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EXHIBIT 4.c
CONFORMED COPY
$750,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
November 14, 1996
among
Masco Corporation
The Banks Party Hereto
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
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TABLE OF CONTENTS*
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . . . . . . . . . . . 14
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2
THE CREDITS
SECTION 2.01. Committed Borrowings . . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Notice of Committed Borrowings . . . . . . . . . . . . . . 15
SECTION 2.03. Money Market Borrowings . . . . . . . . . . . . . . . . . 16
SECTION 2.04. Notice to Banks; Funding of Loans . . . . . . . . . . . . 20
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.08. Facility Fees . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.09. Optional Termination or Reduction of Commitments . . . . . 26
SECTION 2.10. Mandatory Termination of Commitments . . . . . . . . . . . 26
SECTION 2.11. Optional Prepayments . . . . . . . . . . . . . . . . . . . 26
SECTION 2.12. General Provisions as to Payments . . . . . . . . . . . . 27
SECTION 2.13. Funding Losses . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.14. Computation of Interest and Fees . . . . . . . . . . . . . 28
SECTION 2.15. Withholding Tax Exemption . . . . . . . . . . . . . . . . 28
SECTION 2.16. Regulation D Compensation . . . . . . . . . . . . . . . . 29
SECTION 2.17. Application of Interest Rates and Fees . . . . . . . . . . 29
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. All Borrowings . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.03. Consequences of Effectiveness . . . . . . . . . . . . . . 31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
__________________________________
* The Table of Contents is not a part of this Agreement.
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PAGE
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SECTION 4.01. Corporate Existence and Power. . . . . . . . . . . . . . . 32
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.04. Financial Information . . . . . . . . . . . . . . . . . . 32
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . 33
SECTION 4.07. Environmental Matters . . . . . . . . . . . . . . . . . . 34
SECTION 4.08. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.09. Not an Investment Company . . . . . . . . . . . . . . . . 34
SECTION 4.10. Compliance with Laws . . . . . . . . . . . . . . . . . . . 34
ARTICLE 5
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.02. Minimum Consolidated Tangible Net Worth . . . . . . . . . 37
SECTION 5.03. Limitations on Debt . . . . . . . . . . . . . . . . . . . 38
SECTION 5.04. Negative Pledge . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.05. Consolidations, Mergers and Sale of Assets . . . . . . . . 40
SECTION 5.06. Compliance with Laws . . . . . . . . . . . . . . . . . . . 41
SECTION 5.07. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . . . . 45
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . . . . . . . . . 45
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Consultation with Experts . . . . . . . . . . . . . . . . 45
SECTION 7.05. Liability of Agent . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.06. Indemnification . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.09. Agent's Fees . . . . . . . . . . . . . . . . . . . . . . . 46
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ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . 47
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . 48
SECTION 8.04. Substitute Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.05. Substitution of Bank . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.03. Expenses; Documentary Taxes; Indemnification . . . . . . . . . . . . . 52
SECTION 9.04. Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.05. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.06. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.07. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.08. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.09. Severalty of Obligations . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.10. New York Law; Submission to Jurisdiction . . . . . . . . . . . . . . . 56
SECTION 9.11. Counterparts; Integration . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . 56
COMMITMENT SCHEDULE
PRICING SCHEDULE
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 14, 1996
among MASCO CORPORATION, the BANKS party hereto and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent.
WHEREAS, Masco Corporation, certain banks and Xxxxxx Guaranty Trust
Company of New York, as agent, are parties to a credit agreement dated as
of May 18, 1994, as heretofore amended (the "Existing Credit Agreement")
providing commitments in the aggregate amount of $750,000,000;
WHEREAS, the parties hereto desire to amend the Existing Credit
Agreement (i) to extend the Termination Date from May 15, 2000 to November
14, 2001, (ii) to reduce the rates of interest and fees payable thereunder,
(iii) to delete or modify certain covenants and (iv) to make certain other
changes; and
WHEREAS, the parties hereto desire to restate the Existing Credit
Agreement as so amended to read in full as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"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.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
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"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 Borrower) 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
Borrower 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 Xxxxxx Guaranty Trust Company of New York in its capacity as
agent for the Banks hereunder, and its successors in such capacity.
"Agreement," when used with reference to this Agreement, means this Amended
and Restated Credit Agreement dated as of November 14, 1996 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 Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 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.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base Rate
Loan in accordance with the applicable Notice of Committed Borrowing or pursuant
to Article 8.
"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
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Plan and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Borrower" means Masco Corporation, a Delaware corporation, and its
successors.
"Borrower's 1995 Form 10-K" means the Borrower's annual report on Form 10-K
for the year ended December 31, 1995, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended.
"Borrower's Equity Securities" means shares of any class of the Borrower's
capital stock or options, warrants or other rights to acquire such shares.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan in
accordance with the applicable Notice of Committed Borrowing.
"CD Margin" means, subject to Section 2.17, a rate per annum determined in
accordance with the Pricing Schedule.
"CD Reference Banks" means NBD Bank, Royal Bank of Canada and Xxxxxx
Guaranty Trust Company of New York and each other bank, if any, which is
appointed as a CD Reference Bank pursuant to Section 8.01(b) or 9.06(f).
