" is defined in Section 2.03(e).
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"Cost Rate" means:
1. The cost of compliance with existing requirements of the Bank of
England and/or the Financial Services Authority (or any authority which
replaces all or any of their functions) in respect of Borrowings
denominated in British Pounds Sterling will be calculated by the Agent
in relation to each Loan on the basis of rates supplied by the Agent by
reference to the circumstances existing on the first day of each
Interest Period in respect of such Loan and, if any such Interest
Period exceeds three months, at three calendar monthly intervals from
the first day of such Interest Period during its duration in accordance
with the following formula:
AB +C(B-D) + E x 0.01 per cent per annum
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100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these
to be in excess of any stated minimum) which the Agent is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B. is the percentage rate per annum equal to the Eurocurrency
Reference Rate established for such Loan without taking into
consideration the addition of the Cost Rate as specified in
such definition.
C. is the percentage of eligible liabilities which the Agent
is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing special deposits.
E. is the rate payable by the Agent to the Financial Services
Authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and expressed in
pounds per (pound)1,000,000 of the Fee Base of the Agent.
2. For the purposes of this definition:
(a) "eligible liabilities" and "special deposits" shall bear the
meanings ascribed to them from time to time under or pursuant to the
Bank of England Act 1998 or (as appropriate) by the Bank of England;
(b) "Fees Regulations" shall mean the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in force from time
to time in respect of the payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
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4. In application of the above formula, A, B, C and D will be included
in the formula as figures and not as percentages e.g. if A is 0.5 per
cent and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as
0.5 per cent x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if
market practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as
zero.
7. The resulting figures shall be rounded upwards, if not already such
a multiple, to the nearest whole multiple of one-thirty second of one
percent per annum.
8. Additional amounts calculated in accordance with this definition are
payable at the same time that accrued interest is payable for the
Interest Period to which they relate.
9. The determination of the Cost Rate by the Agent in relation to any
period shall, in the absence of manifest error (provided that the
determination of such Cost Rate is made on a reasonable basis), be
conclusive and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the
Company and the Banks, determine and notify to all parties any
amendments or variations which are required to be made to the formula
set out above in order to comply with any requirements from time to
time imposed by the Bank of England or the Financial Services Authority
(or any other authority which replaces all or any of their functions)
in relation to Borrowings denominated in British Pounds Sterling
(including any requirements relating to sterling primary liquidity)
and, any such determination shall, in the absence of manifest error
(provided that such determination is made on a reasonable basis) be
conclusive and binding on all the parties hereto.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of property,
except trade accounts payable, (iv) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (vi) all Debt of
others for which such Person is contingently liable. In calculating the amount
of any Debt at any date for purposes of this Agreement, accrued interest shall
be excluded to the extent that it would be properly classified as a current
liability for interest under the heading "Accrued liabilities" (and not under
the heading "Notes payable") in a balance sheet prepared as of such date in
accordance with the accounting principles and practices used in preparing the
balance sheet referred to in Section 4.04(a) and the related footnotes thereto.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount if
such currency is any currency other than Dollars.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Detroit, New York or Chicago are
authorized or required by law to close.
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"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"Domestic Subsidiary" means a Subsidiary which is incorporated under
the laws of the United States of America or any state thereof.
"Effective Date" has the meaning set forth in Section 3.01.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"Environmental Laws" means any and all federal, state and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful single currency of the member states of
the European Union that participate in the third stage of EMU.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Eurocurrency Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Eurocurrency Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Eurocurrency Lending Office by notice
to the Company and the Agent.
"Eurocurrency Loan" means a Loan to be made by a Bank which is to bear
interest at the Eurocurrency Rate in accordance with the applicable Notice of
Borrowing.
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"Eurocurrency Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Eurocurrency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the
Agent specified as the "Eurocurrency Payment Office" for such currency in
Schedule 1 hereto or such other office, branch, affiliate or correspondent bank
of the Agent as it may from time to time specify to the Company, the relevant
Borrowers and each Bank as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Loan for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Reference Rate applicable to such Interest Period, divided by (b) one minus the
Eurocurrency Reserve Percentage, plus (ii) the Eurocurrency Margin.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency
Loan for the relevant Interest Period, the applicable British Bankers'
Association Interest Settlement Rate for deposits in the applicable Agreed
Currency appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two
Eurocurrency Business Days prior to the first day of such Interest Period (or on
the first day of such Interest Period in the case of Eurocurrency Loans
denominated in British Pounds Sterling), and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD is not available to
the Agent for any reason, the applicable Eurocurrency Reference Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in the applicable Agreed
Currency as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Eurocurrency Business Days prior to
the first day of such Interest Period (or on the first day of such Interest
Period in the case of Eurocurrency Loans denominated in British Pounds
Sterling), and having a maturity equal to such Interest Period, and (ii) if no
such British Bankers' Association Interest Settlement Rate is available, the
applicable Eurocurrency Reference Rate for the relevant Interest Period shall
instead be the rate determined by the Agent to be the rate at which Bank One
offers to place deposits in the applicable Agreed Currency with first-class
banks in the London interbank market at approximately 11:00 a.m. (London time)
two Eurocurrency Business Days prior to the first day of such Interest Period
(or on the first day of such Interest Period in the case of Eurocurrency Loans
denominated in British Pounds Sterling), in the approximate amount of Bank One's
relevant Eurocurrency Loan and having a maturity equal to such Interest Period,
plus, in each case, for a Loan in Pounds Sterling, the Cost Rate.
"Eurocurrency Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" is defined in the first paragraph of this
Agreement.
"Federal Funds Effective Rate" means, for any day, the interest rate
per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
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such day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Effective Rate for such day shall be
such rate on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds
Effective Rate for such day shall be the average rate quoted to Bank One from
three Federal funds brokers of recognized standing selected it on such day on
such transactions as determined by the Agent in its sole discretion.
"Fiscal Quarter" means a fiscal quarter of the Company.
"Fiscal Year" means a fiscal year of the Company.
"Floating Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the Federal Funds Effective
Rate plus 1/2% per annum for such day.
"Floating Rate Loan" means a Loan to be made by a Bank or the Swingline
Lender which is to bear interest at the Floating Rate in accordance with the
applicable Notice of Borrowing or otherwise pursuant to this Agreement.
"High Quality Investment" means any investment in (i) direct
obligations of the United States of America or any agency thereof, or
obligations guaranteed by the United States of America or any agency thereof,
(ii) commercial paper rated at least A- I by S&P and at least P- I by Xxxxx'x or
(iii) time deposits with, including certificates of deposit issued by, any Bank
which was a party to this Agreement on the Effective Date or any office located
in the United States of America of any bank or trust company which is organized
under the laws of the United States of America or any State thereof and has
capital, surplus and undivided profits aggregating at least $500,000,000;
provided in each case that such investment matures within six months from the
date of acquisition thereof by the Company or a Subsidiary.
"Interest Period" means: (1) with respect to each Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter (or such longer or shorter period requested
by the Borrower and acceptable to all of the Banks), as the Borrower may elect
in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Eurocurrency Business Day shall be extended to the next
succeeding Eurocurrency Business Day unless such Eurocurrency Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Eurocurrency Business Day,
(b) any Interest Period which begins on the last Eurocurrency
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Eurocurrency Business Day of a
calendar month, and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date,
(2) with respect to each Floating Rate Borrowing, the period commencing
on the date of such Borrowing and ending 90 days thereafter or other mutually
agreeable period acceptable between Agent and the Borrower; provided that:
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(a) any Interest Period which would otherwise end on a day
which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Joinder Agreement" means an agreement substantially in the form
attached hereto as Exhibit E pursuant to which a Subsidiary Borrower agrees to
be bound by the terms and conditions of this Agreement.
"Lending Installation" means, with respect to a Bank or the Agent, the
office, branch, subsidiary or affiliate of such Bank or the Agent with respect
to each Agreed Currency listed on the administrative information sheets provided
to the Agent in connection herewith or otherwise selected by such Bank or the
Agent pursuant to Section 2.17.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or similar encumbrance of any kind in respect of such
asset; provided that a subordination agreement shall not be deemed to create a
Lien. For the purposes of this Agreement, the Company or any Consolidated
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other similar title retention
agreement relating to such asset.
"Loan" means a loan made by a Bank pursuant to Section 2.01.
"Material Debt" means Debt (other than the Loans) of the Company and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate outstanding principal amount exceeding
$25,000,000.
"Material Plan" has the meaning set forth in Section 6.01(i).
"Xxxxx'x" has the meaning set forth in the Pricing Schedule.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or, pursuant to an applicable collective bargaining
agreement, accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such five year
period.
"National Currency Unit" means the unit of currency (other than a euro
unit) of each member state of the European Union that participates in the third
stage of EMU.
"Notes" means any promissory notes of the Borrowers, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrowers to
repay the Loans, or the Swingline Note, as the case may be, and "Note" means any
one of such promissory notes issued hereunder.
"Notice of Borrowing" is defined in Section 2.02.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its Parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Prior Plan" means at any time (i) any Plan which at such time is no
longer maintained or contributed to by any member of the ERISA Group or (ii) any
Multiemployer Plan to which no member of the ERISA Group is at such time any
longer making contributions or, pursuant to an applicable collective bargaining
agreement, accruing an obligation to make contributions.
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds thereof, results in no net increase in the aggregate outstanding
principal amount of the Loans made by any Bank.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, holding more than 50% of the aggregate unpaid principal amount of
the Loans.
"S&P" has the meaning set forth in the Pricing Schedule.
"Significant Subsidiaries" means any Subsidiary Borrower or any one or
more Subsidiaries which, if considered in the aggregate as a single Subsidiary,
would be a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Exchange Act of 1934. For purposes of this Agreement, a
type of event shall not be deemed to have occurred with respect to Significant
Subsidiaries unless such type of event has occurred with respect to each of the
Subsidiaries required to be included to constitute "Significant Subsidiaries" as
defined in the preceding sentence.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time owned by the Company or by the Company and one or more Subsidiaries or by
one or more Subsidiaries.
"Subsidiary Borrower" means each Wholly-Owned Subsidiary of the Company
incorporated or formed in any jurisdiction other than any State of the United
States of America that has become a party to
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this Agreement by executing and delivering to the Agent a Joinder Agreement and
satisfying each of the conditions precedent set forth therein.
"Swingline Amount" is defined in Section 2.01(b).
"Swingline Lender" means Bank One.
"Swingline Loan" means any borrowing made by the Swingline Lender
pursuant to Section 2.01(b) and, if requested by the Swingline Lender, evidenced
by the Swingline Note.
"Swingline Note" means any promissory note of the Company evidencing
the Swingline Loans, in substantially the same form as Exhibit B hereto, as
amended or modified at the time such Swingline Loan is made to the Company.
"Syndication Agent" shall mean either of the Syndication Agents named
in the first paragraph of this Agreement.
"Termination Date" means the date 364 days after the Effective Date or,
if such day is not a Eurocurrency Business Day, the next preceding Eurocurrency
Business Day.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992 and came into force on November 1,
1993, as amended from time to time.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Company notifies the Agent that the Company
wishes to amend any covenant in Article 5 to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Company that the Required Banks wish to amend
Article 5 for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is
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withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a Borrower pursuant to
Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement as "types" of Borrowings either by
reference to the pricing of the Loans comprising such Borrowing (e.g., a
"Eurocurrency Borrowing" is a Borrowing comprised of Eurocurrency Loans) or by
reference to the provisions of Article 2 under which participation therein is
determined (e.g., a "Borrowing" is a Borrowing under Section 2.01(a) in which
all Banks participate in proportion to their Commitments).
