EXHIBIT 4.B2
THE DIAL CORP
SECOND AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT is dated as of November 8, 1995 (this "Amendment") and
is entered into by and among The Dial Corp, a Delaware
corporation (the "Borrower"), the Banks listed on the signature
pages hereof (the "Banks"), Bank of America National Trust and
Savings Association and Citibank, N.A., as agents (the "Agents")
for the Banks, Citibank, as the funding agent for the Banks (the
"Funding Agent"), and Bank of America National Trust and Savings
Association, as reporting agent for the Banks (the "Reporting
Agent"), and is made with reference to that certain Amended and
Restated Credit Agreement dated as of December 15, 1993, as
amended by that certain First Amendment to Amended and Restated
Credit Agreement dated as of September 23, 1994 (as so amended,
the "Agreement"). Capitalized terms used herein without
definitions have the respective meanings assigned to them in the
Agreement.
PRELIMINARY STATEMENT
The Borrower has requested, and the Banks and the Agents are
willing, to amend the Agreement on the terms and conditions set
forth in this Amendment.
AGREEMENT
IN CONSIDERATION of the mutual covenants and agreements
contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
Borrower, the Banks, the Funding Agent, the Reporting Agent and
the Agents hereby agree as follows:
SECTION 1. AMENDMENTS TO THE AGREEMENT.
1.1 Amendment to Section 1.01.
A. Section 1.01 of the Agreement is hereby amended by
deleting the definition of "Net Worth" therefrom in its entirety
and substituting the following therefor:
"'Net Worth' means minority interests, preferred
stock and common stock and other equity, as shown on
the consolidated balance sheet of the Borrower and its
Subsidiaries, provided, that, there shall be excluded
from the calculation of Net Worth any unrealized gains
or losses (net of taxes) on securities available for
sale."
1.2 Amendment to Section 5.02(a)(ii).
Section 5.02(a)(ii) of the Agreement is hereby amended
by deleting such section in its entirety and substituting the
following therefor.
"(i) Liens on accounts receivable resulting from
the sale of such accounts receivable by the Borrower or
a Subsidiary of the Borrower, so long as, at any time,
the aggregate outstanding amount of cash advanced to
the Borrower or such Subsidiary, as the case may be,
and attributable to the sale of such accounts
receivable does not exceed $300,000,000;"
1.3 Amendment to Section 5.02(f).
Section 5.02(f) of the Agreement is hereby amended by
deleting such section in its entirety and substituting the
following therefor:
"(f) Maximum Leverage. The Borrower will not
permit Leverage in any period referred to below to be
greater than the amounts set forth below for the
corresponding period:
September 30, 1995 through
December 30, 1996 0.62 to 1.00
December 31, 1996 through
December 30, 1997 0.60 to 1.00
December 31, 1997 through
December 30, 1998 0.575 to 1.00
December 31, 1998 and
thereafter 0.55 to 1.00."
1.4 Amendment to Section 5.02(g).
Section 5.02(g) of the Agreement is hereby amended by
deleting such section in its entirety and substituting the
following therefor:
"(g) Minimum Net Worth. The Borrower will not
permit at any time Net Worth to be less than the sum of
(1) $500 million and (ii) 25% of Net Income (if a
positive number) from October 1, 1995 to the then most
recent June 30 or December 31 and (iii) all Additions
to Capital from October 1, 1995 to the then most recent
June 30 or December 31."
1.5 Substitution of Exhibit.
Exhibit F to the Agreement is hereby amended by
deleting said Exhibit F in its entirety and substituting in place
thereof a new Exhibit F in the form of Annex I to this Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS.
Section 1 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions
precedent (the date of satisfaction or waiver of such conditions
being referred to herein as the "Second Amendment Effective
Date") and the receipt by the Agents of all of the following
(with sufficient originally executed copies, where appropriate,
for each Bank and the Agents), in form and substance satisfactory
to the Agents and their counsel and, unless otherwise noted,
dated the Second Amendment Effective Date: (i) resolutions of
the Borrower's board of directors approving and authorizing the
execution, delivery, and performance of this Amendment, certified
as of the Second Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and
effect without modification or amendment, (ii) executed copies of
this Amendment, (iii) signature and incumbency certificates of
the Borrower's officers executing this Amendment and (iv) such
other evidence as the Agents may reasonably request to establish
the consummation of the transactions contemplated hereby, the
taking of all corporate proceedings in connection with this
Amendment and the compliance with the conditions set forth
herein. On the Second Amendment Effective Date, this Amendment
shall be deemed effective as of September 30, 1995.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agents and
the Banks that the following statements are true, correct and
complete:
(a) Organization and Powers. The Borrower has all
requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Agreement, as amended
hereby (the Agreement, as so amended, the "Amended
Agreement").
(b) Authorization of Agreement. The execution and
delivery of this Amendment have been duly authorized by all
necessary corporate actions by the Borrower. This Amendment
has been duly executed and delivered by the Borrower.