"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 2.09 or
2.10 or changed as a result of an assignment pursuant to Section 9.06(c).
"Commitment Schedule" means the Commitment Schedule attached hereto.
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"Committed Loan" means a loan made by a Bank pursuant to Section 2.01.
"Consolidated Adjusted Net Worth" means at any date (i) Shareholders'
Equity at such date less (ii) the amount (if any) by which the aggregate amount
of all equity and other investments in Affiliates of the Borrower reflected in
such Shareholders' Equity exceeds $250,000,000.
"Consolidated Current Assets" means at any date the consolidated current
assets of the Borrower and its Consolidated Subsidiaries determined as of such
date.
"Consolidated Debt" means at any date the Debt of the Borrower 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 Borrower 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 Borrower or a Consolidated Subsidiary.
"Consolidated Subsidiary" means at any date any Subsidiary the accounts of
which would be consolidated with those of the Borrower in its consolidated
financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date the aggregate of all
assets (excluding treasury stock) which would be shown on a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of such date;
provided that there shall be deducted from the amount of such assets, to the
extent otherwise included therein, (i) any reserves on assets of the Borrower
and its Consolidated Subsidiaries where a reserve is proper in accordance with
generally accepted accounting principles, including, without limitation,
reserves for depreciation, amortization or obsolescence, loss on receivables or
inventory valuations, (ii) any unamortized goodwill, patents, trademarks, trade
names or other like intangible assets of the Borrower and its Consolidated
Subsidiaries, (iii) unamortized debt discount or expense of the Borrower and its
Consolidated Subsidiaries and (iv) any deferred charges or prepaid expenses of
the Borrower and its Consolidated Subsidiaries which are not Consolidated
Current Assets; and
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provided further that there shall also be deducted from such amount (v)
Consolidated Total Liabilities at 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 Borrower and its Consolidated Subsidiaries as
of such date, except the amount so appearing which constitutes Shareholders'
Equity.
"Continuing Director" means any member of the Borrower's board of directors
who either (i) is a member of such board as of November 14, 1996 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.
"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.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City 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 Borrower and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section 2.07(b).
"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.
"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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Group" means the Borrower, 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 Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
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"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" means, subject to Section 2.17, a rate per annum
determined in accordance with the Pricing Schedule.
"Euro-Dollar Reference Banks" means the principal London offices of The
First National Bank of Chicago, Royal Bank of Canada and Xxxxxx Guaranty Trust
Company of New York and each other bank, if any, which is appointed as a
Euro-Dollar Reference Bank pursuant to Section 8.01(b) or 9.06(f).
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of
"Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" has the meaning set forth in the first Whereas
Clause.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal
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Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New York on
such day on such transactions as determined by the Agent.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"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-1 by S&P and at least P-1 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 Borrower or a Subsidiary.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending one, two, three
or six months thereafter (or, subject to Section 2.07(d), nine or twelve months
thereafter), as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
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(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 90 days thereafter; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of
months thereafter as the Borrower may elect in accordance with Section
2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
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(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 30 days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or 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 Borrower 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 Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
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"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Debt" means Debt (other than the Notes) of the Borrower 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).
"Money Market Absolute Rate" has the meaning set forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Agent; provided that any Bank may from time to time by notice to the
Borrower and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03.
"Xxxxx'x" has the meaning set forth in the Pricing Schedule.
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"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.
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"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)
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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.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar Reference
Banks, as the context may require, and "Reference Bank" means any one of such
Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after application
of the proceeds thereof, results in no net increase in the aggregate outstanding
principal amount of the Committed 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 Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"S&P" has the meaning set forth in the Pricing Schedule.
"Shareholders' Equity" means at any date the shareholders' equity of the
Borrower.
"Significant Subsidiaries" means 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
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owned by the Borrower or by the Borrower and one or more Subsidiaries or by one
or more Subsidiaries.
"Termination Date" means November 14, 2001, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
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 Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Agent that the
Borrower 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 Borrower that the Required Banks wish to
amend Article 5 for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
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 the Borrower pursuant to
Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
the Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions of
Article 2 under which participation therein is determined (i.e., a "Committed
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Borrowing" is a Borrowing under Section 2.01 in which all Banks participate in
proportion to their Commitments, while a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank participants are determined on
the basis of their bids in accordance therewith).
ARTICLE 1
THE CREDITS
SECTION 2.01 Committed Borrowings. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time on and after the Effective Date;
provided that the aggregate principal amount of the Committed Loans made by such
Bank at any one time outstanding shall not exceed the amount of its Commitment
at that time. Each Borrowing under this Section shall be in an aggregate
principal amount of $25,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.02(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay, or to the extent permitted by
Section 2.11, 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.
