EXHIBIT 4.e
EXECUTION COPY
US $1,250,000,000
AMENDED AND RESTATED
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of November 8, 2002
AMONG
MASCO CORPORATION and
MASCO EUROPE S.A.R.L.,
AS BORROWERS
THE BANKS PARTY HERETO
AND
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, AND
CITIBANK, N.A.,
AS SYNDICATION AGENTS
BNP PARIBAS,
AS DOCUMENTATION AGENT
AND
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS ADMINISTRATIVE AGENT
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BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Manager
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SIDLEY XXXXXX XXXXX & XXXX
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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TABLE OF CONTENTS
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ARTICLE I: DEFINITIONS......................................................................................... 1
SECTION 1.01. Definitions....................................................................... 1
SECTION 1.02. Accounting Terms and Determinations............................................... 15
SECTION 1.03. Types of Borrowings............................................................... 16
SECTION 1.04. Amendment and Restatement......................................................... 16
ARTICLE II: THE CREDITS........................................................................................ 16
SECTION 2.01. Borrowings; Swingline Loans....................................................... 16
SECTION 2.02. Notice of Borrowing............................................................... 19
SECTION 2.03. Notice to Banks; Funding of Loans................................................. 19
SECTION 2.04. Noteless Agreement; Evidence of Indebtedness...................................... 21
SECTION 2.05. Maturity of Loans................................................................. 22
SECTION 2.06. Interest Rates.................................................................... 22
SECTION 2.07. Facility Fees and Utilization Fees................................................ 23
SECTION 2.08. Optional Termination or Reduction of Commitments.................................. 24
SECTION 2.09. Mandatory Termination of Commitments.............................................. 24
SECTION 2.10. Prepayments....................................................................... 24
SECTION 2.11. General Provisions as to Payments................................................. 25
SECTION 2.12. Funding Losses.................................................................... 27
SECTION 2.13. Computation of Interest and Fees.................................................. 27
SECTION 2.14. Withholding Tax Exemption......................................................... 27
SECTION 2.15. Judgment Currency................................................................. 28
SECTION 2.16. Lending Installations............................................................. 28
SECTION 2.17. The Letter of Credit Facility..................................................... 29
ARTICLE III: CONDITIONS........................................................................................ 36
SECTION 3.01. Effectiveness of the Original Credit Agreement.................................... 36
SECTION 3.02. All Borrowings.................................................................... 36
SECTION 3.03. Effectiveness of this Agreement................................................... 37
ARTICLE IV: REPRESENTATIONS AND WARRANTIES..................................................................... 38
SECTION 4.01. Corporate Existence and Power..................................................... 38
SECTION 4.02. Corporate and Governmental Authorization; No Contravention; Filing; No Immunity... 38
SECTION 4.03. Binding Effect.................................................................... 39
SECTION 4.04. Financial Information............................................................. 39
SECTION 4.05. Litigation........................................................................ 40
SECTION 4.06. Compliance with ERISA............................................................. 40
SECTION 4.07. Environmental Matters............................................................. 40
SECTION 4.08. Taxes............................................................................. 40
SECTION 4.09. Not an Investment Company......................................................... 40
SECTION 4.10. Compliance with Laws.............................................................. 41
SECTION 4.11. Foreign Employee Benefit Matters.................................................. 41
ARTICLE V: COVENANTS........................................................................................... 41
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SECTION 5.01. Information....................................................................... 41
SECTION 5.02. Financial Covenants............................................................... 44
SECTION 5.03. Limitations on Debt............................................................... 45
SECTION 5.04. Negative Pledge................................................................... 46
SECTION 5.05. Consolidations, Mergers and Sale of Assets........................................ 47
SECTION 5.06. Compliance with Laws.............................................................. 47
SECTION 5.07. Use of Proceeds................................................................... 48
SECTION 5.08. Insurance......................................................................... 48
SECTION 5.09. Inspection........................................................................ 48
ARTICLE VI: DEFAULTS........................................................................................... 48
SECTION 6.01. Events of Default................................................................. 48
SECTION 6.02. Notice of Default................................................................. 51
ARTICLE VII: THE AGENT......................................................................................... 51
SECTION 7.01. Appointment and Authorization..................................................... 51
SECTION 7.02. Agent and Affiliates.............................................................. 51
SECTION 7.03. Action by Agent................................................................... 51
SECTION 7.04. Consultation with Experts......................................................... 51
SECTION 7.05. Liability of Agent................................................................ 51
SECTION 7.06. Indemnification................................................................... 52
SECTION 7.07. Credit Decision................................................................... 52
SECTION 7.08. Successor Agent................................................................... 52
SECTION 7.09. Agent's and Arranger's Fee........................................................ 52