ARTICLE 2
THE CREDITS
SECTION 2.01. (a) Borrowings. Each Bank severally agrees, on the terms
and conditions set forth in this Agreement, to make loans to the Company or any
Subsidiary Borrower pursuant to this Section from time to time on and after the
Effective Date to but excluding the Termination Date in any Agreed Currency;
provided that (i) the aggregate principal Dollar Amount of the Loans made by
such Bank at any one time outstanding shall not exceed the amount of its
Commitment at that time, (ii) Floating Rate Loans shall only be made in Dollars,
and (iii) Loans made to Subsidiary Borrowers shall be made only in Agreed
Currencies other than Dollars. Each Borrowing under this Section shall be in an
aggregate principal amount of $10,000,000 or any larger multiple of $1,000,000
(or the Approximate Equivalent Amounts if denominated in an Agreed Currency
other than Dollars, and except that any such Borrowing may be in the aggregate
amount available in accordance with Section 3.02(b)) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrowers may borrow under this Section, repay, or to the
extent permitted by Section 2.10, prepay Loans and reborrow at any time under
this Section. Amounts repaid pursuant to Section 8.02 shall not be reborrowed
except as provided therein.
(b) Swingline Loans. (i) Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Company or
any Subsidiary Borrower from time to time on any Domestic Business Day (if such
Swingline Loan is denominated in Dollars) or on any Eurocurrency Business Day
(if such Swingline Loan is denominated in an Agreed Currency other than Dollars)
during the period on and after the Effective Date to but excluding the
Termination Date in any Agreed Currency in the aggregate principal Dollar Amount
not to exceed the lesser of (A) $50,000,000 (the "Swingline Amount") and (B) the
unused portion of the Aggregate Commitment as of such Business Day, provided,
however that Swingline Loans to Subsidiary Borrowers shall not be made in
Dollars. Each Swingline Loan shall be in a principal amount of $1,000,000 or any
integral multiple thereof, or if denominated in an Agreed Currency other than
Dollars, the Approximate Equivalent Amount or such other minimum amounts and
multiples as the Swingline Lender shall determine. Each Bank's Commitment shall
be deemed utilized by an amount equal to such Bank's Commitment Percentage of
each Swingline Loan for purposes of determining the amount of Loans required to
be made by such Bank. Each Swingline Loan shall bear interest at the Floating
Rate or such other rate as shall be agreed between the relevant Borrower and the
Swingline Lender at the time such Swingline Loan is made. If any Swingline Loan
made in Dollars is not repaid by the Company on the date when due, each Bank
will make available a Borrowing the proceeds of which will be used to repay the
Swingline Loan.
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(ii) The Swingline Lender may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Borrowing in Dollars
to the Company from the Banks, and upon written notice thereof by the Swingline
Lender to the Agent, the Banks, the relevant Borrower and the Company, the
Company shall be deemed to have requested a Borrowing in an amount equal to the
Dollar Amount of such Swingline Loan and such Borrowing shall be made to refund
such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other
than Dollars shall, upon the giving of such notice by the Swingline Lender,
immediately and automatically be converted to and redenominated in Dollars equal
to the Equivalent Amount of each such Swingline Loan determined as of the date
of such conversion. Each Bank shall be absolutely and unconditionally obligated
to fund its Commitment Percentage of such Borrowing or, if applicable, to
purchase a participation interest in the Swingline Loans pursuant to Section
2.01(b)(iii) and such obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Bank has or may have against the Swingline
Lender, the Agent or the Company or any of its Subsidiaries or anyone else for
any reason whatsoever (including without limitation any failure to comply with
the requirements of Section 3.02, other than the Swingline Lender making a
Swingline Loan when it had actual knowledge of the existence of a Default); (B)
the occurrence or continuance of a Default, subject to Section 2.01(b)(iii); (C)
any adverse change in the condition (financial or otherwise) of the Company or
any of its Subsidiaries; (D) any breach of this Agreement by the Company or any
Subsidiary Borrower or any other Bank; or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing (including
without limitation the Company's failure to satisfy any conditions contained in
Article IV or any other provision of this Agreement, so long as the Swingline
Lender did not have any specific written notice from the Company or a Lender
that the conditions to making a Swingline Loan were not satisfied at the time
such Swingline Loan was made).
(iii) If, for any reason (including without limitation as a result of
the occurrence of a Default with respect to the Company pursuant to Sections
6.01(g) or (h)) Loans may not be made by the Banks as described in Section
2.01(b)(ii), then (A) the relevant Borrower agrees that each Swingline Loan not
paid pursuant to Section 2.01(b)(ii) shall bear interest, payable on demand by
the Swingline Lender, at the rate per annum equal to the sum of 2% plus the
Floating Rate, (B) the Borrowers agree that each Swingline Loan outstanding in
an Agreed Currency other than Dollars shall be immediately and automatically
converted to and redenominated in Dollars equal to the Equivalent Amount of such
Swingline Loan determined as of the date of such conversion, and (C) effective
on the date each such Loan would otherwise have been made, each Bank severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default, in lieu of deemed disbursement of loans, to the
extent of such Bank's Commitment, purchase a participation interest in the
Swingline Loans by paying its Commitment Percentage thereof, provided, however,
that no Bank shall be obligated to purchase such participation in a Swingline
Loan made by the Swingline Lender when it had actual knowledge of the existence
of a Default. Each Bank will immediately transfer to the Swingline Lender, in
same day funds, the amount of its participation. Each Bank shall share based on
its Commitment Percentage in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Bank shall not have so made
the amount of such participating interest available to the Swingline Lender,
such Bank and the Company severally agree to pay to the Swingline Lender
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Swingline Lender until the date such amount is
paid to the Swingline Lender, at (x) in the case of the Company, at the interest
rate specified above and (y) in the case of such Bank, the Federal Funds
Effective Rate for the first three days and at the interest rate specified above
thereafter.
SECTION 2.02. Notice of Borrowing. Each Borrower shall give the Agent
notice substantially in the form of Exhibit F (a "Notice of Borrowing") not
later than 10:00 A.M. (Detroit time) on (x) the date of each Floating Rate
Borrowing, (y) the third Eurocurrency Business Day before each Eurocurrency
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Borrowing in Dollars, and (z) the fourth Eurocurrency Business Day before each
Eurocurrency Borrowing in an Agreed Currency other than Dollars, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Eurocurrency
Business Day in the case of a Eurocurrency Borrowing,
(b) the aggregate amount and Agreed Currency of such
Borrowing,
(c) whether the Loans comprising such Borrowing are to be
Floating Rate Loans or Eurocurrency Loans, and
(d) in the case of a Eurocurrency Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
The Company shall give the Swingline Lender notice of its request for
each Swingline Loan substantially in the form of Exhibit F-1 (a "Notice of
Swingline Borrowing") not later than 1:00 p.m. Detroit time on the same Business
Day such Swingline Loan in Dollars is requested to be made, and not later than
the time agreed upon by the Company and the Swingline Lender with respect to any
other Swingline Loan. The Agent will make the Swingline Loans available to the
Company at its relevant Eurocurrency Payment Office.
SECTION 2.03. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) Not later than 12:00 Noon (Detroit time) on the date of each
Borrowing in Dollars, and not later than 12:00 Noon (London time) on the date of
each Borrowing in an Agreed Currency other than Dollars, each Bank participating
therein shall (except as provided in subsection (c) of this Section) make
available its share of such Borrowing, in Federal or other funds immediately
available in Detroit or London, as the case may be, to the Agent at its relevant
address referred to in Section 9.01 or otherwise specified in writing by the
Agent to the Banks. Unless the Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Agent will make the funds so
received from the Banks available to the relevant Borrower at the Agent's
aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower requesting such Loan is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by such Bank
to the Agent as provided in subsection (b) of this Section, or remitted by such
Borrower to the Agent as provided in Section 2.11, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the time of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section and the Agent may, in
reliance upon such assumption, make available to the relevant Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made such share available to the Agent, such Bank and the relevant Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount
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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, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Effective Rate and the interest rate applicable thereto pursuant
to Section 2.06 and (ii) in the case of such Bank, the Federal Funds Effective
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. Nothing in this Section 2.03(d) shall relieve
such Bank or any other Bank of its obligation to make its share of each
Borrowing available to the Agent in accordance with the terms of this Agreement.
(e) Floating Rate Loans shall continue as Floating Rate Loans unless
and until such Floating Rate Loans are converted into Eurocurrency Loans
pursuant to this Section 2.03(e) or are repaid in accordance with Section 2.10.
Each Eurocurrency Loan shall continue as a Eurocurrency Loan until the end of
the then applicable Interest Period therefor, at which time:
(i) each such Eurocurrency Loan denominated in Dollars shall be
automatically converted into a Floating Rate Loan unless (x)
such Eurocurrency Loan is or was repaid in accordance with
Section 2.10 or (y) the relevant Borrower shall have given the
Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such
Eurocurrency Loan either continue as a Eurocurrency Loan for
the same or another Interest Period or be converted into a
Floating Rate Loan; and
(ii) each such Eurocurrency Loan not denominated in Dollars shall
automatically continue as a Eurocurrency Loan in the same
Agreed Currency with an Interest Period of one month unless
(x) such Eurocurrency Loan is or was repaid in accordance with
Section 2.10 or (y) the relevant Borrower shall have given the
Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such
Eurocurrency Loan continue as a Eurocurrency Loan for the same
or another Interest Period.
Subject to the terms of Section 2.01(a), the Borrowers may elect from
time to time to convert all or any part of a Loan of any type into any other
type or types of Loans denominated in the same or any other Agreed Currency;
provided that any conversion of any Eurocurrency Loan shall be made on, and only
on, the last day of the Interest Period applicable thereto. The relevant
Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion or continuation of a Loan not later than 10:00 a.m.
(Detroit time) at least one Domestic Business Day, in the case of a conversion
into or continuation of a Floating Rate Loan, three Eurocurrency Business Days,
in the case of a conversion into or continuation of a Eurocurrency Loan
denominated in Dollars, or four Eurocurrency Business Days, in the case of a
conversion into or continuation of a Eurocurrency Loan denominated in an Agreed
Currency other than Dollars, prior to the date of the requested conversion or
continuation, specifying:
A. the requested date, which shall be a Domestic Business Day
or in the case of a conversion into or continuation of a Eurocurrency
Loan, a Eurocurrency Business Day, of such conversion or continuation,
and
B. the Agreed Currency, amount and type(s) of Loan(s) into
which such Loan is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Loan, the duration
of the Interest Period applicable thereto.
SECTION 2.04. Noteless Agreement; Evidence of Indebtedness. (a) Each
Bank shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower
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to such Bank resulting from each Loan made by such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record (a)
the amount of each Loan made hereunder, the type thereof and the Interest Period
with respect thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Bank hereunder
and (c) the amount of any sum received by the Agent hereunder from each Borrower
and each Bank's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be prima facie evidence of the existence and
amounts of the Loans (including the principal and interest owing) therein
recorded; provided, however, that the failure of the Agent or any Bank to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (including the principal and
interest owing) in accordance with their terms.
(iv) Any Bank or the Swingline Lender may request that its Loans be
evidenced by a Note. In such event, each Borrower requested by such Bank or the
Swingline Lender shall prepare, execute and deliver to such Bank or Swingline
Lender, as the case may be, a Note payable to the order of such Bank or
Swingline Lender in substantially the form of Exhibit A in the case of any Bank
or the form of Exhibit B in the case of the Swingline Lender. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times (including
after any assignment pursuant to this Agreement) be represented by one or more
Notes payable to the order of the payee named therein or any assignee pursuant
to this Agreement, except to the extent that any such Bank or assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in paragraphs (a) and (b) above.