(c) No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the
Borrower of the Amended Agreement do not and will not (i)
violate any provision of any law, rule or regulation
applicable to the Borrower, the charter or bylaws of the
Borrower or any order, judgment or decree of any court or
other agency of government binding on the Borrower, (ii)
conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any
indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Borrower is a
party or by which it is or its properties may be bound or
affected, (iii) result in or require the creation or
imposition of any Lien upon any of its properties or assets,
or (iv) require any approval of stockholders or any approval
or consent of any natural person, corporation, partnership,
association, trust, bank or other organization, whether or
not a legal entity, that is a party to any indenture or loan
or credit agreement or any other agreement, lease or
instrument to which the Borrower is a party or by which it
or any of its properties may be bound or affected.
(d) Governmental Consents. The execution and delivery
by the Borrower of this Amendment and the performance by the
Borrower of the Amended Agreement do not and will not
require any registration with, consent or approval of, or
notice to, or other action of, with or by, any Federal,
state or other governmental authority or regulatory body.
(e) Binding Obligation. This Amendment and the
Amended Agreement are the legally valid and binding
obligations of the Borrower, enforceable against it in
accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or limiting creditors' rights generally or by equitable
principles relating to enforceability.
(f) Incorporation of Representations and Warranties
From Agreement. The representations and warranties
contained in the Amended Agreement are and will be true,
correct and complete in all material respects on and as of
the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent
such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties were true, correct and complete in all material
respects on and as of such earlier date.
(g) Absence of Default. No event has occurred and is
continuing or will result from the consummation of the
transactions contemplated by this Amendment which constitute
an Event of Default or that would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both.
SECTION 4. MISCELLANEOUS.
(a) Reference to and Effect on the Agreement.
(i) On and after the Second Amendment Effective
Date, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of
like import, shall mean and be a reference to the
Agreement, as amended hereby.
(ii) Except as specifically amended hereby, the
terms, conditions and provisions of the Agreement shall
remain in full force and effect and are hereby ratified
and confirmed.
(iii) The execution, delivery and performance of
this Amendment shall not, except as expressly provided
herein, (x) constitute a waiver or modification of any
provisions of, or operate as a waiver of any right,
power or remedy of the Banks or the Agents under, the
Agreement or (y) prejudice any right or remedy that the
Banks or the Agents may now have or may have in the
future under or in connection with the Agreement or any
instrument or agreement referred to herein.
(b) Execution in Counterparts; Effectiveness. This
Amendment may be executed in any number of counterparts and
by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed
to be an original and all of which taken together shall
constitute but one and the same instrument. This Amendment
shall become effective upon the execution hereof by
Requisite Lenders, the Agents and the Borrower and receipt
by the Borrower and the Agents of written notification of
such execution and authorization of delivery thereof and
upon satisfaction of the conditions set forth in Section 2
hereof.
(c) Costs, Expenses and Taxes. The Borrower
acknowledges that all costs, fees, and expenses as described
in subsection 8.04 of the Agreement incurred by the Agents
and their counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for
the account of the Borrower.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(e) Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference
only and shall not constitute a part of this Amendment for
any other purpose or be given any substantive effect.
ANNEX I
EXHIBIT F
(FORM OF COMPLIANCE CERTIFICATE)
The undersigned certifies that: (i) this Certificate is as
of __________ and pertains to the period from _____________ to
_________, (ii) the undersigned has reviewed the terms of the
Amended and Restated Credit Agreement, dated as of December 15,
1993, among The Dial Corp, the Banks named therein, Bank of
America National Trust and Savings Association and Citibank,
N.A., as Agents, Citibank, N.A., as Funding Agent, and Bank of
America National Trust and Savings Association, as Reporting
Agent, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of September 23, 1994, and
that certain Second Amendment to Amended and Restated Credit
Agreement dated as of November 8, 1995 (as so amended and as it
may be amended from time to time, the "Credit Agreement") and has
made, or caused to be made under the undersigned's supervision, a
review in reasonable detail of the transactions and condition of
the Borrower and its Subsidiaries during the period set forth
above and (iii) such review has not disclosed the existence
during or at the end of such period, and the undersigned does not
have knowledge of the existences as of the date of this
Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default.1 Capitalized terms
used herein shall have the meanings set forth in the Credit
Agreement.
A. CASH FLOW COVERAGE.
For the Borrower and its Subsidiaries:
1. consolidated net income plus
provision for taxes (excluding
extraordinary, unusual, or
nonrecurring gains or losses) $
2. interest expense $
3. net operating lease expense (net of
operating sublease income) $
------------------
1If any event or condition that constitutes an Event of
Default or Potential Event of Default exists, the Certificate
should include the nature and period of existence of such event
or condition and what action the Borrower has taken, is taking
and proposes to take with respect thereto.