SECTION 7.10. Agent, Arranger, Documentation Agents, Syndication Agents......................... 52
ARTICLE VIII: CHANGE IN CIRCUMSTANCES.......................................................................... 53
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.......................... 53
SECTION 8.02. Illegality........................................................................ 53
SECTION 8.03. Increased Cost and Reduced Return................................................. 54
SECTION 8.04. Market Disruption................................................................. 56
SECTION 8.05. Substitute Loans.................................................................. 57
SECTION 8.06. Substitution of Bank.............................................................. 57
ARTICLE IX: MISCELLANEOUS...................................................................................... 58
SECTION 9.01. Notices........................................................................... 58
SECTION 9.02. No Waivers........................................................................ 58
SECTION 9.03. Expenses; Documentary Taxes; Indemnification...................................... 58
SECTION 9.04. Sharing of Set-Offs............................................................... 59
SECTION 9.05. Amendments and Waivers............................................................ 59
SECTION 9.06. Successors and Assigns............................................................ 60
SECTION 9.07. Collateral........................................................................ 62
SECTION 9.08. Confidentiality................................................................... 63
SECTION 9.09. Severalty of Obligations.......................................................... 63
SECTION 9.10. Illinois Law; Submission to Jurisdiction.......................................... 63
SECTION 9.11. Counterparts; Integration......................................................... 63
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SECTION 9.12. WAIVER OF JURY TRIAL; SERVICE OF PROCESS.......................................... 63
ARTICLE X: GUARANTY............................................................................................ 64
SECTION 10.01. Guarantee of Obligations.......................................................... 64
SECTION 10.02. Nature of Guaranty................................................................ 65
SECTION 10.03. Waivers and Other Agreements...................................................... 65
SECTION 10.04. Obligations Absolute.............................................................. 65
SECTION 10.05. No Investigation by Banks or Agent................................................ 66
SECTION 10.06. Indemnity......................................................................... 66
SECTION 10.07. Subordination, Subrogation, Reinstatement, Etc.................................... 66
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Swingline Note
Exhibit C-1 - Form of Opinion of Counsel for the Company
Exhibit C-2 - Form of Opinion of Counsel for Masco Europe
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Notice of Borrowing
Exhibit E-1 - Form of Notice of Swingline Borrowing
Exhibit F - Form of Designation Agreement
Exhibit G - Form of L/C Request
SCHEDULES
Commitment Schedule
Pricing Schedule
Schedule 1 - Administrative Agent's Eurocurrency Payment Office
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AMENDED AND RESTATED
5-YEAR REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
dated as of November 8, 2002 is entered into among MASCO CORPORATION and MASCO
EUROPE S.A.R.L., as borrowers, the BANKS party hereto as lenders, Commerzbank
AG, New York and Grand Cayman Branches, and CITIBANK, N.A., as Syndication
Agents, BNP PARIBAS, as Documentation Agent, and BANK ONE, NA (Main Office
Chicago), as administrative agent to amend and restate the Original Credit
Agreement. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"ACQUIRED DEBT" means, with respect to any Person which
previously became or hereafter becomes a Subsidiary, Debt of such Person which
was outstanding before such Person became a Subsidiary and which was not created
in contemplation of such Person becoming a Subsidiary; provided that such Debt
shall no longer constitute "Acquired Debt" at any time that is more than six
months after such Person becomes a Subsidiary.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Company) duly completed by such Bank.
"AFFECTED BANK" has the meaning set forth in Section 8.06.
"AFFILIATE" means at any date a Person (other than a
Consolidated Subsidiary) whose earnings or losses (or the appropriate
proportionate share thereof) would be included in determining the Consolidated
Net Income of the Company and its Consolidated Subsidiaries for a period ending
on such date under the equity method of accounting for investments in common
stock (and certain other investments).
"AGENT" means Bank One, NA in its capacity as administrative
agent for the Banks hereunder, and its successors in such capacity.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments
of all the Banks, as reduced from time to time pursuant to the terms hereof.
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such
currencies remain Eligible Agreed Currencies, euro, British Pounds Sterling,
Canadian Dollars and Danish Krone, and (iii) any other Eligible Agreed Currency
which the applicable Borrower requests the Swingline Lender to include as an
Agreed Currency hereunder and which is acceptable to the Swingline Lender. For
the purposes of this definition, each of the specific currencies referred to in
clause (ii), above, shall mean and be deemed to refer to the lawful currency of
the jurisdiction
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referred to in connection with such currency, e.g., "Danish Krone" means the
lawful currency of Denmark.
"AGREEMENT," when used with reference to this Agreement, means
this Amended and Restated 5-Year Revolving Credit Agreement dated as of November
8, 2002, as amended, modified, supplemented or restated from time to time after
the date hereof.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank,
(i) in the case of its Floating Rate Loans, its Domestic Lending Office and (ii)
in the case of its Eurocurrency Loans, its Eurocurrency Lending Office.
"APPLICABLE MARGIN" means with respect to any Eurocurrency
Loan, Floating Rate Loan, the facility fees payable under Section 2.07 or the
Letter of Credit Fee payable under Section 2.17(H), as the case may be at any
time, the percentage which is applicable at such time as set forth in the
Pricing Schedule.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect
to any amount of Dollars shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars on or as of such date, rounded up to the
nearest amount of such currency as determined by the Agent from time to time.
"ARRANGER" means Banc One Capital Markets, Inc.
"ASSIGNEE" has the meaning set forth in Section 9.06(C).