SECTION 2.05. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.06. Interest Rates. (a) Each Floating Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the
Floating Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or overdue interest on
any Floating Rate Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the Floating Rate for
such day.
(b) Each Eurocurrency Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the Eurocurrency Rate. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
(c) Any overdue principal of or interest on any Eurocurrency Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Eurocurrency Rate
applicable to such Loan prior to its maturity and (ii) the Eurocurrency Rate
which would be applicable to a Eurocurrency Loan to the relevant Borrower
hereunder made on such date for a period of one day (or, if such amount due
remains unpaid more than three Eurocurrency Business Days, then for such other
period of time not longer than six months as the Agent may elect), (or, if the
circumstances described in Section 8.01 shall exist, at a rate per annum equal
to the sum of 2% plus the Floating Rate for such day).
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(d) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the relevant Borrowers
and the participating Banks by telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error (provided that the determination of such amount or amounts is
made on a reasonable basis).
SECTION 2.07. Facility Fees and Utilization Fees. The Company shall pay
to the Agent, for the account of the Banks ratably in proportion to their
Commitments, a facility fee calculated for each day at the facility fee rate for
such day determined in accordance with the Pricing Schedule. Such facility fee
shall accrue for each day (i) from and including the Effective Date to but
excluding the Termination Date (or earlier date of termination of the
Commitments in their entirety), on the Aggregate Commitment (whether used or
unused) in effect on such day and (ii) from and including such date of
termination of the Commitments to but excluding the date the Loans shall be
repaid in their entirety, on the aggregate principal amount of the Loans
outstanding on such day. Fees accrued under this Section shall be payable
quarterly on the date fifteen days after the last day of each March, June,
September and December and upon the termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their entirety).
For each day on which the aggregate principal amount of outstanding Loans (other
than Swingline Loans) exceeds 25% but does not exceed 50% of the Aggregate
Commitment, a utilization fee at the per annum rate set forth on the Pricing
Schedule will accrue on the aggregate principal amount of outstanding Loans for
the ratable benefit of the Banks. For each day on which the aggregate principal
amount of outstanding Loans (other than Swingline Loans) exceeds 50% of the
Aggregate Commitment, a utilization fee at the per annum rate set forth on the
Pricing Schedule will accrue on the aggregate principal amount of outstanding
Loans for the ratable benefit of the Banks. No utilization fee shall accrue on
the Swingline Loans. Such utilization fees shall be payable in arrears on the
date fifteen days after the last day of each March, June, September and December
until the termination of the Commitments in their entirety (and, if later, the
date the Loans shall be repaid in their entirety).
SECTION 2.08. Optional Termination or Reduction of Commitments. (a) The
Company may, upon at least three Eurocurrency Business Days' notice to the
Agent, (i) terminate the Commitments at any time, if no Loans are outstanding at
such time, or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
(b) Upon receipt of a notice of termination or reduction pursuant to
this Section, the Agent shall promptly notify each Bank of the contents thereof
and of the new amount (if any) of such Bank's Commitment and such notice shall
not thereafter be revocable by the Company.
SECTION 2.09. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Prepayments. (a) The Borrowers (i) may prepay any
Floating Rate Borrowing at any time without penalty on the same day or (ii) upon
at least three Eurocurrency Business Days' notice to the Agent, subject to
Section 2.12, prepay any Eurocurrency Borrowing, in whole at any time, or from
time to time in part in amounts aggregating $10,000,000 or any larger multiple
of $1,000,000 (or the Approximate Equivalent Amounts if denominated in an Agreed
Currency other than Dollars), by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
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(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
(c) The Agent will determine the Dollar Amount of:
(i) each Eurocurrency Borrowing as of the date two Eurocurrency
Business Days prior to the Borrowing Date or, if applicable, date of
conversion/continuation of such Borrowing, and
(ii) all outstanding Borrowings on and as of the last Eurocurrency
Business Day of each quarter and on any other Eurocurrency Business Day elected
by the Agent in its discretion or upon instruction by the Required Banks.
Each day upon or as of which the Agent determines Dollar Amounts as described in
the preceding clauses (i) and (ii) is herein described as a "Computation Date"
with respect to each Borrowing for which a Dollar Amount is determined on or as
of such day. If at any time the Dollar Amount (calculated, with respect to those
Loans denominated in Agreed Currencies other than Dollars, as of the most recent
Computation Date with respect to each such Loan) of (A) the aggregate principal
amount of all outstanding Loans exceeds the Aggregate Commitment, or (B) the
aggregate principal amount of all outstanding Swingline Loans exceeds the
Swingline Amount, the Borrowers shall immediately repay Loans in an aggregate
principal amount sufficient to eliminate any such excess.
SECTION 2.11. General Provisions as to Payments. (a) The Borrowers
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 1:00 pm (local time) in the relevant currency on the
date when due to the Agent at its address referred to in Section 9.01 or at any
other Lending Installation of the Agent with respect to such obligation as
specified in writing by the Agent to the Borrowers. Whenever any payment of
principal of, or interest on, the Floating Rate Loans or of fees shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Eurocurrency Loans shall be due on a day
which is not a Eurocurrency Business Day, the date for payment thereof shall be
extended to the next succeeding Eurocurrency Business Day unless such
Eurocurrency Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Eurocurrency Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the relevant
Borrower prior to the date on which any payment is due to the Banks hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that such Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate for the first three days and at the Floating
Rate thereafter.
(c) Each Loan shall be repaid and each payment of interest thereon
shall be paid in the currency in which such Loan was made or, where such
currency has converted to the euro, in the euro. All payments required to be
made by the Borrowers in Dollars hereunder will be made in immediately available
funds and all payments required to be made by the Borrowers in a currency other
than Dollars will be made in the required currency and in same day or such other
funds as the Agent may determine to be
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customary for the settlement of deposits in such currency at its Eurocurrency
Payment Office for such currency and shall be applied ratably by the Agent among
the Banks. Each payment delivered to the Agent for the account of any Bank shall
be delivered promptly by the Agent to such Bank in the same type of funds that
the Agent received at, (a) with respect to Floating Rate Loans and Eurocurrency
Loans denominated in Dollars, its address specified pursuant to Article 9.01 or
at any Lending Installation specified in a notice received by the Agent from
such Bank and (b) with respect to Eurocurrency Loans denominated in an Agreed
Currency other than Dollars, in the funds received from the Borrower at the
address of the Agent's Eurocurrency Payment Office for such currency. The Agent
is hereby authorized to charge any account of the relevant Borrower designated
by such Borrower as the account from which payments are to be made and
maintained with Bank One or any of its affiliates for each payment of principal,
interest and fees as it becomes due hereunder.
(d) Subject to Section 2.14, all payments of principal of and interest
on the Loans and other amounts payable by the Borrowers to any Bank hereunder
shall be made by the Borrowers without setoff, deduction or counterclaim and,
subject to the next succeeding sentence, free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority. Subject to Section 2.14, if any such
taxes, levies, imposts, duties, fees, assessments or other charges are imposed,
the relevant Borrower will pay such additional amounts as may be necessary so
that payment of principal of and interest on the Loans and other amounts payable
hereunder, after withholding or deduction for or on account thereof, will not be
less than any amount provided to be paid hereunder.
SECTION 2.12. Funding Losses. If any Borrower makes any payment of
principal with respect to any Eurocurrency Loan (pursuant to Section 2.10,
Article 6, Article 8 or otherwise) on any day other than the last day of the
Interest Period applicable thereto, or if any Borrower fails to borrow any
Eurocurrency Loan after notice has been given to any Bank in accordance with
Section 2.03(a) or if any Borrower fails to prepay any Eurocurrency Loan after
notice has been given to any Bank in accordance with Section 2.10(b), such
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or failure to borrow,
provided that such Bank shall have delivered to such Borrower a certificate as
to the amount of such loss or expense, which certificate shall be conclusive in
the absence of manifest error, provided that the determination of such loss or
expense is made on a reasonable basis.
SECTION 2.13. Computation of Interest and Fees. Interest on Floating
Rate Loans hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest on Loans
denominated in British Pounds Sterling hereunder shall be computed on the basis
of a year of 365 days and paid for the actual number of days elapsed (including
the first day but excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.14. Withholding Tax Exemption. (a) At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America or a state thereof agrees that it will
deliver to each of the Company and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 and Form W-8 or W-9 and any
additional forms necessary for claiming complete exemption from United States
withholding taxes (or any successor or substitute forms), certifying in either
case that such Bank is entitled to receive payments under this Agreement and
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the Loans without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 and a Form W-8 or W-9 and
any additional forms necessary for claiming complete exemption from United
States withholding taxes (or any successor or substitute forms) further
undertakes to deliver to each of the Company and the Agent two additional copies
of such forms (or any successor or substitute forms) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent to the extent it may lawfully do so, in
each case certifying that such Bank is entitled to receive payments under this
Agreement and the Loans without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
(b) Each Bank which is neither a resident of the United Kingdom nor a
bank carrying on a bona fide banking business in the United Kingdom agrees to
furnish, on or before the date such Bank makes a Loan to any Borrower in the
United Kingdom or denominated in British Pounds Sterling, to the Agent and the
relevant Borrower evidence satisfactory to the Agent and such Borrower that such
Bank has filed with the United Kingdom Inland Revenue a "Claim on Behalf of a
United States Domestic Corporation to Relief from United Kingdom Income Tax on
Interest and Royalties Arising in the United Kingdom" or other appropriate form
or forms of exemption from withholding tax and received from the Inland Revenue
authority that payments to such Bank by such Borrower hereunder may be made
gross; provided that such Bank's failure to furnish such evidence shall not
relieve such Borrower of any of its obligations under this Agreement, except as
otherwise provided in this Section 2.14.
(c) For any period with respect to which a Bank has failed to provide
the Company, the Agent or the relevant Borrower with the appropriate form as
required by the foregoing subsections (unless such failure is due to a change in
treaty, law or regulation occurring after the date on which such form originally
was required to be provided), such Bank shall not be entitled to compensation
pursuant to the last sentence of Section 2.11(d).
SECTION 2.15. Application of Interest Rates and Fees. Interest and fees
shall accrue on and after the Effective Date at the rates described in Sections
2.06 and 2.07. Interest and fees (including commitment fees) for all periods
prior to the Effective Date shall be calculated and paid in accordance with the
Existing Credit Agreement.
SECTION 2.16. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase the specified currency with such other currency at the Agent's main
Chicago office on the Eurocurrency Business Day preceding that on which final,
non-appealable judgment is given. The obligations of such Borrower in respect of
any sum due to any Bank or the Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Eurocurrency Business Day following receipt by such Bank
or the Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Bank or the Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified
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currency so purchased is less than the sum originally due to such Bank or the
Agent, as the case may be, in the specified currency, such Borrower agrees, to
the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Bank or the Agent, as the
case may be, in the specified currency and (b) any amounts shared with other
Banks as a result of allocations of such excess as a disproportionate payment to
such Bank under Section 9.04, such Bank or the Agent, as the case may be, agrees
to remit such excess to such Borrower.
SECTION 2.17 Lending Installations. Each Bank will book its Loans at
the appropriate Lending Installation listed on the administrative information
sheets provided to the Agent in connection herewith or such other Lending
Installation designated by such Bank in accordance with the penultimate sentence
of this Section 2.17. All terms of this Agreement shall apply to any such
Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Bank for the benefit of any such Lending Installation. Each
Bank may, by written notice to the Agent and the Borrowers in accordance with
Article 9, designate replacement or additional Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be
made. To the extent reasonably possible, each Bank shall designate a Lending
Installation to reduce any liability of a Borrower to such Bank under Article 8,
so long as such designation is not disadvantageous to such Bank in any material
respect.