4. depreciation and amortization of $
intangibles
5. capital expenditures (excluding the
cost of acquisitions) $
6. Total of (1) plus (2) plus (3) plus
(4) minus (5) $
7. net operating lease expense (net of
operating sublease income) $
8. interest expense $
9. Total of (7) plus (8) $
10. Cash Flow Coverage [(6) divided by
(9)] ____:1.00
11. Minimum Cash Flow Coverage required
under Credit Agreement 1.25:1.00
B. LEVERAGE.
For the Borrower and its Subsidiaries:
1. indebtedness for borrowed money or
for the deferred purchase price of
property or services $
2. obligations as lessee under leases
which shall have been or should be,
in accordance with GAAP, recorded
as capital leases $
3. obligations under guarantees in
respect of indebtedness or
obligations of others of the kinds
referred to in clauses (1) and (2)
of this Section B $
4. Funded Debt [(1) plus (2) plus (3)] $
5. Cash $
6. Cash Equivalents $
7. total of (4) minus (5) minus (6) $
8. Net Worth (excluding any unrealized
gains or losses (net of taxes) on
securities available for sale) $
9. "Employee Equity Trust" contra
account $
10. "Guaranty of ESOP Debt" contra
account $
11. Shareholders Equity [(8) plus (9)
plus (10)] $
12. Total of (4) minus (5) minus (6)
plus (11) $
13. Leverage [(7) divided by (12)] ____:1.00
14. Maximum Leverage permitted under
Credit Agreement [0.62:1.00 for
September 30, 1995 - December 30,
1996; 9.60:1.00 for December 31,
1996 - December 30, 1997;
0.575:1.00 for December 31, 1997 -
December 30, 1998; 0.55:1.00 for
December 31, 1998 and thereafter] ____:1.00
C. NET WORTH
For the Borrower and its Subsidiaries:
1. Net Income (excluding losses) from
October 1, 1995 to most recent June
30 or December 31 $
2. aggregate net proceeds, including
cash and the fair market value of
property other than cash, received
by the Borrower from the issue
or sale of capital stock of the
Borrower from October 1, 1995
to the most recent June 30 or
December 31 $
3. aggregate of 25% of the after
tax gains realized from unusual,
extraordinary, and major
nonrecurring items from October 1,
1995 to the most recent June 30
or December 31 $
4. Additions to Capital [(2) plus (3)] $
5. 25% multiplied by (1) $
6. Minimum Net Work permitted under
Credit Agreement [$500 million plus
(4) plus (5)] $
7. Net Worth (excluding any unrealized
gains or losses (net of taxes) on
securities available for sale) $
By:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized as of the date first above written.
THE DIAL CORP
By: /s/ Xxxxxx X. Xxxxxx
Vice President-
Finance and
Treasurer
By: /s/ Xxxxxxx X. Xxxxxxx
Vice President-
Controller
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent and Reporting Agent
By: /s/ X.X. Xxxxxxxx
Managing Director
CITIBANK, N.A., as Agent and
Funding Agent
By: /s/ Xxxxxxxx Xxxxxxxxx
Vice President
Commitment: Bank:
$36,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ X.X. Xxxxxxxx
Managing Director
$41,000,000 CITIBANK, N.A.
By: /s/ Xxxxxxxx Xxxxxxxxx
Vice President
$24,000,000 BANK OF MONTREAL
By: /s/ Xxxxxx Xxxxxxx
Managing Director
$24,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
Vice President
$29,000,000 CHEMICAL BANK
By: /s/ Xxxx X. Xxxxxxx
Vice President
$29,000,000 CIBC INC.
By: /s/ Xxxx X. Xxxxxx
Associate Director
$24,000,000 BANK OF AMERICA ILLINOIS
By: /s/ X.X. Xxxxxxxx
Managing Director
$29,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxx X. Xxxxxxx
Senior Vice
President
$24,000,000 ROYAL BANK OF CANADA
By: /s/ Xxx X. Xxxxxxxxxx
Manager
$20,000,000 BANK ONE, ARIZONA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
Vice President
$24,000,000 FIRST INTERSTATE BANK OF
ARIZONA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
Vice President
$24,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ L. Xxxx Xxxxx
Senior Vice
President
$20,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ Xxxxxx Xxxxxxxxxx
Vice President
$20,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By: /s/ Xxxxxxx Xxxx
Joint General
Manager
By: /s/ T. Xxxxxx Xxxxxxx, XX
Vice President and
Manager
$20,000,000 MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
Vice President
$24,000,000 THE MITISUI TRUST & BANKING
CO., LTD. LOS ANGELES AGENCY
By: /s/ Xxx Xxxxxxxxx
General Manager
& Agent
$24,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
Vice President
$24,000,000 NBD BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
Second Vice
President
$20,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Vice President
$20,000,000 UNION BANK
By: /s/ Xxxx Xxxxx
Vice President
By: /s/ Xxxx Wenier
Credit Officer