"BANK" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(C), and their
respective successors. For purposes of Sections 2.14, 2.15, 2.16, 4.02(B),
5.01(K), 6.02, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01, 9.02, 9.03, 9.07, 9.08 and
9.09, and Article X, the defined term "Bank" shall also be deemed to include, to
the extent applicable, the Swingline Lender and the Issuing Bank.
"BANK ONE" means Bank One, NA (Main Office Chicago), a
national banking association.
"BEHR" means Behr Process Corporation, a California
corporation and a Wholly-Owned Subsidiary of the Company.
"BENEFIT ARRANGEMENT" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BORROWERS" means the Company and Masco Europe, and "Borrower"
means each of them, as the context may require.
"BORROWING" has the meaning set forth in Section 1.03.
"CHANGE IN LAW" has the meaning set forth in Section 8.03(A).
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"CLOSING DATE" means November 8, 2002.
"COMMITMENT" means (i) with respect to any Bank listed on the
Commitment Schedule, the amount set forth opposite the name of such Bank on the
Commitment Schedule, or (ii) with respect to any Assignee, the amount of the
transferor Bank's Commitment assigned to such Assignee pursuant to Section
9.06(C), in each case as such amount may be reduced from time to time pursuant
to Section 2.08 or 2.09 or changed as a result of an assignment pursuant to
Section 9.06(C).
"COMMITMENT PERCENTAGE" means at any date of determination,
with respect to any Bank, that percentage which the Commitment of such Bank then
constitutes of the Aggregate Commitment or, if the Commitments have expired or
been terminated, that percentage which the Commitment of such Bank constituted
of the Aggregate Commitment immediately prior to such expiration or
cancellation.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached
hereto.
"COMPANY" means Masco Corporation, a Delaware corporation, and
its successors.
"COMPANY'S 2001 FORM 10-K" means the Company's annual report
on Form 10-K for the year ended December 31, 2001, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended.
"COMPANY'S EQUITY SECURITIES" means shares of any class of the
Company's capital stock or options, warrants or other equity rights to acquire
such shares.
"COMPUTATION DATE" is defined in Section 2.10(C).
"CONSOLIDATED ADJUSTED NET WORTH" means at any date (i)
Consolidated Net Worth at such date less (ii) the amount (if any) by which the
aggregate amount of all equity and other investments in Affiliates of the
Company reflected in such Consolidated Net Worth exceeds $250,000,000.
"CONSOLIDATED CURRENT ASSETS" means at any date the
consolidated current assets of the Company and its Consolidated Subsidiaries
determined as of such date.
"CONSOLIDATED DEBT" means at any date the Debt of the Company
and its Consolidated Subsidiaries (other than the guarantee obligations of the
Company pursuant to that certain Facility and Guaranty Agreement, dated as of
July 10, 2000, by and among the Company, Bank One, NA, as agent, and the other
financial institutions from time to time parties thereto), determined on a
consolidated basis as of such date.
"CONSOLIDATED NET INCOME" means, for any period, the
consolidated net income of the Company and its Consolidated Subsidiaries for
such period (considered as a single accounting period), but excluding the net
income or deficit of any Person (other than the equity in earnings or losses of
an Affiliate previously included in such consolidated net income determined
under the equity method of accounting for investments) prior to the effective
date on
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which it becomes a Consolidated Subsidiary or is merged into or consolidated
with the Company or a Consolidated Subsidiary.
"CONSOLIDATED NET LOSS" has the meaning set forth in Section
5.02(A).
"CONSOLIDATED NET WORTH" means at any date the consolidated
shareholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary the
accounts of which would be consolidated with those of the Company in its
consolidated financial statements as of such date.
"CONSOLIDATED TOTAL LIABILITIES" means at any date the
aggregate of all liabilities or other items which would appear on the liability
side of a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of such date, except the amount so appearing which constitutes
Consolidated Net Worth.
"CONTINUING DIRECTOR" means any member of the Company's board
of directors who either (i) was a member of such board as of the Closing Date or
(ii) has been thereafter or hereafter is elected to such board, or nominated for
election by stockholders, by a vote of at least two-thirds of the directors who
are Continuing Directors at the time of such vote; provided that an individual
who is so elected or nominated in connection with a merger, consolidation,
acquisition or similar transaction shall not be a Continuing Director unless
such individual was a Continuing Director prior thereto.
"CONVERSION/CONTINUATION NOTICE" is defined in Section
2.03(E).
"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.
"DESIGNATION AGREEMENT" has the meaning set forth in Section
9.06(F)(i).
"DESIGNATED LENDER" means, with respect to each Designating
Lender, each
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Eligible Designee designated by such Designating Lender pursuant to Section
9.06(F).
"DESIGNATING LENDER" means, with respect to each Designated
Lender, the Bank that designated such Designated Lender pursuant to Section
9.06(F).
"DISCLOSED LITIGATION" is defined in the definition of
"Material Adverse Change".
"DOCUMENTATION AGENT" shall mean the Documentation Agent named
in the first paragraph of this Agreement.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the
amount of such currency if such currency is Dollars or (ii) the equivalent in
such currency of such amount of Dollars if such currency is any currency other
than Dollars, calculated on the basis of the arithmetical mean of the buy and
sell spot rates of exchange of the Agent for such currency on the London market
at 11:00 a.m., London time, on or as of the most recent Computation Date
provided for in Section 2.10.