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective on
the date it is signed by all parties hereto, provided the neither the Company
nor any Subsidiary Borrower may obtain funding of any Loans hereunder until the
date (the "Effective Date") which is the later of March 27, 2000 or the date on
which each of the following conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Agent in form satisfactory to it of
facsimile or other written confirmation from such party that it has executed a
counterpart hereof);
(b) receipt by the Agent of an opinion of Xxxx X. Xxxxxxx, Senior Vice
President-General Counsel of the Company, substantially in the form of Exhibit C
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(c) receipt by the Agent of a certificate of a duly authorized officer
of the Company, dated the Effective Date, certifying that (i) as of such date no
Default shall have occurred and be continuing and (ii) as of such date the
representations and warranties of the Company contained in this Agreement are
true in all material respects;
(d) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Company, the corporate authority for and the
validity of this Agreement and the Loans, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent; and
(e) payment in full of all amounts outstanding under the Existing
Credit Agreement.
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SECTION 3.02. All Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding Dollar Amount of the Loans will not exceed the Aggregate Commitment;
(c) the fact that, immediately before and after such Borrowing, (i)
in the case of a Refunding Borrowing, no Event of Default shall have occurred
and be continuing and (ii) in the case of any other Borrowing, no Default shall
have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrowers
contained in this Agreement or any Joinder Agreement (except, in the case of a
Refunding Borrowing, the representations and warranties set forth in Sections
4.04(c), 4.05, 4.06 (other than clause (i) thereof), 4.07 and 4.10) shall be
true in all material respects on and as of the date of such Borrowing. Each
Borrowing hereunder shall be deemed to be a representation and warranty by the
Borrower requesting such Borrowing on the date of such Borrowing as to the facts
specified in clauses (b), (c) and (d) of this Section.
SECTION 3.03. Consequences of Effectiveness. On the Effective Date the
Existing Credit Agreement will be amended and restated to read in full as set
forth herein and the promissory notes of the Company delivered pursuant thereto
will become void, all without further action by any of the parties thereto.
Notwithstanding such amendment and restatement of the Existing Credit Agreement,
the rights and obligations of the parties thereto with respect to the period
prior to the Effective Date will continue to be governed by the provisions
thereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company and its
Domestic Subsidiaries are corporations duly incorporated, validly existing and
in good standing under the laws of their respective states of incorporation, and
have all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on their businesses,
considered as a whole, substantially as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official (except
filings under the Securities Exchange Act of 1934) and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company.
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SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1998 and the related consolidated statements of
income and cash flows for the Fiscal Year then ended, reported on by
PricewaterhouseCoopers LLP and set forth in the Company's 1998 Form 10-K, a copy
of which has been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date and
the consolidated results of their operations and their cash flows for such
Fiscal Year.
(b) The unaudited condensed consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of September 30, 1999 and the related
unaudited condensed statements of consolidated income and consolidated cash
flows for the three months then ended, set forth in the Company's quarterly
report for the fiscal quarter ended September 30, 1999 as filed with the
Securities and Exchange Commission on Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Company and its Consolidated Subsidiaries
as of such date and their consolidated results of operations and cash flows for
such three-month period (subject to normal year-end adjustments).
(c) There has been no material adverse change since September 30, 1999
in the business or financial position of the Company and its Consolidated
Subsidiaries, considered as a whole, as reflected in the financial statements
referred to in subsection (b) of this Section.
SECTION 4.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Company threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which, in the reasonable opinion of the
Company, is likely to have a material adverse effect on the business or
financial position of the Company and its Consolidated Subsidiaries, considered
as a whole, or which in any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group (i)
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and (ii) is in compliance in
all material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (x) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (y) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code, in each case
securing an amount greater than $10,000,000 or (z) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Company conducts appropriate reviews of the effect of
Environmental Laws on the business, operations and properties of the Company and
its Subsidiaries, in the course of which it identifies and evaluates pertinent
liabilities and costs (including, without limitation, capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned or for the lawful operation of its current facilities,
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required constraints or changes in operating activities, and evaluation of
liabilities to third parties, including employees, together with pertinent costs
and expenses). On the basis of this review, the Company has reasonably concluded
that Environmental Laws are not likely to have a material adverse effect on the
business, financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the Fiscal
Year ended December 31, 1993. 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 shown as due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary, except such taxes, if any, as are being contested in good
faith and as to which, in the opinion of the Company, adequate reserves have
been provided. The charges, accruals and reserves on the books of the Company
and its Subsidiaries in respect of taxes or other governmental charges are, in
the opinion of the Company, adequate.
SECTION 4.09. Not an Investment Company. The Company is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10. Compliance with Laws. The Company complies, and has
caused each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder), except where (i) the necessity of compliance
therewith is contested in good faith by appropriate proceedings, (ii) no officer
of the Company is aware that the Company or the relevant Subsidiary has failed
to comply therewith or (iii) the Company has reasonably concluded that failure
to comply is not likely to have a material adverse effect on the business,
financial position or results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Loan or otherwise hereunder remains
unpaid:
SECTION 5.01 Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the end
of each Fiscal Year, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income and cash flows for such Fiscal Year, setting
forth in each case in comparative form the corresponding figures for the
previous Fiscal Year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of nationally recognized standing, whose report
shall be without material qualification;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each Fiscal Year, a condensed
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter, the related condensed consolidated statement of
income for such quarter and the related condensed consolidated statements of
income and cash flows for
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the portion of such Fiscal Year ended at the end of such quarter, setting forth
in each case in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year, all in reasonable detail and certified, to
the best of his knowledge (subject to normal year-end adjustments), as to
fairness of presentation, and consistency with generally accepted accounting
principles (except for changes concurred in by the Company's independent public
accountants) by the chief financial officer or the chief accounting officer of
the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Company (i) setting
forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.02 to 5.04,
inclusive, on the date of such financial statements, (ii) stating, to the best
of his knowledge, whether any Default exists on the date of such certificate and
(iii) if any Default then exists, setting forth the details thereof and the
action which the Company is taking or proposes to take with respect thereto;
(d) within 15 days after any officer of the Company becomes aware of
the existence of any Default, unless such Default shall have been cured before
the end of such 15 day period, a certificate of the chief financial officer or
the chief accounting officer of the Company setting forth the details of such
Default and the action which the Company is taking or proposes to take with
respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all reports on Forms
10-K, 10-Q and 8-K and similar regular and periodic reports which the Company
shall have filed with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice, (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting, officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; provided that no such certificate shall be required unless the
aggregate unpaid actual or potential liability of members of the ERISA Group
involved in all events referred to in (i) through (vii) above of which officers
of the Company have obtained knowledge and have not previously reported under
this clause (g) exceeds $25,000,000,
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(h) immediately after any officer of the Company obtains knowledge of a
change or a proposed change in the rating of the Company's outstanding senior
unsecured long-term debt securities by Xxxxx'x or S&P, a certificate of the
chief financial officer or chief accounting officer of the Company setting forth
the details thereof; and
(i) from time to time such additional information regarding the
financial position or business of the Company as the Agent, at the request of
any Bank, may reasonably request.
SECTION 5.02. Minimum Consolidated Net Worth. At no time will
Consolidated Net Worth be less than Minimum Consolidated Net Worth. "Minimum
Consolidated Net Worth" means $1,700,000,000; provided that such amount shall be
adjusted at the end of each Fiscal Quarter ending after December 31, 1997, as
follows:
(i) increased by 50% of Consolidated Net Income for such
Fiscal Quarter; provided that, if Consolidated Net Income for such
Fiscal Quarter is a negative number (a "Consolidated Net Loss"), an
amount up to 50% of such Consolidated Net Loss shall be applied first
to reduce Minimum Consolidated Net Worth to the extent of offsetting
prior increases (if any) in Minimum Consolidated Net Worth made
pursuant to this clause (i) during the same Fiscal Year and second to
reduce (but not below zero) any future increase in Minimum Consolidated
Net Worth that would otherwise be made pursuant to this clause (i)
during the same Fiscal Year; and
(ii) increased by an amount equal to 50% of all increases in
Consolidated Net Worth during such Fiscal Quarter attributable to sales
or issuances of the Company's Equity Securities; provided that an
amount up to 50% of all decreases in Consolidated Net Worth during such
Fiscal Quarter attributable to purchases or other retirements of the
Company's Equity Securities shall be applied first to offset any
increase in Minimum Consolidated Net Worth that would otherwise be made
pursuant to this clause (ii) at the end of such Fiscal Quarter, second
to reduce Minimum Consolidated Net Worth to the extent of offsetting
prior increases (if any) in Minimum Consolidated Net Worth made
pursuant to this clause (ii) and third to reduce (but not below zero)
any future increase in Minimum Consolidated Net Worth that would
otherwise be made pursuant to this clause (ii).
SECTION 5.03. Limitations on Debt. (a) The Company will not at any
time, and will not suffer or permit any Consolidated Subsidiary at any time to,
create, incur, issue, guarantee or assume any Debt if, immediately after giving
effect thereto, the ratio of (i) Consolidated Debt to (ii) the sum of
Consolidated Debt and Consolidated Adjusted Net Worth would exceed 53%.
(b) The Company will not at any time suffer or permit any Consolidated
Subsidiary to create, incur, issue, guarantee or assume any Debt if, immediately
after giving effect thereto, the aggregate outstanding amount (determined at
that time) of Debt of all Consolidated Subsidiaries (other than Debt owed to the
Company or one or more other Consolidated Subsidiaries) would exceed 30% of
Consolidated Net Worth.
(c) Subsections (a) and (b) above shall not prevent (i) the Company
from creating, incurring, issuing, guaranteeing or assuming Debt for the purpose
of extending, renewing or Refunding (as such term is defined in this subsection)
an equal or greater principal amount of Debt then outstanding of the Company or
of Debt then outstanding of a Consolidated Subsidiary or (ii) a Consolidated
Subsidiary from creating, incurring, issuing, guaranteeing or assuming Debt for
the purpose of extending, renewing or Refunding an equal or greater principal
amount of Debt then outstanding of such Consolidated Subsidiary, or (iii) the
creation, incurrence, issuance, guarantee or assumption of Debt owed to or owned
by the Company or a Consolidated Subsidiary. For purposes of this subsection
(c), Debt is deemed to be
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for the purpose of "Refunding" other Debt if and to the extent that (i) no later
than 5 Domestic Business Days after the refunding Debt is incurred, the Company
delivers to the Agent written notice stating that the purpose of such Debt is to
refund outstanding Debt and specifying the Debt to be refunded, (ii) the
proceeds of such refunding Debt are held in the form of cash or High Quality
Investments (free of any Lien except a Lien securing the specified Debt to be
refunded) until such specified Debt is repaid and (iii) such specified Debt to
be refunded is repaid within 45 days after the refunding Debt is incurred.
(d) For purposes of the limitations provided in, and computations
under, this Section, (i) when a corporation becomes a Consolidated Subsidiary it
shall be deemed to create at such time all the Debt it has outstanding
immediately after such time (provided that, if after giving effect to this
clause (i), the aggregate outstanding amount of Debt of all Consolidated
Subsidiaries (other than Debt owed to the Company or one or more other
Consolidated Subsidiaries) would be greater than 30% but less than 60% of
Consolidated Net Worth, this clause (i) shall not apply at the time such
corporation becomes a Consolidated Subsidiary, but such corporation shall be
deemed to create on the 15th day after it becomes a Consolidated Subsidiary all
the Debt it has outstanding on such 15th day), (ii) the disposition (other than
to a Consolidated Subsidiary or the Company) by the Company or a Subsidiary of
capital stock of any Consolidated Subsidiary which holds Debt of the Company or
any other Consolidated Subsidiary so that the Consolidated Subsidiary ceases to
be a Consolidated Subsidiary after such disposition shall be deemed the creation
of such Debt, and (iii) the disposition (other than to a Consolidated Subsidiary
or the Company) of Debt of the Company or any Consolidated Subsidiary by any
Consolidated Subsidiary or the Company shall be deemed the creation of such
Debt.