SECTION 1.2. Notice of Committed Borrowings. The Borrower shall give the
Agent notice (a "Notice of Committed Borrowing") not later than 10:00 A.M. (New
York City time) on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be
CD Loans, Base Rate Loans or Euro-Dollar Loans, and
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(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.01, the Borrower may, as set forth in this
Section, request the Banks on and after the Effective Date to make
offers to make Money Market Loans to the Borrower. The Banks may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes
to request offers to make Money Market Loans under this Section, it shall
transmit to the Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received no
later than 10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000, 0.1.2.3 the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iii) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market
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Quote Request shall be given within five Euro-Dollar Business Days (or such
other number of days as the Borrower and the Agent may agree) of any other
Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission (or by telephone promptly confirmed by telex or
facsimile transmission) an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market Quotes. Each
Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telex or facsimile transmission (or by
telephone promptly confirmed by telex or facsimile transmission) at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:00 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective); provided that Money
Market Quotes submitted by the Agent (or any affiliate of the Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the Agent or
such affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than (x) one hour prior to the deadline for the
other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute Rate Auction. Subject
to Articles 3 and 6, any Money Market Quote so made shall be irrevocable except
with the written consent of the Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing (as specified in the
relevant Money Market Quote Request),
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(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $1,000,000 or a larger multiple
thereof, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above
or below the applicable London Interbank Offered Rate (the
"Money Market Margin") offered for each such Money Market
Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such
applicable London Interbank Offered Rate,
(D) in the case of an Absolute Rate Auction, the rate
of interest per annum (specified to the nearest 1/10,000th
of 1%) (the "Money Market Absolute Rate") offered for each such
Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Money Market Quotes;
or
(D) arrives after the time set forth in subsection
(d)(i).
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(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money
Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the
same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market
Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than
10:00 A.M. (New York City time) on (x) the third Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date
as the Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), the Borrower shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to
it pursuant to subsection (e). In the case of acceptance, such notice
(a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted.
The Borrower may accept any Money Market Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $25,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
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(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts
of Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 9.01. 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 Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed 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 the
Borrower to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made
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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 Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such share
available to the Agent, such Bank and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to Section 2.07 and
(ii) in the case of such Bank, the Federal Funds Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be evidenced by a
single Note payable to the order of such Bank for the account of its Applicable
Lending Office in an amount equal to the aggregate unpaid principal amount of
such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request that
its Loans of a particular type be evidenced by a separate Note in an amount
equal to the aggregate unpaid principal amount of such Loans. Each such Note
shall be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
type. Each reference in this Agreement to the "Note" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b), the
Agent shall mail such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and prior
to any transfer of its Note shall endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
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SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or overdue interest on any Base
Rate Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 1% plus the Base Rate for such day.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that, if any CD Loan or any
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such CD Loan or
portion thereof shall bear interest for each day during such Interest Period at
the Base Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, 90 days after the first day thereof. Any overdue principal of or overdue
interest on any CD Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 1% plus the higher of (i) the
sum of the CD Margin for such day plus the Adjusted CD Rate applicable to the
Interest Period for such Loan and (ii) the Base Rate for such day.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ------------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
---------------
* The amount in brackets being rounded upwards, if necessary, to the
next higher 1/100 of 1%
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The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
Section 327.4(a) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Subject to Section 2.16, each Euro-Dollar Loan shall bear interest
on the outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
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of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period; provided that, if such Interest Period has a duration of
nine or twelve months, the London Interbank Offered Rate applicable thereto
shall be determined as provided in subsection (d) of this Section.
(d) If requested to do so by the Borrower at least four Euro-Dollar
Business Days before the beginning of any Interest Period applicable to a
Euro-Dollar Borrowing, each Bank will advise the Borrower before 12:00 noon on
the third Euro-Dollar Business Day before the beginning of such Interest Period
as to (i) whether, if the Borrower selects a duration of nine or twelve months
for such Interest Period, such Bank expects that deposits in dollars with a term
corresponding to such Interest Period will be available to it in the London
interbank market two Euro-Dollar Business Days before the beginning of such
Interest Period in the amount required to fund its Euro-Dollar Loan to which
such Interest Period would apply and, if so, (ii) the interest rate which such
Bank would have been required to pay as of 10:00 A.M. (New York City time) on
such third Euro-Dollar Business Day before the beginning of such Interest Period
to obtain such deposits. If, but only if, all of the Banks confirm that they
expect such deposits to be available to them, the Borrower shall be entitled to
select a duration of nine or twelve months (as the case may be) for such
Interest Period pursuant to Section 2.02, in which event (i) each Bank shall
advise the Agent as to the interest rate per annum at which such deposits were
offered to it in the London interbank market at approximately 10:00 A.M. (New
York City time) two Euro-Dollar Business Days before the beginning of such
Interest Period and (ii) the London Interbank Offered Rate applicable to such
Interest Period shall be the highest of the rates so quoted; provided that, as
an alternative to the foregoing procedure, the London Interbank Offered Rate
applicable to any nine-month or twelve-month Interest Period may be established
by agreement among the Borrower and all the Banks.
(e) Any overdue principal of or interest on any Euro-Dollar 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 1% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus any additional interest rate applicable
pursuant to Section 2.16 plus the London Interbank Offered Rate applicable to
the Interest
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Period for such Loan and (ii) the sum of the Euro-Dollar Margin for such day
plus any additional interest rate applicable pursuant to Section 2.16 plus the
average (rounded upwards, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period of
time not longer than six months as the Agent may elect) deposits in dollars in
an amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market for the applicable period determined as provided
above (or, if the circumstances described in clause (a) or (b) of Section 8.01
shall exist, at a rate per annum equal to the sum of 1% plus the Base Rate for
such day).
(f) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 1% plus the Base Rate for such day.