"DOLLARS" and "$" shall mean the lawful currency of the United
States of America.
"DOMESTIC BUSINESS DAY" means any day on which banks generally
are open in New York, Detroit and Chicago for the conduct of substantially all
of their commercial lending activities and interbank wire transfers can be made
on the Fedwire system.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Company and the Agent.
"DOMESTIC SUBSIDIARY" means a Subsidiary which is incorporated
under the laws of the United States of America or any state thereof.
"DRAW DATE" has the meaning set forth in Section 2.17(F).
"ELIGIBLE DESIGNEE" means a special purpose corporation,
partnership, limited partnership or limited liability company that is
administered or sponsored by a Bank or an Affiliate of a Bank and (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged primarily in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and (iii) issues (or the parent of
which issues) commercial paper rated at least A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by Xxxxx'x.
"ELIGIBLE AGREED CURRENCY" means any currency other than
Dollars (i) that is readily available, (ii) that is freely traded, (iii) in
which deposits are customarily offered to banks in the London interbank market,
(iv) which is convertible into Dollars in the international interbank market and
(v) as to which an Equivalent Amount may be readily calculated. If, after the
designation by the Swingline Lender of any currency as an Agreed Currency, (x)
currency control or other exchange regulations are imposed in the country in
which such currency is issued with the result that different types of such
currency are introduced, (y) such currency is, in
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the determination of the Swingline Lender, no longer readily available or freely
traded or (z) in the determination of the Swingline Lender, an Equivalent Amount
of such currency is not readily calculable, the Swingline Lender shall promptly
notify the Agent and the applicable Borrower, and such currency shall no longer
be an Agreed Currency until such time as the Swingline Lender agrees to
reinstate such currency as an Agreed Currency and promptly, but in any event
within five Eurocurrency Business Days of receipt of such notice from the
Swingline Lender, the applicable Borrower shall repay all Swingline Loans in
such affected currency or convert such Swingline Loans into Swingline Loans in
Dollars or another Agreed Currency, subject to the other terms set forth in
Article II.
"ELIGIBLE SYNDICATED CURRENCY" means any currency other than
Dollars (i) that is readily available, (ii) that is freely traded, (iii) in
which deposits are customarily offered to banks in the London interbank market,
(iv) which is convertible into Dollars in the international interbank market and
(v) as to which an Equivalent Amount may be readily calculated. If, with respect
to any Syndicated Currency, (x) currency control or other exchange regulations
are imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, (y) such currency is, in the
determination of the Agent, no longer readily available or freely traded or (z)
in the determination of the Agent, an Equivalent Amount of such currency is not
readily calculable, the Agent shall promptly notify the Banks and the applicable
Borrower, and such currency shall no longer be a Syndicated Currency until such
time as all of the Banks agree to reinstate such currency as a Syndicated
Currency and promptly, but in any event within five Eurocurrency Business Days
of receipt of such notice from the Agent, the applicable Borrower shall repay
all Loans in such affected currency or convert such Loans into Loans in Dollars,
subject to the other terms set forth in Article II.
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Union.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"EQUIVALENT AMOUNT" of any currency with respect to any amount
of Dollars at any date shall mean the equivalent in such currency of such amount
of Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
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"ERISA GROUP" means the Company, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.
"EURO" and/or "EUR" means the lawful and single currency of
the European Monetary Union.
"EUROCURRENCY BORROWING" is defined in Section 1.03.
"EUROCURRENCY BUSINESS DAY" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"EUROCURRENCY LENDING OFFICE" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Eurocurrency Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Eurocurrency Lending Office by
notice to the Company and the Agent.
"EUROCURRENCY LOAN" means a Loan to be made by a Bank which is
to bear interest at the Eurocurrency Rate in accordance with the applicable
Notice of Borrowing.
"EUROCURRENCY MARGIN" means a rate per annum determined in
accordance with the Pricing Schedule.
"EUROCURRENCY PAYMENT OFFICE" of the Agent shall mean, for
each of the Syndicated Currencies, the office, branch, affiliate or
correspondent bank of the Agent specified as the "Eurocurrency Payment Office"
for such currency in Schedule 1 hereto or such other office, branch, affiliate
or correspondent bank of the Agent as it may from time to time specify to the
Company, the relevant Borrowers and each Bank as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Loan
for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Eurocurrency Reserve Percentage, plus (ii) the Eurocurrency
Margin.
"EUROCURRENCY REFERENCE RATE" means, with respect to a
Eurocurrency Loan for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in the applicable
Syndicated Currency appearing on Reuters Screen FRBD or Reuters Screen FRBE, as
applicable, as of 11:00 a.m. (London time) two Eurocurrency Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD or Reuters Screen
FRBE is not available to the Agent for any reason, the applicable Eurocurrency
Reference Rate for the relevant Interest Period shall instead be the applicable
British Bankers' Association Interest Settlement Rate for deposits in the
applicable Syndicated Currency as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Eurocurrency
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period,
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and (ii) if no such British Bankers' Association Interest Settlement Rate is
available, the applicable Eurocurrency Reference Rate for the relevant Interest
Period shall instead be the rate determined by the Agent to be the rate at which
Bank One offers to place deposits in the applicable Syndicated Currency with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two Eurocurrency Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurocurrency
Loan and having a maturity equal to such Interest Period.