SECTION 5.04. Negative Pledge. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on June 30, 1996 securing Debt outstanding
on June 30, 1996 in an aggregate principal amount not exceeding
$30,000,000;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created
in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
solely for the purpose of financing all or any part of the cost of
acquiring such asset (or acquiring a corporation or other entity which
owned such asset); provided that such Lien attaches to such asset
concurrently with or within 90 days after such acquisition;
(d) any Lien on any asset of any corporation existing at the
time corporation is merged or consolidated with or into the Company or
a such Consolidated Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section; provided that such Debt is
not increased and is not secured by any additional assets;
(g) any Lien in favor of the holder of Debt (or any Person or
entity acting for or on behalf of such holder) arising pursuant to any
order of attachment, distraint or similar legal process arising in
connection with court proceedings so long as the execution or other
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enforcement thereof is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings;
(h) Liens incidental to the normal conduct of its business or
the ownership of its assets which (i) do not secure Debt, (ii) do not
secure any obligation in an amount exceeding $100,000,000 and (iii) do
not in the aggregate materially detract from the value of the assets of
the Company and its Consolidated Subsidiaries taken as a whole or in
the aggregate materially impair the use thereof in the operation of the
business of the Company and its Consolidated Subsidiaries taken as a
whole; and
(i) Liens securing Debt which are not otherwise permitted by
the foregoing clauses of this Section; provided that (i) the aggregate
outstanding principal amount of Debt secured by all such Liens on
current assets shall not at any time exceed 20% of Consolidated Current
Assets and (ii) the aggregate outstanding principal amount of Debt
secured by all such Liens (including Liens referred to in clause (i) of
this proviso) shall not at any time exceed the sum of (A) 20% of
Consolidated Current Assets plus (B) 3% of Consolidated Net Worth.
SECTION 5.05. Consolidations, Mergers and Sale of Assets. (a) The
Company will not directly or indirectly sell, lease, transfer or otherwise
dispose of all or substantially all of its assets, or merge or consolidate with
any other Person, or acquire any other Person through purchase of assets or
capital stock, unless either (i) the Company shall be the continuing or
surviving corporation or (ii) the successor or acquiring corporation (if other
than the Company) shall be a corporation organized under the laws of one of the
States of the United States of America and shall assume, by a writing
satisfactory in form and substance to the Required Banks, all of the obligations
of the Company under this Agreement and the Notes, including all covenants
herein and therein contained, in which case such successor or acquiring
corporation shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto.
(b) No disposition of assets, merger, consolidation or acquisition
referred to in subsection (a) of this Section shall be permitted if, immediately
after giving effect thereto, the Company would be in Default under any of the
terms or provisions of this Agreement.
SECTION 5.06. Compliance with Laws. The Company will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (i) the necessity of compliance therewith
is contested in good faith by appropriate proceedings, (ii) no officer of the
Company is aware that the Company or any Subsidiary has failed to comply
therewith or (iii) the Company has reasonably concluded that failure to comply
is not likely to have a material adverse effect on the business, financial
position or results of operations the Company and its Consolidated Subsidiaries,
taken as a whole.
SECTION 5.07. Use of Proceeds. None of the proceeds of the Loans made
under this Agreement will be used in violation of any applicable law or
regulation.
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ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any Loan,
or shall fail to pay within five days of the due date thereof any interest or
fees payable under this Agreement;
(b) the Company shall fail to observe or perform any covenant contained
in Sections 5.02 to 5.05, inclusive;
(c) the Company shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above), or any Subsidiary Borrower shall fail to observe or perform any
covenant contained in the Joinder Agreement to which it is a party, in each case
for 30 days after written notice thereof has been given to the Company by the
Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company in this Agreement or any amendment hereof or in any certificate,
financial statement or other document delivered pursuant to this Agreement or
made by any Borrower in any Joinder Agreement shall prove to have been incorrect
in any material respect when made or deemed to have been made; provided that, if
any representation and warranty deemed to have been made by the Company pursuant
to the last sentence of Section 3.02 as to the satisfaction of the condition of
borrowing set forth in clause (c)(i) of Section 3.02 shall have been incorrect
solely by reason of the existence of an Event of Default of which the Company
was not aware when such representation and warranty was deemed to have been made
and which was cured before or promptly after the Company became aware thereof,
then such representation and warranty shall be deemed not to have been incorrect
in any material respect;
(e) the Company or any of its Consolidated Subsidiaries shall fail to
make one or more payments in respect of Material Debt (other than Acquired Debt
in an aggregate outstanding principal amount not exceeding $50,000,000) when due
or within any applicable grace period, and such failure has not been waived;
(f) the Company or any Consolidated Subsidiary shall fail to observe or
perform any term, covenant or agreement contained in any instrument or agreement
(other than this Agreement) by which it is bound relating to Debt (other than
Acquired Debt in an aggregate outstanding principal amount not exceeding
$50,000,000), or any other event or condition referred to therein shall occur,
and the effect of all such failures, events and conditions (each a "default") is
to cause the maturity of Material Debt to be accelerated or to permit (any
applicable period of grace having expired) the holder or holders of Material
Debt (or any Person acting on their behalf) to accelerate the maturity thereof;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property under any such law, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it under any such
law, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they
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become due, or a resolution shall be adopted by either the shareholders or the
board of directors of such corporation to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Significant Subsidiary in any United States Federal court or
other court of competent jurisdiction seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property under any such law, and in each case such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Company
or any Significant Subsidiary as debtors under the federal bankruptcy laws as
now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $ 1,000,000 which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in
excess of $50,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by any member of the ERISA Group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation in excess
of $50,000,000; provided that no Event of Default shall exist under this clause
(i) with respect to any Prior Plan unless it is reasonably likely that one or
more members of the ERISA Group is liable with respect to the relevant Unfunded
Liabilities or current payment obligation, as the case may be;
(j) a judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 45
days;
(k) any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 30% or more of the
outstanding shares of common stock of the Company; or Continuing Directors shall
cease to constitute a majority of the board of directors of the Company; or
(l) any Event of Default occurs and is continuing according to the
terms of that certain Amended and Restated Credit Agreement dated as of November
14, 1996 among the Company, the Banks party thereto and Xxxxxx Guaranty Trust
Company of New York (as amended or modified from time to time, and including any
agreements refinancing or replacing such agreement).
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrowers terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by Required Banks, by notice to the
Borrowers declare the Loans (together with accrued interest thereon) to be, and
the Loans shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; provided that in the case of any of the Events
of Default specified in clause (g) or (h) above with respect to the Company or
any Significant Subsidiary, without any notice to any Borrower or any other act
by the Agent or the Banks, the Commitments shall thereupon terminate and the
Loans (together with accrued interest thereon)
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shall become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Bank One shall have the same rights
and powers under this Agreement as any other Bank and may exercise or refrain
from exercising the same as though it were not the Agent, and Bank One and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Company or any Subsidiary or affiliate of the Company
as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05 Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable (i) to the Banks for
any action taken or not taken by such Person in connection herewith with the
consent or at the request of the Required Banks or all Banks, if applicable, or
(ii) to the Banks or any Borrower for any action taken or not taken by such
Person in the absence of such Person's own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrowers; (iii) the satisfaction of
any condition specified in Article 3, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent (to the extent not reimbursed by the
Borrowers) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from the
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Agent's gross negligence or willful misconduct) that the Agent may suffer or
incur in connection with this Agreement or any action taken or omitted by the
Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrowers. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $250,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's and Arranger's Fee. The Company shall pay to each
of the Agent and the Arranger for their own account such fees as agreed upon
between the Company, the Agent and the Arranger and set forth in a separate fee
letter among the Agent, the Arranger and the Company.
SECTION 7.10. Agent, Syndication Agents. No Syndication 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, none of such Banks or the Agent shall have or be deemed to have a
fiduciary relationship with any Bank. Each Bank hereby makes the same
acknowledgments with respect to such Banks as it makes with respect to the Agent
in Section 7.07.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any Eurocurrency
Borrowing:
(i) the Agent determines that deposits in the applicable
Agreed Currency (in the applicable amounts) are not being offered in
the relevant market for such Interest Period, or
(ii) Banks having more than 50% of the aggregate amount of the
Commitments advise the Agent that the Eurocurrency Reference Rate, as
determined by the Agent, will not adequately and fairly reflect the
cost to such Banks of funding their Eurocurrency Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, (x) the obligations of the Banks to
make, continue or convert Eurocurrency Loans in such Agreed Currency shall
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be suspended, and (y) if the Agreed Currency is Dollars, each affected Loan
shall be converted into a Floating Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the relevant Borrower notifies the
Agent at least two Domestic Business Days before the date of any such
Eurocurrency Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Floating Rate Borrowing.
SECTION 8.02. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, 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 Eurocurrency Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Eurocurrency Lending Office) to honor its
binding legal obligation hereunder to make, maintain or fund its Eurocurrency
Loans in any Agreed Currency to any Borrower and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the other Banks and the
Borrowers, whereupon until such Bank notifies the Borrowers and the Agent that
the circumstances giving rise to such suspension no longer exist, the obligation
of such Bank to make Eurocurrency Loans in such currency to such Borrower or to
continue outstanding Loans to such Borrower as Eurocurrency Loans in such
currency shall be suspended. Before giving any notice to the Agent pursuant to
this Section, such Bank shall designate a different Eurocurrency Lending Office
if such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
notice is given with respect to a Borrower's Eurocurrency Loans denominated in
Dollars, each such Loan of such Bank then outstanding shall be converted to a
Floating Rate Loan either (a) on the last day of the then current Interest
Period applicable to such Loan if such Bank may lawfully continue to maintain
and fund such Loan as a Eurocurrency Loan in Dollars to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such loan as a Eurocurrency Loan in Dollars to such day.
Interest and principal on any such Floating Rate Loan shall be payable on the
same dates as, and on a pro rata basis with, the interest and principal payable
on the related Eurocurrency Loans of the other Banks. If such notice is given
with respect to a Borrower's Eurocurrency Loans denominated in an Agreed
Currency other than Dollars, such Borrower shall prepay such Loan (i) on the
last day of the then current Interest Period if such Bank may lawfully continue
to maintain and fund such Loan as a Eurocurrency Loan in such currency to such
day, or (ii) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan as a Eurocurrency Loan in such currency
to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after the
date of this Agreement, the adoption of any applicable law, rule or regulation,
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) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency (a "Change in Law"):
(i) shall subject any Bank (or its Applicable Lending Office)
to any tax, duty or other charge with respect to its Eurocurrency
Loans, its Note or its obligation to make Eurocurrency Loans, or shall
change the basis of taxation of payments to any Bank (or its Applicable
Lending Office) of the principal of or interest on its Eurocurrency
Loans or any other amounts due under this Agreement in respect of its
Eurocurrency Loans or its obligation to make Eurocurrency Loans (except
for changes in the rate of tax on the overall net income of such Bank
or its Applicable Lending Office or franchise or similar taxes imposed
by the United States of America or any State or political subdivision
thereof or imposed by the jurisdiction in which such Bank's principal
executive office or Applicable Lending Office is located); or
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(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding, with
respect to any Eurocurrency Loan, any such requirement included in an
applicable Eurocurrency Reserve Percentage or Cost Rate), special
deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank
(or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its Eurocurrency Loans, its Note or its obligation
to make Eurocurrency Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Eurocurrency Loan,
or to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the relevant Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction; provided that, such Bank shall not be
entitled to such compensation for increased costs or reductions incurred more
than 90 days prior to the date on which it actually demands (or notifies the
relevant Borrower that it will demand) such compensation, provided, further that
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect. If any Bank demands compensation under
this subsection (a), the relevant Borrower may at any time, upon at least five
Eurocurrency Business Days' prior notice to such Bank through the Agent, prepay
in full each then outstanding affected Eurocurrency Loan of such Bank, together
with accrued interest thereon to the date of prepayment. Concurrently with
prepaying each such Eurocurrency Loan of such Bank, such Borrower shall borrow a
Floating Rate Loan (or, if such Borrower shall so elect in its notice of
prepayment, a Eurocurrency Loan of another type) in an equal principal amount
from such Bank for an Interest Period coinciding with the remaining term of the
Interest Period applicable to such Eurocurrency Loan, and such Bank shall make
such a Loan notwithstanding any provision herein to the contrary.