(g) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks by telex or cable of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
(h) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
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SECTION 2.08. Facility Fees. The Borrower shall pay to the Agent, for the
account of the Banks ratably in proportion to their Commitments, a facility fee
calculated, subject to Section 2.17, 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 amount of the Commitments
(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 last Domestic Business 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).
SECTION 2.09. Optional Termination or Reduction of Commitments. (a) The
Borrower may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such
time, or (ii) ratably reduce from time to time by an aggregate amount of
$25,000,000 or any larger multiple 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 Borrower.
SECTION 2.10. 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 2.11. Optional Prepayments. (a) The Borrower may (i) upon at
least one Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)), (ii) upon at least two Domestic Business Days'
notice to the Agent, subject to Section 2.13, prepay any CD Borrowing or (iii)
upon at least three Euro-Dollar Business Days' notice to the Agent, subject to
Section 2.13, prepay any Euro-Dollar Borrowing, in whole at any time, or from
time to time in part in amounts aggregating $25,000,000 or any larger multiple
of
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$1,000,000, 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.
(b) Except as provided in clause (i) of Section 2.11(a), the Borrower may
not prepay all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and such notice shall not thereafter
be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the 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
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the Borrower shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Section 2.11, Article
6, Article 8 or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the last day of an applicable period fixed
pursuant to Section 2.07(e), or if the Borrower fails to borrow any Fixed Rate
Loan after notice has been given to any Bank in accordance with Section 2.04(a)
or if the Borrower fails to prepay any Fixed Rate Loan after notice has been
given to any Bank in accordance with Section 2.11(c), the 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 the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
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 2.15. Withholding Tax Exemption. At least five Domestic Business
Days prior to the first date on which interest or fees are payable hereunder for
the account of any Bank, each Bank that is not incorporated under the laws of
the United States of America or a state thereof agrees that it will deliver to
each of the Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either case that such
Bank is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent
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form so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent, in each
case certifying that such Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Borrower and the Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.16. Regulation D Compensation. For so long as any Bank maintains
reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Bank to United
States residents), and as a result the cost to such Bank (or its Applicable
Lending Office) of making or maintaining its Euro-Dollar Loans is increased,
then such Bank may require the Borrower to pay, contemporaneously with each
payment of interest on the Euro-Dollar Loans, additional interest on the related
Euro-Dollar Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i)(A) the applicable London Interbank Offered
Rate divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Bank wishing to require payment
of such additional interest (x) shall so notify the Borrower and the Agent, in
which case such additional interest on the Euro-Dollar Loans of such Bank shall
be payable to such Bank at the place indicated in such notice with respect to
each Interest Period commencing at least five Business Days after the giving of
such notice and (y) shall furnish to the Borrower at least five Euro-Dollar
Business Days prior to each date on which interest is payable on the Euro-Dollar
Loans an officer's certificate setting forth the amount to which such Bank is
then entitled under this Section (which shall be consistent with such Bank's
good faith estimate of the level at which the related reserves are maintained by
it).
SECTION 2.17. Application of Interest Rates and Fees. Interest and fees
shall accrue on and after the Effective Date at the rates described in Sections
2.07 and 2.08. 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.
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ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") that 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 for the account of each Bank of
a duly executed Note, dated on or before the Effective Date, complying
with the provisions of Section 2.05;
(c) receipt by the Agent of an opinion of Xxxx X.
Xxxxxxx, Senior Vice President-General Counsel of the Borrower,
substantially in the form of Exhibit E hereto and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agent, substantially in the form of
Exhibit F hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably
request;
(e) receipt by the Agent of a certificate of a duly
authorized officer of the Borrower, 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 Borrower contained in this Agreement are true in all
material respects; and
(f) receipt by the Agent of all documents it may
reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
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provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
December 14, 1996. The Agent shall promptly notify the Borrower and the Banks
of the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
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 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing,
(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
Borrower contained in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth in Sections
4.04(b), 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 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 Borrower 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
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period prior to the Effective Date will continue to be governed by the
provisions thereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower 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 Borrower of this Agreement and
the Notes are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official (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 Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1995 and the related consolidated statements of
income and cash flows for the Fiscal Year then ended, reported on by Coopers &
Xxxxxxx L.L.P. and set forth in the Borrower's 1995 Form 10-K, a copy of which
has been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
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the Borrower 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 Borrower
and its Consolidated Subsidiaries as of June 30, 1996 and the related unaudited
condensed statements of consolidated income and consolidated cash flows for the
six months then ended, set forth in the Borrower's quarterly report for the
fiscal quarter ended June 30, 1996 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 Borrower and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such six-month
period (subject to normal year-end adjustments).
(c) There has been no material adverse change since June 30, 1996 in the
business or financial position of the Borrower 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 Borrower threatened against or affecting,
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which, in the reasonable opinion of the
Borrower, is likely to have a material adverse effect on the business or
financial position of the Borrower 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)
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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 Borrower and its Consolidated Subsidiaries.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts appropriate reviews of the effect of
Environmental Laws on the business, operations and properties of the Borrower
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,
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 Borrower 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
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the Fiscal
Year ended December 31, 1993. The Borrower 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 Borrower
or any Subsidiary, except such taxes, if any, as are being contested in good
faith and as to which, in the opinion of the Borrower, adequate reserves have
been provided. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes or other governmental charges are, in
the opinion of the Borrower, adequate.