"EUROCURRENCY RESERVE PERCENTAGE" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurocurrency Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Domestic Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Effective Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if no such rate is so published on such next succeeding Domestic Business
Day, the Federal Funds Effective Rate for such day shall be the average rate
quoted to Bank One from three Federal funds brokers of recognized standing
selected it on such day on such transactions as determined by the Agent in its
sole discretion.
"FISCAL QUARTER" means a fiscal quarter of the Company.
"FISCAL YEAR" means a fiscal year of the Company.
"FLOATING RATE" means, for any day, a rate per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the Federal Funds
Effective Rate plus 1/2% per annum for such day.
"FLOATING RATE LOAN" means a Loan to be made by a Bank or the
Swingline Lender which is to bear interest at the Floating Rate in accordance
with the applicable Notice of Borrowing or otherwise pursuant to this Agreement.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees of the Company, and of its Subsidiaries or any
members of its ERISA Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
8 SIDLEY XXXXXX XXXXX & XXXX
"FOREIGN PENSION PLAN" means any employee pension plan as
described in Section 3(2) of ERISA for which any member of the ERISA Group is a
sponsor or administrator and which (i) is maintained or contributed to for the
benefit of employees of the Company, and of its Subsidiaries or any member of
its ERISA Group, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of
ERISA, and (iii) under applicable local law or terms of such Foreign Pension
Plan, is required to be funded through a trust.
"GUARANTEED OBLIGATIONS" has the meaning set forth in Section
10.01(A).
"GOVERNMENTAL ACTS" has the meaning set forth in Section
2.17(J) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, local or other political subdivision or agency thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"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 Moody's or
(iii) time deposits with, including certificates of deposit issued by, any Bank
which was a party to this Agreement on the Closing Date or any office located in
the United States of America of any bank or trust company which is organized
under the laws of the United States of America or any State thereof and has
capital, surplus and undivided profits aggregating at least $500,000,000;
provided in each case that such investment matures within six months from the
date of acquisition thereof by the Company or a Subsidiary.
"INTERCOMPANY INDEBTEDNESS" has the meaning set forth in
Section 10.07.
"INTEREST PERIOD" means:
(A) with respect to each Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending one, two,
three or six months thereafter (or such longer or shorter period
requested by the Borrower and acceptable to all of the Banks), as the
Borrower may elect in the applicable Notice of Borrowing; provided
that:
(i) any Interest Period which would otherwise
end on a day which is not a Eurocurrency Business Day shall be
extended to the next succeeding Eurocurrency Business Day
unless such Eurocurrency Business Day falls in another
calendar month, in which case such Interest Period shall end
on the next preceding Eurocurrency Business Day,
(ii) any Interest Period which begins on the last
Eurocurrency Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Eurocurrency Business Day of a calendar month, and
(iii) no Borrower may select an Interest Period
that ends after the Termination Date,
9 SIDLEY XXXXXX XXXXX & XXXX
(B) with respect to each Floating Rate Borrowing, the
period commencing on the date of such Borrowing and ending 90 days
thereafter or other mutually agreeable period acceptable between Agent
and the Borrower; provided that:
(i) any Interest Period which would otherwise
end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(ii) no Borrower may select an Interest Period
that ends after the Termination Date.
(C) with respect to each Swingline Loan bearing a fixed
rate of interest, the period commencing on the date such Swingline Loan
is made by the Swingline Lender and ending on the date agreed to
between the Swingline Lender and the applicable Borrower in accordance
with Section 2.01(B).
"ISSUING BANK" means (i) Bank One or any of its Affiliates in
its capacity as an Issuing Bank hereunder with respect to each Letter of Credit
issued by Bank One or any such Affiliate pursuant to Section 2.17 hereof and
(ii) any Lender or any of its Affiliates (other than Bank One or any of its
Affiliates) consented to (x) prior to a Default, by the Agent and the Borrower
and (y) after the occurrence and during the continuance of a Default, by the
Agent (in each case, which consent shall not be unreasonably withheld or
delayed) in such Lender's capacity as an Issuing Bank hereunder with respect to
any and all Letters of Credit issued by such Lender in its sole discretion upon
the Borrower's request pursuant to Section 2.17 hereof. All references contained
in this Agreement and the other instruments, documents or agreements from time
to time executed or delivered in connection herewith to "the Issuing Bank" shall
be deemed to apply equally to each of the institutions referred to in clauses
(i) and (ii) of this definition in their respective capacities as Issuing Banks
of any and all Letters of Credit issued by each such institution, together with
their respective successors and assigns.
"L/C ACCOUNT PARTY" has the meaning set forth in Section
2.17(A) hereof.
"L/C DRAFT" means a draft drawn on the Issuing Bank pursuant
to a Letter of Credit.