(b) If any Bank shall have determined that, after the date of this
Agreement, 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 any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank (or its Parent) as
a consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided that such
Bank shall not be entitled to such compensation for reductions incurred more
than 90 days prior to the date on which it actually demands (or notifies the
Company that it will demand) such compensation, provided, further that if the
Change in Law giving rise to such reductions in retroactive, then the 90-day
period referred to above shall be extended to include the period of retroactive
effect thereof.
(c) Each Bank will promptly notify the Borrowers and the Agent of any
event of which it has knowledge, occurring after the date of this Agreement,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such
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Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error, provided that the determination of such amount or amounts is
made on a reasonable basis. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.04. Market Disruption. Notwithstanding the satisfaction of
all conditions referred to in Article 2 and Article 3 with respect to any
Borrowing in any Agreed Currency other than Dollars, if there shall occur on or
prior to the date of such Borrowing any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Agent or the
Required Banks make it impracticable for the Eurocurrency Loans comprising such
Borrowing to be denominated in the Agreed Currency specified by the relevant
Borrower, then the Agent shall forthwith give notice thereof to such Borrower
and the Banks, and such Loans shall not be denominated in such Agreed Currency,
but shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Notice of Borrowing or Conversion/Continuation Notice, as the case
may be, as Floating Rate Loans, unless such Borrower notifies the Agent at least
four Eurocurrency Business Days or such shorter period of time agreed to by the
Agent before such date that (i) it elects not to borrow on such date or (ii) it
elects to borrow on such date in a different Agreed Currency, as the case may
be, in which the denomination of such Loans would in the opinion of the Agent
and the Required Banks be practicable and in an aggregate principal amount equal
to the Dollar Amount of the aggregate principal amount specified in the related
Notice of Borrowing or Conversion/Continuation Notice, as the case may be.
SECTION 8.05. Substitute Loans. If (i) the obligation of any Bank to
make Eurocurrency Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03 and the Company shall, by at
least five Eurocurrency Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section 8.05 shall apply to such
Bank, then, unless and until such Bank notifies the Company and the Agent that
the circumstances giving rise to such suspension or demand for compensation no
longer apply, all Loans which would otherwise be made by such Bank as (or
continued as or converted to) Eurocurrency Loans shall be made instead as
Floating Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurocurrency Loans of the other Banks). If
such Bank notifies the Company that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Floating Rate Loan shall be converted into a Eurocurrency Loan on the
first day of the next succeeding Interest Period applicable to the related
Eurocurrency Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Eurocurrency Loans has been suspended pursuant to Section 8.02 or (ii)
any Bank has demanded compensation under Section 8.03, the Company shall have
the right, with the assistance of the Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Banks) to purchase the
Loans and Notes and assume the Commitment of such Bank.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile or similar writing) and shall be given to such party: (x) in the case
of any Borrower or the Agent, at its address or its facsimile or telex number
set forth
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on the signature pages hereof or in the relevant Joinder Agreement, (y) in the
case of any Bank, at its address or its facsimile or telex number set forth in
its Administrative Questionnaire or (z) in the case of any party, such other
address or facsimile or telex number as such party may hereafter specify for the
purpose by notice to the Agent and the Borrowers. Each such notice, request or
other communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section 9.01 and the
appropriate answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 9.01; provided that notices to the Agent
under Article 2 or Article 8 shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses of the Agent and the
Arranger, including reasonable fees and disbursements of counsel for the Agent
and the Arranger, in connection with the preparation of this Agreement, any
waiver or consent hereunder or any amendment hereof or any Default hereunder and
(ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent, the Arranger and each Bank, including reasonable fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Company shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any governmental authority by
reason of the execution and delivery of this Agreement or the Notes.
(b) The Company agrees to indemnify and defend each Bank and their
respective directors, officers, agents, employees and affiliates from, and hold
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses substantially relating to or arising out of (i) any Borrower's
actual or proposed use of proceeds of Loans for the purpose of acquiring equity
securities of any other Person, or (ii) a change of ownership or control of any
Borrower, including but not limited to reasonable attorney's fees and settlement
costs; provided that (x) the foregoing indemnity shall not apply to any losses,
liabilities, claims, damages or expenses that do not relate to or arise out of
this Agreement or the activities of the parties hereto in connection herewith
and (y) no Bank shall have the right to be indemnified hereunder for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Loan held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Loan held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Loans held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of any Borrower other than its
indebtedness under the Loans. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Loan, whether or not acquired pursuant to the foregoing arrangements, may
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exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrowers and the Required Banks
(and, if the rights or duties of the Agent or the Swingline Lender are affected
thereby, by the Agent or the Swingline Lender, as the case may be), provided
that that no such amendment or waiver shall, unless signed by all the Banks, (i)
increase or decrease the Commitment of any Bank (except for a ratable decrease
in the Commitments of all the Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for the termination of the
Commitments, (iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement, (v) amend the definition of Agreed
Currency, (vi) amend Article 10, or (vii) amend this Section 9.05.
(b) The Company may add Subsidiary Borrowers to this Agreement from
time to time by designating any Wholly-Owned Subsidiary incorporated or formed
in any jurisdiction other than any State of the United States of America as a
Subsidiary Borrower hereunder so long as such new Subsidiary Borrower executes
and delivers to the Agent a Joinder Agreement together with all corporate or
organizational documents and authorizing resolutions and legal opinions
reasonably requested by the Agent and the new Subsidiary Borrower executes all
other agreements and takes such other action reasonably requested by the Agent.
The Company may also remove any Subsidiary as a Subsidiary Borrower upon (i)
written notice by the Company to the Agent to such effect and (ii) repayment in
full of all outstanding Loans of such Subsidiary Borrower.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no Borrower may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks, except as provided in Section 5.05.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the Participant. The
Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article 8 with respect
to its participating interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, but not
less than the lesser of (i) $10,000,000 and in multiples of $1,000,000 or (ii)
the remaining amount of the assigning Bank's commitment (calculated as
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39
at the date of such assignment) of its rights and obligations under this
Agreement and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit D hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Company and the Agent (which
consent will not unreasonably be withheld); provided that if an Assignee is a
Bank or an affiliate of such transferor Bank, or if an Event of Default has
occurred and is continuing, no such consent of the Company shall be required.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Agent and the Company shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $3,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Company and the Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 2.14.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Loans and Notes, if any, to a Federal Reserve Bank.
No such assignment shall release the transferor Bank from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Company's prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such greater payment did not
exist.
(f) (i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Designating Lender") may, with the approval of the Company (which
approval may be withheld in the sole discretion of the Company), grant to one or
more special purpose funding vehicles (each, an "SPV", identified as such in
writing from time to time by the Designating Lender to the Agent and the
Company, the option to provide to a Borrower all or any part of any Loan that
such Designating Lender would otherwise be obligated to make to such Borrower
pursuant to this Agreement, provided that (A) nothing herein shall constitute a
commitment by any SPV to make any Loan, (B) if any SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Designating Lender shall be obligated to make such Loan pursuant to the terms
hereof, (C) the Designating Lender shall remain liable for any indemnity or
other payment obligation with respect to its Commitment hereunder and (D) the
Borrowers shall not incur any additional costs or expenses as a result of any
such grant by a Designated Lender to an SPV. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Designating Lender to the same
extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have
all the rights that a Lender making such Loans or portion thereof would have had
under this Agreement; provided, however, that each SPV shall have granted to its
Designating Lender an irrevocable power of attorney, to deliver and receive all
communications and notices under this Agreement (and any related documents) and
to exercise on such SPV's behalf, all of such SPV's voting rights under this
Agreement. No additional Note
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shall be required to evidence the Loans or portion thereof made by an SPV; and
the related Designating Lender shall be deemed to hold its Note as agent for
such SPV to the extent of the Loans or portion thereof funded by such SPV. In
addition, any payments for the account of any SPV shall be paid to its
Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or payment under this Agreement for which a Lender would otherwise
be liable. In furtherance of the foregoing, each party hereto hereby agrees
(which agreements shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other person in instituting against, such SPV
any bankruptcy, reorganization, arrangement insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in
this 9.06(f) or otherwise in this Agreement, any SPV may, with the approval of
the Company (which approval may be withheld in the sole discretion of the
Company) (A) at any time and without paying any processing fee therefor, assign
or participate all or a portion of its interest in any Loans to the Designating
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (B) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancements to such SPV. This
9.06(f) may not be amended without the written consent of any Designating Lender
affected thereby.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Confidentiality. Each Bank agrees that all documentation
and other information made available by the Borrowers to such Bank, whether
under the terms of this Agreement or any other loan agreement, shall (except to
the extent required by legal or governmental process or otherwise by law, or if
such documentation and other information is publicly available or hereafter
becomes publicly available other than by action of any Bank, or was theretofore
known to such Bank independent of any disclosure thereto by the Borrowers) be
held in the strictest confidence by such Bank and used solely in connection with
administration of loans from time to time outstanding from such Bank to the
Borrowers; provided that (i) such Bank may disclose such documentation and other
information to its affiliates or any other bank or other institution to which
such Bank sells or proposes to sell a participation in its Loans hereunder, if
such affiliate or other bank or institution, prior to such disclosure, agrees
for the benefit of the Borrowers to comply with the provisions of this Section,
(ii) such Bank may disclose the provisions of this Agreement and the Notes and
the amounts, maturities and interest rates of its Loans to any purchaser or
potential purchaser of such Bank's interest in any Loan and (iii) such Bank may
disclose such documentation and other information to the extent required, in
such Bank's good faith judgment, to enforce its rights under this Agreement and
the Notes.
SECTION 9.09. Severalty of Obligations. The obligations of the Banks
hereunder are several. No failure by any Bank to perform its obligations
hereunder shall relieve any other Bank of its obligations hereunder, and no Bank
shall be responsible for the performance of any other Bank's obligations
hereunder or for any action taken or omitted by any other Bank hereunder.