SECTION 4.09. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. Compliance with Laws. The Borrower 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 Borrower
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is aware that the Borrower or the relevant Subsidiary has failed to comply
therewith or (iii) the Borrower 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 Borrower and its
Consolidated Subsidiaries, taken as a whole.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 3.1. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Borrower 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 Coopers & Xxxxxxx L.L.P. 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 45 days
after the end of each of the first three quarters of each Fiscal Year,
a condensed consolidated balance sheet of the Borrower 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
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 Borrower's
independent public accountants) by the chief financial officer or the
chief accounting officer of the Borrower;
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(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 Borrower (i) setting forth
in reasonable detail the calculations required to establish
whether the Borrower 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 Borrower is
taking or proposes to take with respect thereto;
(d) within 15 days after any officer of the Borrower
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 Borrower setting forth the
details of such Default and the action which the Borrower is
taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the
shareholders of the Borrower 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 Borrower 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
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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 Borrower setting forth details as to such occurrence
and action, if any, which the Borrower 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
Borrower have obtained knowledge and have not previously reported
under this clause (g) exceeds $25,000,000;
(h) immediately after any officer of the Borrower obtains
knowledge of a change or a proposed change in the rating of the
Borrower'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 Borrower setting forth the details thereof;
and
(i) from time to time such additional information
regarding the financial position or business of the Borrower as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Minimum Consolidated Tangible Net Worth. At no time
will Consolidated Tangible Net Worth be less than Minimum Consolidated Tangible
Net Worth. "Minimum Consolidated Tangible Net Worth" means $800,000,000;
provided that such amount shall be adjusted at the end of each Fiscal Quarter
ending after June 30, 1996, 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 Tangible Net Worth to the extent of
offsetting prior increases (if any) in Minimum Consolidated Tangible
Net Worth made pursuant to this clause (i) during the same Fiscal Year
and second to
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reduce (but not below zero) any future increase in Minimum
Consolidated Tangible 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 Tangible Net Worth during such Fiscal Quarter attributable to
sales or issuances of the Borrower's Equity Securities; provided that an amount
up to 50% of all decreases in Consolidated Tangible Net Worth during such
Fiscal Quarter attributable to purchases or other retirements of the Borrower's
Equity Securities shall be applied first to offset any increase in Minimum
Consolidated Tangible Net Worth that would otherwise be made pursuant to this
clause (ii) at the end of such Fiscal Quarter, second to reduce Minimum
Consolidated Tangible Net Worth to the extent of offsetting prior increases (if
any) in Minimum Consolidated Tangible Net Worth made pursuant to this clause
(ii) and third to reduce (but not below zero) any future increase in Minimum
Consolidated Tangible Net Worth that would otherwise be made pursuant to this
clause (ii).
SECTION 5.03. Limitations on Debt. (a) The Borrower 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 57%.
(b) The Borrower 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 Borrower or one or more other Consolidated Subsidiaries) would
exceed 30% of Shareholders' Equity.
(c) Subsections (a) and (b) above shall not prevent (i) the Borrower
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 Borrower 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
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by the Borrower or a Consolidated Subsidiary. For purposes of this subsection
(c), Debt is deemed to be 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 Borrower 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 Borrower or one or more other Consolidated Subsidiaries)
would be greater than 30% but less than 60% of Shareholders' Equity, 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
Borrower) by the Borrower or a Subsidiary of capital stock of any Consolidated
Subsidiary which holds Debt of the Borrower 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 Borrower) of Debt of
the Borrower or any Consolidated Subsidiary by any Consolidated Subsidiary or
the Borrower shall be deemed the creation of such Debt.
SECTION 5.04. Negative Pledge. Neither the Borrower 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, l996 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;
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(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 such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower 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 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 Borrower 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 Borrower 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
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not at any time exceed the sum of (A) 20% of Consolidated Current
Assets plus (B) 5% of Consolidated Tangible Net Worth.
SECTION 5.05 Consolidations, Mergers and Sale of Assets. (a) The
Borrower 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 Borrower shall be the continuing or
surviving corporation or (ii) the successor or acquiring corporation (if other
than the Borrower) 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 Borrower 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 Borrower 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 Borrower would be in default under
any of the terms or provisions of this Agreement.