"L/C INTEREST" has the meaning set forth in Section 2.17(E)
hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal
to the sum of (i) the aggregate of the amount then available for drawing under
each of the Letters of Credit, (ii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iii) the aggregate face amount of
all Letters of Credit requested by the Borrower but not yet issued (unless the
request for an unissued Letter of Credit has been denied); provided, however,
that for the purpose of calculating the facility fees and utilization fees set
forth in Section 2.07 of this Agreement and in Section 2.07 of the 364-Day
Credit Agreement, "L/C Obligations" shall exclude the amounts referred to in
this clause (iii).
"L/C REQUEST" has the meaning set forth in Section 2.17(C).
10 SIDLEY XXXXXX XXXXX & XXXX
"LENDING INSTALLATION" means, with respect to a Bank or the
Agent, the office, branch, subsidiary or affiliate of such Bank or the Agent
with respect to each Syndicated Currency listed on the administrative
information sheets provided to the Agent in connection herewith or otherwise
selected by such Bank or the Agent pursuant to Section 2.16.
"LETTER OF CREDIT" means any irrevocable standby letter of
credit to be issued by the Issuing Bank pursuant to Section 2.17(A) hereof.
"LETTER OF CREDIT FEE" has the meaning set forth in Section
2.17(H).
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or similar encumbrance of any kind in respect
of such asset; provided that a subordination agreement shall not be deemed to
create a Lien. For the purposes of this Agreement, the Company or any
Consolidated Subsidiary shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other similar title retention
agreement relating to such asset.
"LITIGATION CHARGE" is defined in the definition of "Material
Adverse Change".
"LITIGATION DEVELOPMENT" is defined in the definition of
"Material Adverse Change".
"LITIGATION LIABILITY" is defined in the definition of
"Material Adverse Change".
"LOAN" means a loan made by a Bank or the Swingline Lender
pursuant to Section 2.01.
"MASCO EUROPE" means Masco Europe, S.a.r.l., a wholly-owned
Subsidiary of the Company organized under the laws of the Grand Duchy of
Luxembourg, and its successors.
"MATERIAL ADVERSE CHANGE" means a material adverse change in
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries, considered as a
whole, from December 31, 2001, as reflected in the financial statements referred
to in Section 4.04(A); it being understood that the events and developments
relating to litigation initiated in the State of Washington or any other
jurisdiction against the Company and/or Behr in connection with Behr's wood
coating products, as more particularly described in the statements on Form 8-K
filed by the Company with the Securities and Exchange Commission on each of
September 18, 2002, September 19, 2002, October 4, 2002 and October 29, 2002
(the "Disclosed Litigation"), shall not constitute a Material Adverse Change
unless and until:
(a) one of the following events shall have occurred (in
each case, a "Litigation Development"):
(x) adjudication or settlement of final liability in any
case or group of cases in which Behr, the Company or
any of their Subsidiaries is ordered to pay or is
bound by one or more agreements to pay an amount (the
aggregate
11 SIDLEY XXXXXX XXXXX & XXXX
amount of such payment, or the maximum amount if the
amount is provided in a range, except to the extent
covered by insurance for which the applicable insurer
has not disclaimed liability, the "Litigation
Liability"); or
(y) the Company has elected to (or the Securities and
Exchange Commission, the Financial Standards
Accounting Board or any other governmental,
quasi-governmental or regulatory authority requires
the Company to) take a charge against earnings in
connection with the Disclosed Litigation (a
"Litigation Charge"); and
(b) within five (5) Domestic Business Days after any
Litigation Liability arises, or on or before the date on which any
Litigation Charge is taken, as the case may be, the Company has failed
to demonstrate to the satisfaction of the Administrative Agent in a Pro
Forma Compliance Certificate from its chief financial officer or
treasurer, after giving effect to such Litigation Liability or
Litigation Charge and the incurrence of any indebtedness or the
issuance of any equity in connection therewith, compliance with the
financial covenants set forth in Sections 5.02 through 5.04 on a pro
forma basis as if the Litigation Liability or the obligation to take
the Litigation Charge (and any related indebtedness or equity issuance)
arose on the last day of the immediately preceding fiscal quarter for
which unaudited or audited financial statements are then available;
provided, however, that once the Company has delivered a Pro Forma
Compliance Certificate in connection with any Litigation Development
(including the Pro Forma Compliance Certificate delivered on the
Closing Date), the Company may continue to rely on such Pro Forma
Compliance Certificate unless and until a subsequent Litigation
Liability or Litigation Charge arises that increases the aggregate
amount of Litigation Liabilities or Litigation Charges from those
reflected in such Pro Forma Compliance Certificate.
"MATERIAL DEBT" means Debt (other than the Loans and L/C
Obligations) of the Company and/or one or more of its Subsidiaries, arising (i)
in one or more related or unrelated transactions, in an aggregate outstanding
principal amount exceeding $50,000,000 or (ii) under the 364-Day Credit
Agreement.
"MATERIAL FOREIGN PENSION PLAN" has the meaning set forth in
Section 6.01(I).
"MATERIAL PLAN" has the meaning set forth in Section 6.01(I).
"MOODY'S" has the meaning set forth in the Pricing Schedule.