SECTION 9.10. Michigan Law; Submission to Jurisdiction. This Agreement
and each Note shall be construed in accordance with and governed by the laws of
the State of Michigan. Each Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Eastern District
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41
of Michigan and of any Michigan State court sitting in Detroit for purposes of
all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 9.11. Counterparts; Integration. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 9.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE 10
GUARANTY
As an inducement to the Banks and the Agent to enter into the
transactions contemplated by this Agreement, the Company agrees with the Banks
and the Agent as follows:
SECTION 10.01. Guarantee of Obligations. (a) The Company
hereby (i) guarantees, as principal obligor and not as surety only, to the Banks
the prompt payment of the principal of and any and all accrued and unpaid
interest (including interest which otherwise may cease to accrue by operation of
any insolvency law, rule, regulation or interpretation thereof) on the Loans and
all other obligations of the Subsidiary Borrowers to the Banks and the Agent
under this Agreement when due, whether by scheduled maturity, acceleration or
otherwise, all in accordance with the terms of this Agreement and the Notes,
including, without limitation, fees, reimbursement obligations, default
interest, indemnification payments and all reasonable costs and expenses
incurred by the Banks and the Agent in connection with enforcing any obligations
of the Subsidiary Borrowers hereunder, including without limitation the
reasonable fees and disbursements of counsel, (ii) guarantees the prompt and
punctual performance and observance of each and every term, covenant or
agreement contained in this Agreement and the Notes to be performed or observed
on the part of the Subsidiary Borrowers and (iii) agrees to make prompt payment,
on demand, of any and all reasonable costs and expenses incurred by the Banks or
the Agent in connection with enforcing the obligations of the Company hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
(all of the foregoing being collectively referred to as the "Guaranteed
Obligations").
(b) If for any reason any duty, agreement or
obligation of any Subsidiary Borrower contained in this Agreement shall not be
performed or observed by any Subsidiary Borrower as provided therein, or if any
amount payable under or in connection with this Agreement shall not be paid in
full when the same becomes due and payable, the Company undertakes to perform or
cause to be performed promptly each of such duties, agreements and obligations
and to pay forthwith each such amount to the Agent for the account of the Banks
regardless of any defense or setoff or counterclaim which any Subsidiary
Borrower may have or assert, and regardless of any other condition or
contingency.
SECTION 10.02 Nature of Guaranty. The obligations of the
Company hereunder constitute an absolute and unconditional and irrevocable
guaranty of payment and not a guaranty of collection
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and are wholly independent of and in addition to other rights and remedies of
the Banks and the Agent and are not contingent upon the pursuit by the Banks and
the Agent of any such rights and remedies, such pursuit being hereby waived by
the Company.
SECTION 10.03. Waivers and Other Agreements. The Company
hereby unconditionally (a) waives any requirement that the Banks or the Agent,
upon the occurrence of an Event of Default first make demand upon, or seek to
enforce remedies against any Subsidiary Borrower before demanding payment under
or seeking to enforce the obligations of the Company hereunder, (b) covenants
that the obligations of the Company hereunder will not be discharged except by
complete performance of all obligations of the Subsidiary Borrowers contained in
this Agreement and the Notes, (c) agrees that the obligations of the Company
hereunder shall remain in full force and effect without regard to, and shall not
be affected or impaired, without limitation, by any invalidity, irregularity or
unenforceability in whole or in part of this Agreement or the Notes, or any
limitation on the liability of the Subsidiary Borrowers thereunder, or any
limitation on the method or terms of payment thereunder which may or hereafter
be caused or imposed in any manner whatsoever (including, without limitation,
usury laws), (d) waives diligence, presentment and protest with respect to, and
any notice of default or dishonor in the payment of any amount at any time
payable by the Subsidiary Borrowers under or in connection with this Agreement
or the Notes, and further waives any requirement of notice of acceptance of, or
other formality relating to, the obligations of the Company hereunder and (e)
agrees that the Guaranteed Obligations shall include any amounts paid by the
Subsidiary Borrowers to the Banks or the Agent which may be required to be
returned to the Subsidiary Borrowers or to their representative or to a trustee,
custodian or receiver for any Subsidiary Borrower.
SECTION 10.04. Obligations Absolute. The obligations,
covenants, agreements and duties of the Company under this Agreement shall not
be released, affected or impaired by any of the following whether or not
undertaken with notice to or consent of the Company: (a) an assignment or
transfer, in whole or in part, of the Loans made to any Subsidiary Borrower or
of this Agreement or any Note although made without notice to or consent of the
Company, or (b) any waiver by any Bank or the Agent or by any other person, of
the performance or observance by any Subsidiary Borrower of any of the
agreements, covenants, terms or conditions contained in this Agreement or in the
Notes, or (c) any indulgence in or the extension of the time for payment by any
Subsidiary Borrower of any amounts payable under or in connection with this
Agreement or any Note, or of the time for performance by any Subsidiary Borrower
of any other obligations under or arising out of this Agreement or any Note, or
the extension or renewal thereof, or (d) the modification, amendment or waiver
(whether material or otherwise) of any duty, agreement or obligation of any
Subsidiary Borrower set forth in this Agreement or any Note (the modification,
amendment or waiver from time to time of this Agreement and the Notes being
expressly authorized without further notice to or consent of the Company), or
(e) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of any Subsidiary Borrower or any
receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting any Subsidiary Borrower or any of its assets, or (f) the
merger or consolidation of any Subsidiary Borrower or the Company with any other
person, or (g) the release of discharge of any Subsidiary Borrower or the
Company from the performance or observance of any agreement, covenant, term or
condition contained in this Agreement or any Note, by operation of law, or (h)
any other cause whether similar or dissimilar to the foregoing which would
release, affect or impair the obligations, covenants, agreements or duties of
the Company hereunder.
SECTION 10.05. No Investigation by Banks or Agent. The Company
hereby waives unconditionally any obligation which, in absence of such
provision, the Banks or the Agent might otherwise have to investigate or to
assure that there has been compliance with the law of any jurisdiction with
respect to the Guaranteed Obligations recognizing that, to save both time and
expense, the Company has requested that the Banks and the Agent not undertake
such investigation. The Company hereby expressly confirms that the obligations
of the Company hereunder shall remain in full force and effect without regard to
compliance or
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noncompliance with any such law and irrespective of any investigation or
knowledge of any Bank or the Agent of any such law.
SECTION 10.06. Indemnity. As a separate, additional and
continuing obligation, the Company unconditionally and irrevocably undertakes
and agrees with the Banks and the Agent that, should the Guaranteed Obligations
not be recoverable from the Company under Section 10.01 for any reason
whatsoever (including, without limitation, by reason of any provision of this
Agreement or the Notes or any other agreement or instrument executed in
connection herewith being or becoming void, unenforceable, or otherwise invalid
under any applicable law) then, notwithstanding any knowledge thereof by any
Bank or the Agent at any time, the Company as sole, original and independent
obligor, upon demand by the Agent, will make payment to the Agent for the
account of the Banks and the Agent of the Guaranteed Obligations by way of a
full indemnity in such currency and otherwise in such manner as is provided in
this Agreement and the Notes.
SECTION 10.07 Subordination, Subrogation, Reinstatement, Etc. The
Company agrees that any present or future indebtedness, obligations or
liabilities of any Subsidiary Borrower to Company shall be fully subordinate and
junior in right and priority of payment when due to any present or future
indebtedness, obligations or liabilities of the Subsidiary Borrowers to the
Banks and the Agent. The Company waives any right of subrogation to the rights
of any Bank or the Agent against any Subsidiary Borrower or any other person
obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which the Company may make pursuant to this Agreement and the Notes, and any
right of recourse to security for the debts and obligations of each Subsidiary
Borrower, unless and until the entire principal balance of and interest on the
Guaranteed Obligations shall have been paid in full, and to the extent the
Company is an "insider" as defined in Section 101(2) of the United States
Bankruptcy Code, such waiver shall be permanent and shall not be revoked or
terminated in any event, including payment in full of the principal and interest
of the Guaranteed Obligations. If at any time any payment of any Guranteed
Obligations by any Subsidiary Borrower is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of any
Subsidiary Borrower or otherwise, each of the Company's obligations hereunder
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duty executed by their respective authorized officers as of the day and year
first above written.
MASCO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President - Controller
and Treasurer
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President and Vice President
General Counsel
Telecopy Number: (000) 000-0000
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45
BANK ONE, NA, (Main office Chicago) as Agent
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Title: Senior Managing Director
Attention: Xx. Xxxxxxx Xxxxxxxxxxxx
000 Xxxxxxxx, Xxxxx XX00000
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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46
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Warning
Title: Assistant Treasurer
Attention: Xxxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy: (000) 000-0000
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47
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx Xxxx
Title: Vice President
Attention: Xxxxxxxx Xxxx
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
46
48
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
Attention: Xxxx Xxxxx
00 Xxxxxxx Xx.
Xxxxxx XX0X 0XX
Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (171) 699-4140
Attention: Xxxxxxx Xxxxxxxxxxxx
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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49
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Account Officer
Attention: Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
48
00
XXXXX XXXX XX XXXXXX
By: /s/ X. X. Xxxxxx
Title: Senior Manager
Attention: X.X. Xxxxxx
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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51
WACHOVIA BANK N.A.
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
Attention: Xx. Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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52
KEYBANK NATIONAL ASSOCIATION
By: /s/ X. X. Xxxxxx
Title: Vice President
Attention: X.X. Xxxxxx
000 Xxxxxx Xxxxxx, XX XX
XX-00-000000
Xxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
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53
COMMITMENT SCHEDULE
Name of Bank Commitment
------------ ----------
Bank One, NA (Main Office Chicago) $337,500,000
Commerzbank AG New York and Grand Cayman Branches $168,750,000
Bank of America, N.A. $168,750,000
Barclays Bank, PLC $87,500,000
Comerica Bank $87,500,000
Royal Bank of Canada $50,000,000
Wachovia Bank N.A. $50,000,000
KeyBank National Association $50,000,000
--------------
Total Commitments $1,000,000,000
==============
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PRICING SCHEDULE
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below (expressed as
basis points):
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
Level I Level II Level III Level IV
Status Status Status Status Level V Status
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
Facility Fee 7.0 8.0 10.0 12.5 17.5
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
Eurocurrency Margin 33.0 39.5 50.0 62.5 82.5
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
Utilization fee >
25% but < 50% 10.0 10.0 12.5 12.5 12.5
-
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
Utilization fee > 20.0 20.0 25.0 25.0 25.0
50%
------------------------ ---------------- ----------------- ---------------- ------------------ --------------------
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's Xxxxx'x
Rating is A2 or better and the Company's S&P Rating is A or better.
"Level II Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status and (ii) the Company's Xxxxx'x Rating is A3 or
better or the Company's S&P Rating is A- or better.
"Level III Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status or Level II Status and (ii) the Company's Xxxxx'x
Rating is Baa1 or better or the Company's S&P Rating is BBB+ or better.
"Level IV Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status, Level II Status or Level III Status and (ii) the
Company's Xxxxx'x Rating is Baa2 or better or the Company's S&P rating is BBB or
better.
"Level V Status" exists at any date if, on such date, the Company has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"Xxxxx'x Rating" means, at any time, the rating issued by Xxxxx'x Investors
Service, Inc. and then in effect with respect to the Company's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and Poor's Rating
Services, a division of The McGraw Hill Companies, Inc., and then in effect with
respect to the Company's senior unsecured long-term debt securities without
third-party credit enhancement.
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"Status" means either Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status.
The credit ratings to be utilized for purposes of this Schedule are the
ratings assigned to outstanding senior unsecured long-term debt securities of
the Company without third party credit support. Ratings assigned to any
obligation of the Company which is secured or which has the benefit of third
party credit support shall be disregarded.
The Applicable Margin shall be determined in accordance with the
foregoing table based on the Company's Status as determined from its
then-current Moody's and S&P Ratings. The credit rating in effect on any date
for the purposes of this Schedule is that in effect at the close of business on
such date. If at any time the Company has no Xxxxx'x Rating and no S&P Rating,
Level V Status shall exist. Notwithstanding the foregoing, if at any time there
exists a difference of more than one level between the Xxxxx'x Rating and the
S&P Rating, the Status shall be determined as if the higher rating were one
level above the lower of the two ratings.