SECTION 5.06. Compliance with Laws. The Borrower 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 Borrower is aware that the Borrower or
the relevant Subsidiary has failed to comply therewith or (iii) the Borrower
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 Borrower 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) the 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 Borrower shall fail to observe or perform any
covenant contained in Sections 5.02 to 5.05, inclusive;
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by clause (a) or (b) above) for 30 days after written notice
thereof has been given to the Borrower by the Agent at the request of
any Bank;
(d) any representation, warranty, certification or
statement made by the Borrower in this Agreement or any amendment
hereof or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made or deemed to have been
made; provided that, if any representation and warranty deemed to have
been made by the Borrower 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 Borrower
was not aware when such representation and warranty was deemed to have
been made and which was cured before or promptly after the Borrower
became aware thereof, then such representation and warranty shall be
deemed not to have been incorrect in any material respect;
(e) the Borrower and 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;
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(f) the Borrower 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 Borrower or Significant Subsidiaries shall, in
each case, 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 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 Borrower or Significant Subsidiaries in any
United States Federal court or other court of competent jurisdiction
seeking in each case 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 Borrower or Significant
Subsidiaries 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
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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 Borrower or any
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 45 days; or
(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
Borrower; or Continuing Directors shall cease to constitute a majority
of the board of directors of the Borrower;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate
outstanding principal amount of the Loans, by notice to the Borrower declare
the Notes (together with accrued interest thereon) to be, and the Notes shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified
in clause (g) or
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(h) above with respect to the Borrower, without any notice to the Borrower or
any other act by the Agent or the Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower 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. Xxxxxx Guaranty Trust Company of New
York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Xxxxxx Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of the Borrower as if
it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
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
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action taken or not taken by such Person in connection herewith with the consent
or at the request of the Required Banks or (ii) to the Banks or the 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 Borrower; (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
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from the 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 Borrower. 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
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and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
SECTION 7.09. Agent's Fees. The Borrower shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Borrower and the Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
(a) If on or prior to the first day of any Interest Period for any Fixed Rate
Borrowing (other than a Money Market Absolute Rate Borrowing):
(i) the Agent is advised by each of the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
such Reference Bank in the relevant market for such Interest Period, or
(ii) in the case of a Committed Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate, as the case may be,
as determined by the Agent will not adequately and fairly reflect the cost
to such Banks of funding their CD Loans or Euro-Dollar Loans, as the case
may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended. Unless the Borrower notifies the Agent at least
two Domestic Business Days before the date of any such Fixed Rate Borrowing
for which a Notice of Borrowing has previously been given that it elects
not to borrow on such date, (A) if such Fixed Rate Borrowing is a
Committed Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (B) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising
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such Borrowing shall bear interest for each day from and including the first day
to but excluding the last day of the Interest Period applicable thereto at the
Base Rate for such day.
(b) If deposits in dollars (in the applicable amounts) are not being
offered to any of the Reference Banks in the relevant market for any Interest
Period, by reason of circumstances affecting such Reference Bank, and not
affecting the London interbank market or the United States market for
certificates of deposit generally (as the case may be), the Agent shall, in
consultation with the Borrower and with the consent of the Required Banks,
appoint another bank to act as a Reference Bank hereunder.
SECTION 8.02. Illegality. If, after November 14, 1996, 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 Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to honor its binding
legal obligation hereunder to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan, together with accrued interest thereon. Concurrently
with prepaying each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate
Loan (or, if the Borrower so elects by at least one Domestic Business Day's
notice to the Agent and such Bank, a CD Loan) in an equal principal amount from
such Bank (on which interest and principal shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and such Bank shall make
such a Base Rate Loan or CD Loan, as the case may be.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) November 14, 1996, in the case of any Committed Loan or any obligation to
make Committed Loans or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change 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:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Note or
its obligation to make Fixed Rate 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 Fixed Rate Loans or any other amounts due
under this Agreement in respect of its Fixed Rate Loans or its obligation
to make Fixed Rate Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Applicable Lending Office imposed by
the 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
(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 (A) with respect to any CD
Loan any such requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the London interbank market
any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
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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 Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction; provided that, if such Bank fails to demand
such compensation (or notify the Borrower that it will demand such compensation)
promptly upon becoming aware of the facts entitling it to do so, such Bank shall
not be entitled to such compensation for the period before the date on which it
actually demands (or notifies the Borrower that it will demand) such
compensation. If any Bank demands compensation under this subsection (a), the
Borrower may at any time, upon at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, prepay in full each then outstanding
affected Fixed Rate Loan of such Bank, together with accrued interest thereon to
the date of prepayment. Concurrently with prepaying each such Fixed Rate Loan
of such Bank, the Borrower shall borrow a Base Rate Loan (or, if the Borrower
shall so elect in its notice of prepayment, a Fixed Rate Committed 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
Fixed Rate 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 November 14, 1996 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 Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided that, if
such Bank fails to demand such compensation (or notify the Borrower that it will
demand such compensation) promptly upon becoming aware of the facts entitling it
to do so, such Bank shall not be entitled to such compensation for the period
before the date on which it actually demands (or notifies the Borrower that it
will demand) such compensation.
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(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after November 14 ,1996, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Substitute Loans. If (i) the obligation of any Bank to make
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03(a) and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section 8.04 shall apply to such
Bank, then, unless and until such Bank notifies the Borrower 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 CD Loans
or Euro-Dollar Loans, as the case may be, shall be made instead as Base Rate
Loans (on which interest and principal shall be payable contemporaneously with
the related Fixed Rate Loans of the other Banks) or, if the Borrower shall so
elect in the Notice of Borrowing, CD Loans or Euro-Dollar Loans (whichever type
is not affected by such circumstances) for an Interest Period coincident with
the related Fixed Rate Borrowing.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03, the Borrower 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
Note 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 the
Borrower
51
56
or the Agent, at its address or its facsimile or telex number set forth on the
signature pages hereof, (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
Borrower. 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
Borrower shall pay (i) all reasonable out-of-pocket expenses of the Agent,
including reasonable fees and disbursements of special counsel for the Agent, in
connection with the preparation of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default hereunder and (ii) if an Event
of Default occurs, all reasonable out-of-pocket expenses incurred by the Agent
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 Borrower 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 Borrower 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) the 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 the
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,
52
57
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 Note 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 Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes 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 the Borrower other than its
indebtedness under the Notes. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided that
no such amendment or waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all 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, or (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement.