"MULTIEMPLOYER PLAN" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or, pursuant to an applicable
collective bargaining agreement, accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NATIONAL CURRENCY UNIT" means the unit of currency (other
than a euro) of each
12 SIDLEY XXXXXX XXXXX & XXXX
member state of the European Union that participates in the third stage of EMU.
"NOTES" means any promissory notes of the Borrowers,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrowers to repay the Loans, or the Swingline Note, as the case may be, and
"Note" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" is defined in Section 2.02.
"NOTICE OF SWINGLINE BORROWING" is defined in Section 2.02.
"ORIGINAL CLOSING DATE" means November 6, 2000.
"ORIGINAL CREDIT AGREEMENT" means that certain 5-Year
Revolving Credit Agreement entered into as of the Original Closing Date among
the Borrowers, the financial institutions parties thereto and Bank One, NA, as
administrative agent, as amended or otherwise modified as of the date hereof.
"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.
"PRIME RATE" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its Parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"PRIOR PLAN" means at any time (i) any Plan which at such time
is no longer maintained or contributed to by any member of the ERISA Group or
(ii) any Multiemployer Plan to which no member of the ERISA Group is at such
time any longer making contributions or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions.
13 SIDLEY XXXXXX XXXXX & XXXX
"PRO FORMA COMPLIANCE CERTIFICATE" is defined in Section 5.01
(C).
"REFUNDING BORROWING" means a Borrowing or a Letter of Credit
issuance which, after application of the proceeds thereof, results in no net
increase in the aggregate outstanding principal amount of the Loans made by any
Bank or the aggregate face amount of the Letters of Credit issued by the Issuing
Bank.
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT OBLIGATION" has the meaning set forth in
Section 2.17(F).
"REPLACEMENT BANK" has the meaning set forth in Section 8.06.
"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 or otherwise required to participate in more than 50% of the
aggregate unpaid principal amount of the Loans and the issued and outstanding
Letters of Credit.
"S&P" has the meaning set forth in the Pricing Schedule.
"SIGNIFICANT SUBSIDIARIES" means any of Masco Europe or any
one or more Subsidiaries which, if considered in the aggregate as a single
Subsidiary, would be a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the Securities Exchange Act of 1934. For purposes of this
Agreement, a type of event shall not be deemed to have occurred with respect to
Significant Subsidiaries unless such type of event has occurred with respect to
each of the Subsidiaries required to be included to constitute "Significant
Subsidiaries" as defined in the preceding sentence.
"SUBSIDIARY" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time owned by the Company or by the Company and one or more
Subsidiaries or by one or more Subsidiaries.
"SWINGLINE AMOUNT" is defined in Section 2.01(B).
"SWINGLINE LENDER" means Bank One.
"SWINGLINE LOAN" means any loan made by the Swingline Lender
pursuant to Section 2.01(B) and, if requested by the Swingline Lender, evidenced
by a Swingline Note.
"SWINGLINE NOTE" means any promissory note of the Borrowers
evidencing the Swingline Loans, in substantially the same form as Exhibit B
hereto, as amended, modified, supplemented or restated at the time such
Swingline Loan is made to the applicable Borrower.
"SYNDICATED CURRENCIES" means (i) Dollars and (ii) so long as
such currency shall remain an Eligible Syndicated Currency, euro.
14 SIDLEY XXXXXX XXXXX & XXXX
"SYNDICATION AGENTS" shall mean the Syndication Agents named
in the first paragraph of this Agreement.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day
Revolving Credit Agreement, dated as of November 8, 2002 among the Borrowers,
Bank One, NA, as Administrative Agent and the financial institutions from time
to time parties thereto as lenders, as the same may be amended, restated,
supplemented, renewed, extended, refinanced or otherwise modified from time to
time.
"364-DAY REVOLVING TERMINATION DATE" is defined in Section
2.07.
"TERMINATION DATE" means November 4, 2005 or, if such day is
not a Eurocurrency Business Day, the next preceding Eurocurrency Business Day.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), as amended from time to time.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary
all of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent (and the Agent shall promptly notify each Bank of the contents of any such
notice) that the Company wishes to amend any covenant in Article V to eliminate
the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend
15 SIDLEY XXXXXX XXXXX & XXXX
Article V for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made to a Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement as "types" of
Borrowings either by reference to the pricing of the Loans comprising such
Borrowing (e.g., a "Eurocurrency Borrowing" is a Borrowing comprised of
Eurocurrency Loans) or by reference to the provisions of Article II under which
participation therein is determined (e.g., a "Borrowing" is a Borrowing under
Section 2.01(A) in which all Banks participate in proportion to their
Commitments).
SECTION 1.04. Amendment and Restatement. It is the intent of
the parties hereto that this Agreement (i) shall re-evidence, in part, the
Borrowers' obligations and indebtedness under the Original Credit Agreement,
(ii) is entered into in substitution for, and not in payment of, the obligations
and indebtedness of the Borrowers under the Original Credit Agreement and (iii)
is in no way intended to constitute a novation of any of the Borrowers'
obligations and indebtedness which were evidenced by the Original Credit
Agreement or any of the other instruments, documents or agreements delivered or
executed in connection therewith. Notwithstanding any suggestion herein to the
contrary, all Loans made and obligations incurred under the Original Credit
Agreement which are outstanding on the Closing Date shall continue as Loans and
obligations under (and shall be governed by the terms of) this Agreement. All
references herein to "hereunder," "hereof," or words of like import, and all
references in any other instrument, document or agreement delivered or executed
in connection with the Original Credit Agreement, to the "Credit Agreement" or
words of like import shall mean and be a reference to the Original Credit
Agreement as amended and restated hereby (and any section references in such
instruments, documents or agreements to the Original Credit Agreement shall
refer to the applicable equivalent provision set forth herein although the
section number thereof may have changed).