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SCHEDULE 1
EUROCURRENCY PAYMENT OFFICES
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EXHIBIT A
NOTE
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--------------
For value received, [MASCO CORPORATION, a Delaware corporation] [insert
name of Subsidiary Borrower] (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in the relevant Agreed Currency at the relevant office of
the Agent and as required under the Credit Agreement referenced below.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof, provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of March 20, 2000 among the Borrower, the banks party
thereto and Bank One, NA, as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. This note shall be construed in accordance with
and governed by the laws of the State of Michigan. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof
[MASCO CORPORATION][Subsidiary Borrower]
By
-------------------------------------
Title
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Type of Loan Principal Maturity Notation
Loan Repaid Date Made By
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EXHIBIT B
SWINGLINE NOTE
--------, ----
--------------
For value received, MASCO CORPORATION, a Delaware corporation (the
"Borrower"), promises to pay to the order of Bank One, NA (the "Swingline
Lender"), for the account of its Applicable Lending Office, the unpaid principal
amount of each Swingline Loan made by the Swingline Lender to the Borrower
pursuant to the Credit Agreement referred to below on the day required under the
Credit Agreement referred to below. The Borrower promises to pay interest on the
unpaid principal amount of each such Swingline Loan on the dates and at the rate
or rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in the relevant Agreed Currency at the relevant
office of the Agent and as required under the Credit Agreement referenced below.
All Swingline Loans made by the Swingline Lender, the respective types
and maturities thereof and all repayments of the principal thereof may be
recorded by the Swingline Lender and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding shall be endorsed by the Swingline Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof, provided that the failure of the Swingline Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is the Swingline Note referred to in the Amended and Restated
Credit Agreement dated as of March 20, 2000 among the Borrower, the banks party
thereto and Bank One, NA, as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. This note shall be construed in accordance with
and governed by the laws of the State of Michigan. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof
MASCO CORPORATION
By
-----------------------------------
Title
------------------------------
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Swingline Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Type of Loan Principal Maturity Notation
Loan Repaid Date Made By
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EXHIBIT C
OPINION OF
COUNSEL FOR THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Bank One, NA, as Agent
-------------
--------, -------- -------
Dear Sirs:
I am Senior Vice President-General Counsel of Masco Corporation (the
"Company") and am familiar with the Amended and Restated Credit Agreement dated
as of March 20, 2000 (the "Credit Agreement") among the Company, and certain of
its Subsidiaries as borrowers, the Banks party thereto as lenders, Commerzbank
Aktiengesellschaft and Bank of America Securities LLC, as Syndication Agents,
and Bank One, NA, as Agent. Terms defined in the Credit Agreement are used
herein as therein defined. This opinion is being rendered to you pursuant to
Section 3.01(c) of the Credit Agreement.
I have examined originals or copies, certified or otherwise, identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of Delaware, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its businesses substantially as now conducted.
2. The execution, delivery and performance by the Company of the Credit
Agreement and the Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action of the Company, require no
action in respect of the Company by, or filing in respect of the Company with,
any governmental body, agency or official (except filings under the Securities
Exchange Act of 1934) and do not contravene, or constitute a default under any
provision of applicable law or regulation or of the certificate or by-laws of
the Company or of any agreement, judgment, injunction, order, of incorporation
in decree or other instrument known to me to be binding upon the Company or
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries under any such agreement or instrument.
3. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Notes constitute valid and binding obligations of the
Company, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
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4. There is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which, in my opinion, is likely to have a material adverse effect on
the business or financial position of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of the Credit Agreement or the Notes.
Very truly yours,
Xxxx X. Xxxxxxx
Senior Vice President-
General Counsel
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EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of , , among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), MASCO CORPORATION (the "Company") and
Bank One, NA, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Credit Agreement dated as of March 20, 2000
among the Company, and certain of its Subsidiaries as borrowers, the Banks party
thereto as lenders, Commerzbank Aktiengesellschaft and Bank of America
Securities LLC, as Syndication Agents, and Bank One, NA, as Agent (the "Credit
Agreement"),
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate principal amount at
any time outstanding not to exceed $ ;
WHEREAS, Loans made to the Borrowers by the Assignor under the Credit
Agreement in the aggregate principal amount of $ are outstanding at the
date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee, the Company and the Agent and
the payment of the amount specified in Section 3 required to be paid on the date
hereof (1) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
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SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $ .(1) It is
understood that facility fees accrued to the date hereof are for the account of
the Assignor and such fees accruing from and including the date hereof [in
respect of the Assigned Amount] are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
9.06(c) of the Credit Agreement, The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Company agrees to execute and deliver or cause to be executed and delivered a
Note payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Company, or the validity and enforceability of the obligations of the Company in
respect of the Credit Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company.
SECTION 6. Governing Law . This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
SECTION 7 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
------------------------------
(1) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula
rather than as a fixed sum.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authored officers as of the date first
above written.
[ASSIGNOR]
By
----------------------------------
Title:
------------------------
[ASSIGNEE]
By
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Title:
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[MASCO CORPORATION]
By
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Title:
------------------------
BANK ONE, NA, as Agent
By
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Title:
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EXHIBIT E
JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated as of , , is
entered into by (the "New Subsidiary Borrower") pursuant to
the Amended and Restated Credit Agreement dated as of March 20, 2000 as
amended, supplemented or otherwise modified from time to time (the "Credit
Agreement"), by and among Masco Corporation, a Delaware corporation, certain
Subsidiary Borrowers which are now or may hereafter become a party thereto
from time to time, the Banks party thereto, Commerzbank Aktiengesellschaft and
Bank of America Securities LLC, as Syndication Agents, and Bank One, NA, as
Administrative Agent (the "Agent"). Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
WITNESSETH:
WHEREAS, the parties to this Joinder Agreement wish to
designate the New Subsidiary Borrower as a Subsidiary Borrower under the
Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto hereby agree as follows:
1. The New Subsidiary Borrower hereby acknowledges that it has
received and reviewed a copy of the Credit Agreement and unconditionally
agrees to: (a) join the Credit Agreement as a Subsidiary Borrower, (b) be
bound by, and hereby ratifies and confirms, all covenants, agreements,
consents, submissions, appointments, acknowledgments and other terms and
provisions attributable to a Subsidiary Borrower in the Credit Agreement; and
(c) perform all obligations required of it as a Subsidiary Borrower by the
Credit Agreement.
2. The New Subsidiary Borrower hereby represents and warrants
that the representations and warranties with respect to it contained in, or made
or deemed made by it in, the Credit Agreement are true and correct on the date
hereof. In addition, the New Subsidiary Borrower represents and warrants:
(i) it is a corporation duly incorporated, validly existing and in
good standing under the law of its jurisdiction of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its businesses substantially as now
conducted.
(ii) The execution, delivery and performance by the New
Subsidiary Borrower of this Agreement, the Credit Agreement
and the Notes are within its corporate powers, have been duly
authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or regulation
or of the charter documents or by-laws of the New Subsidiary
Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it or result in the
creation or imposition of any Lien on any asset of the New
Subsidiary Borrower.
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(iii) This Agreement and the Credit Agreement constitute valid and
binding agreements of the New Subsidiary Borrower and each
Note of the New Subsidiary Borrower, when executed and
delivered in accordance with the Credit Agreement, will
constitute a valid and binding obligation of the New
Subsidiary Borrower.
(iv) The New Subsidiary Borrower is not an "investment company" or
a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
3. The New Subsidiary Borrower agrees that, so long as any
Bank has any Commitment under the Credit Agreement or any amount is payable
under any Note or otherwise under the Credit Agreement, it shall:
(i) Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence.
(ii) Not permit or suffer or exist any change in ownership of such
New Subsidiary Borrower which results in any person other than
the Company or any Subsidiary of the Company owning any of the
issued and outstanding capital stock or other equity interests
of such Subsidiary.
4. The address and jurisdiction of incorporation of the New
Subsidiary Borrower is set forth in Schedule A to this Joinder Agreement.
5. The Company agrees that its guarantee contained in Article
X of the Credit Agreement shall remain in full force and effect after giving
effect to this Joinder Agreement, including without limitation after including
the New Subsidiary Borrower as a Subsidiary Borrower under the Credit Agreement.
6. This Joinder Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Michigan.
7. This Joinder Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Joinder Agreement to be duly executed and delivered as of the day and year set
forth above.
------------------------,
as a Subsidiary Borrower
By:
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Name:
----------------------------
Title:
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MASCO CORPORATION
By:
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Name:
----------------------------
Title:
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Accepted and Acknowledged:
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BANK ONE, NA
as Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
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SCHEDULE A
ADMINISTRATIVE INFORMATION
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EXHIBIT F
NOTICE OF BORROWING
[Date]
To each Bank party to the referenced
Amended and Restated Credit Agreement
c/o Bank One, NA
as Administrative Agent for the Banks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: (for Borrowings in Dollars)
(for Borrowings in Agreed Currencies other than Dollars)
The Borrower (as hereinafter named), hereby requests a Borrowing
pursuant to Section 2.01(a) of the Amended and Restated Credit Agreement, dated
as of March 20, 2000, as amended, supplemented or otherwise modified from time
to time (the "Credit Agreement"), by and among Masco Corporation, a Delaware
corporation, certain Subsidiary Borrowers which are now or may hereafter become
a party thereto from time to time, the Banks party thereto, Commerzbank
Aktiengesellschaft and Bank of America Securities LLC, as Syndication Agents,
and Bank One, NA, as Administrative Agent (the "Agent"). Capitalized terms used
but not defined herein shall have the respective meanings ascribed thereto in
the Credit Agreement. Such Borrowing shall be evidenced by the Borrower's Note,
as applicable.
(i) Borrower's Name:
(ii) [The Borrowing is in Dollars in the amount of: ]
[The Borrowing is in [insert desired Agreed Currency] in the amount
of:
Existing Loan amount:
Repayment:
Continuation of Eurocurrency Loan (Interest Period ending: )
Increased amount:
Total Loan amount:
(iii) The Borrowing is to be funded on:
(iv) The Loans comprising such Borrowing shall be made as [Floating
Rate][Eurocurrency] Loans].
(v) In the case of a Eurocurrency Borrowing, the Interest Period shall
be .
as Borrower
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EXHIBIT F-1
NOTICE OF SWINGLINE LOAN
[Date]
Bank One, NA, as Swingline Lender
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: (for a Swingline Loan in Dollars)
(for a Swingline Loan in an Agreed Currency other than
Dollars)
The Borrower (as hereinafter named), hereby requests a Swingline Loan
pursuant to Section 2.01(b) of the Amended and Restated Credit Agreement, dated
as of March 20, 2000, as amended, supplemented or otherwise modified from time
to time (the "Credit Agreement"), by and among Masco Corporation, a Delaware
corporation, certain Subsidiary Borrowers which are now or may hereafter become
a party thereto from time to time, the Banks party thereto, Commerzbank
Aktiengesellschaft and Bank of America Securities LLC, as Syndication Agents,
and Bank One, NA, as Administrative Agent (the "Agent"). Capitalized terms used
but not defined herein shall have the respective meanings ascribed thereto in
the Credit Agreement. Such Borrowing shall be evidenced by the Borrower's
Swingline Note.
(i) Borrower's Name:
(ii) [The Swingline Loan is in Dollars in the amount of: ]
[The Swingline Loan is in [insert desired Agreed Currency] in the
amount of: .
(iii) The Swingline Loan is to be funded on: .
(iii) In the case of a Swingline Loan in an Agreed Currency other than
Dollars, the agreed Interest Period shall be and the greed upon
interest rate shall be .
as Borrower
11