53
58
SECTION 9.06. Successors and Assigns. 7.6.1 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 the Borrower may not
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
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower 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
Borrower 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
Borrower agrees 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 $10,000,000), 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 G
hereto executed by such Assignee and such transferor Bank, with (and subject to)
the subscribed consent of the Borrower 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, no such consent shall be required; and
provided further that such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Money Market Loans. Upon execution
and delivery of such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have
54
59
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 Borrower
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 $2,500. 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
Borrower and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.15.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note 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 Borrower's prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such greater payment did not
exist.
(f) If any Reference Bank assigns or otherwise transfers its Note to an
unaffiliated institution, the Agent shall, in consultation with the Borrower and
with the consent of the Required Banks, appoint another bank to act as a
Reference Bank hereunder.
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 Borrower 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
55
60
becomes publicly available other than by action of any Bank, or was theretofore
known to such Bank independent of any disclosure thereto by the Borrower) 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
Borrower; provided that (i) such Bank may disclose such documentation and
other information to any other bank to which such Bank sells or proposes to sell
a participation in its Loans hereunder, if such other bank, prior to such
disclosure, agrees for the benefit of the Borrower 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. New York Law; Submission to Jurisdiction. This Agreement
and each Note shall be construed in accordance with and governed by the laws of
the State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The 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, except that the Existing
Credit Agreement shall continue to govern the rights and obligations of the
parties thereto with respect to the period prior to the Effective Date.
56
61
SECTION 9.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, 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.
57
62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
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
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------
Title: Vice President
NBD BANK
By /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------
Title: First Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
63
COMERICA BANK
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
NATIONSBANK, N.A.
By /s/ Xxxxxxx Xxxxxx, Xx.
--------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx Title:
--------------------------------
Assistant Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxxx Xxxx
--------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
64
COMMERZBANK AKTIENGESELLSCHAFT
CHICAGO BRANCH
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Assistant Vice President
By /s/ J. Xxxxxxx Shortly
-------------------------------------
Title: Senior Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Manager, Corporate Banking
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ A. S. Xxxxxxxxxx
-------------------------------------
Title: Senior Team Leader-Loan
Operations
THE BANK OF TOKYO-MITSUBISHI LTD.,
CHICAGO BRANCH
65
By /s/ Tokutaro Sekine
-----------------------------------
Title: General Manager
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By /s/ Seiichiro Ino
-----------------------------------
Title: Vice President
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Title: Assistant Treasurer
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Assistant Vice President
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By /s/ Xxxxxxx X. Xx Xxxxxx
-----------------------------------
Title: First Vice President
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Title: First Vice President
66
THE SANWA BANK LTD.
CHICAGO BRANCH
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD.
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Title: Joint General Manager
67
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Title: Vice President
Attention: Xxxxxxx X. Xxxxxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telex Number: 177615 MGT UT
Telecopy Number: (000) 000-0000
68
COMMITMENT SCHEDULE
Name of Bank Commitment
------------ ----------
Xxxxxx Guaranty Trust Company of New York $ 78,000,000
NBD Bank $ 70,000,000
Bank of America Illinois $ 60,000,000
Comerica Bank $ 60,000,000
NationsBank, N.A. $ 60,000,000
PNC Bank, National Association $ 60,000,000
The Bank of New York $ 34,000,000
The Chase Manhattan Bank $ 34,000,000
Commerzbank Aktiengesellschaft Chicago
Branch $ 34,000,000
Royal Bank of Canada $ 34,000,000
Wachovia Bank of Georgia, N.A. $ 34,000,000
The Bank of Nova Scotia $ 24,000,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch $ 24,000,000
The Dai-Ichi Kangyo Bank, Ltd., Chicago
Branch $ 24,000,000
Dresdner Bank AG New York and Grand Cayman
Branches $ 24,000,000
Istituto Bancario San Paolo Di Torino,
S.p.A $ 24,000,000
KeyBank National Association $ 24,000,000
The Sanwa Bank Ltd. Chicago Branch $ 24,000,000
The Sumitomo Bank, Ltd. $ 24,000,000
Total ------------
Commitments $750,000,000
69
PRICING SCHEDULE
Each of "Facility Fee Rate", "Euro-Dollar Margin" and "CD Margin" means for any
day the rate per annum set forth below in the applicable row under the column
corresponding to the Pricing Level that applies on such day:
Pricing Level Level I Level II Level III Level IV Level V Level VI
------- -------- --------- -------- ------- --------
Facility Fee Rate .075% .085% .1% .125% .15% .2%
Euro-Dollar Margin .125% .165% .20% .275% .325% .55%
CD Margin .25% .29% .325% .4% .45% .675%
For purposes of this Schedule, the following terms have the following meanings:
"Level I Pricing" applies for any day if on such day any of the Borrower's
outstanding senior unsecured long-term debt is rated A or higher by S&P and A2
or higher by Moody's.
"Level II Pricing" applies for any day if on such day (i) any of the
Borrower's outstanding senior unsecured long-term debt is rated A- or higher by
S&P or A3 or higher by Moody's, and (ii) Level I Pricing does not apply.
"Level III Pricing" applies for any day if on such day (i) any of the
Borrower's outstanding senior unsecured long-term debt is rated BBB+ or higher
by S&P or Baa1 or higher by Moody's, and (ii) neither Level I Pricing nor Level
II Pricing applies.
"Level IV Pricing" applies for any day if on such day (i) any of the
Borrower's outstanding senior unsecured long-term debt is rated BBB or higher by
S&P and Baa2 or higher by Moody's, and (ii) none of Level I Pricing, Level II
Pricing, or Level III Pricing applies.
"Level V Pricing" applies for any day if on such day (i) any of the
Borrower's outstanding senior unsecured long-term debt is rated BBB- or higher
by S&P and Baa3 or higher by Moody's, and (ii) none of Level I Pricing, Level II
Pricing, Level III Pricing or Level IV Pricing applies.
"Level VI Pricing" applies for any day if on such day no other Pricing
Level applies.
"Moody's" means Xxxxx'x Investors Services, Inc.
"Pricing Level" refers to the determination of which of Level I, Level II,
Level III, Level IV, Level V or Level VI Pricing applies on any day.
"S&P" means Standard & Poor's Ratings Services.
70
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 Borrower without third party credit support. Ratings assigned to any
obligation of the Borrower which is secured or which has the benefit of third
party credit support shall be disregarded. For purposes of this Pricing
Schedule, the credit ratings in effect on any day are those in effect at the
close of business on such day.
71
EXHIBIT A
NOTE
New York, New York
For value received, MASCO CORPORATION, a Delaware corporation (the
"Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
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 November 14, 1996 among the Borrower, the banks
party thereto and Xxxxxx Guaranty Trust Company of New York, as Agent (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
MASCO CORPORATION
By
-----------------------
Title:
72
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
-------------------------------------------------------------------------------
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-------------------------------------------------------------------------------
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2
73
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "Agent")
From: Masco Corporation (the "Borrower")
Re: Amended and Restated Credit Agreement (the "Credit Agreement") dated
as of November 14, 1996 among the Borrower, the Banks party thereto
and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount** Interest Period***
------------------ ------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
MASCO CORPORATION
By:____________________________
Title:
__________________________________
* Amount must be $25,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 30 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
74
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Masco Corporation (the "Borrower")
Pursuant to Section 2.03 of the Amended and Restated Credit Agreement
dated as of November 14, 1996 among the Borrower, the Banks party thereto and
the undersigned, as Agent, we are pleased on behalf of the Borrower to invite
you to submit Money Market Quotes to the Borrower for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:00
A.M.] (New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:__________________________________
Authorized Officer
75
EXHIBIT D
Form of Money Market Quote
-------------------------------
To: Xxxxxx Guaranty Trust Company
of New York, as Agent
Re: Money Market Quote to
Masco Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote
on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: ______________________
3. Date of Borrowing: ____________________ *
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount ** Period *** [Margin****] [Absolute Rate *****]
--------- ----------- ------------ ---------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.] **
----------------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids must be
made for $1,000,000 or a larger multiple thereof.
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined
for the applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
76
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Amended and Restated
Credit Agreement dated as of November 14, 1996 among the Borrower, the Banks
party thereto and yourselves, as Agent, irrevocably obligates us to make the
Money Market Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
---------------- --------------------
Authorized Officer
2
77
EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
------------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I am Senior Vice President-General Counsel of Masco Corporation (the
"Borrower") and am familiar with the Amended and Restated Credit Agreement dated
as of November 14, 1996 (the "Credit Agreement") among the Borrower, the Banks
party thereto and Xxxxxx Guaranty Trust Company of New York, 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 Borrower 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 Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action of the Borrower, require
no action in respect of the Borrower by, or filing in respect of the Borrower
with, any governmental body, agency or official (except filings under the
Securities Exchange Act of 1934) and do not contravene,
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or constitute a default under any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument known to me
to be binding upon the Borrower or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries under any such
agreement or instrument.
3. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Notes constitute valid and binding obligations of the
Borrower, 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.
4. There is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the Borrower 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 Borrower 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 F
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENT
----------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Amended and Restated Credit
Agreement dated as of November 14, 1996 (the "Credit Agreement") among Masco
Corporation, a Delaware corporation (the "Borrower"), the banks party thereto
(the "Banks") and Xxxxxx Guaranty Trust Company of New York, as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers and have been
duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Notes constitute valid and binding obligations of the
Borrower.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such Bank may charge or
collect.
Very truly yours,
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), MASCO CORPORATION (the "Borrower") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Amended and Restated Credit Agreement dated as of November 14, 1996 among
the Borrower, the Assignor and the other Banks party thereto, as Banks, and the
Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
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
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of the principal amount of the Committed Loans made by the Assignor outstanding
at the date hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee, the Borrower and the Agent and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the Assignee shall, as of
the date hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a Commitment in an amount
equal to the Assigned Amount, and (ii) the Commitment of the Assignor shall, as
of the date hereof, be reduced by a like amount and the Assignor released from
its obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $_________*. 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 Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Section
9.06(c) of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower 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
---------------
* 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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be responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[MASCO CORPORATION
By
Title:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
Title:]
3