ARTICLE II: THE CREDITS
SECTION 2.01. Borrowings; Swingline Loans.
(A) Borrowings. Each Bank severally agrees, on the terms
and conditions set forth in this Agreement, to continue to make loans
to the Company or Masco Europe pursuant to this Section 2.01(A) from
time to time on and after the Closing Date to but excluding the
Termination Date in any Syndicated Currency; provided that (i) the
aggregate principal Dollar Amount of the Loans made by such Bank at any
one time outstanding shall not exceed the amount of its available
Commitment at that time, (ii) each Bank's Commitment shall be deemed
utilized by an amount equal to such Bank's Commitment Percentage of
each Swingline Loan plus such Bank's Commitment Percentage of the L/C
Obligations for purposes of determining the amount of Loans required to
be made by such Bank hereunder, (iii) Floating Rate Loans shall only be
16 SIDLEY XXXXXX XXXXX & XXXX
made in Dollars, and (iv) the aggregate principal Dollar Amount of
Eurocurrency Loans denominated in euro shall not exceed $750,000,000.
Each Borrowing under this Section 2.01(A) shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $1,000,000
(or the Approximate Equivalent Amounts if denominated in euro, and
except that any such Borrowing may be in the aggregate amount available
in accordance with Section 3.02(B)) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrowers may borrow under this Section, repay,
or to the extent permitted by Section 2.10, prepay Loans and reborrow
at any time under this Section (it being understood and agreed that
Masco Europe shall be liable only to repay Loans made to Masco Europe).
Amounts repaid pursuant to Section 8.02 shall not be reborrowed except
as provided therein.
(B) Swingline Loans.
(i) Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to continue to make
Swingline Loans to the Company or Masco Europe from time to
time on any Domestic Business Day (if such Swingline Loan is
denominated in Dollars) or on any Eurocurrency Business Day
(if such Swingline Loan is denominated in an Agreed Currency
other than Dollars) during the period on and after the Closing
Date to but excluding the Termination Date in any Agreed
Currency in the aggregate principal Dollar Amount not to
exceed the lesser of (A) $150,000,000 (the "Swingline Amount")
and (B) the unused portion of the Aggregate Commitment as of
such Domestic Business Day or Eurocurrency Business Day, as
the case may be; provided, that the Aggregate Commitment shall
be deemed utilized by the aggregate principal Dollar Amount of
the Loans outstanding at that time plus the aggregate amount
of L/C Obligations at that time. Each Swingline Loan shall be
in a principal amount of $1,000,000 or any integral multiple
thereof, or if denominated in an Agreed Currency other than
Dollars, the Approximate Equivalent Amount or such other
minimum amounts and multiples as the Swingline Lender shall
determine. Each Swingline Loan shall bear interest as set
forth in Section 2.06. Each Swingline Loan shall be repaid
with interest on the thirtieth (30th) day after such Swingline
Loan is made (or such shorter period as the Swingline Lender
and the applicable Borrower shall have agreed); provided, that
upon receipt of written notice from the applicable Borrower no
fewer than four Eurocurrency Business Days prior to such
Swingline Loan's due date, the Swingline Lender may in its
sole and absolute discretion agree to continue such Swingline
Loan as a Swingline Loan for an additional thirty (30) day
period; provided, however, that no Swingline Loan may be
outstanding as a Swingline Loan for a period greater than 180
consecutive days; provided, further, that Masco Europe shall
be liable only to repay Swingline Loans made to Masco Europe.
(ii) The Swingline Lender may at any time in its
sole and absolute discretion require that any Swingline Loan
be refunded by a Borrowing in Dollars to the applicable
Borrower from the Banks. If any Swingline Loan is not repaid
by the applicable Borrower on the date when due, each Bank
will make available a Borrowing the proceeds of which will be
used to repay the Swingline Loan. In
17 SIDLEY XXXXXX XXXXX & XXXX
each case, upon written notice thereof by the Swingline Lender
to the Agent, the Banks, the relevant Borrower and the
Company, the Company shall be deemed to have requested a
Borrowing in an amount equal to the Dollar Amount of such
Swingline Loan and such Borrowing shall be made to refund such
Swingline Loan (and the minimum amounts in Section 2.01(A) are
not applicable to such Borrowing). Any Swingline Loan
outstanding in an Agreed Currency other than Dollars shall,
upon the giving of such notice by the Swingline Lender,
immediately and automatically be converted to and
redenominated in Dollars equal to the Equivalent Amount of
each such Swingline Loan determined as of the date of such
conversion. Each Bank shall be absolutely and unconditionally
obligated to fund its Commitment Percentage of such Borrowing
or, if applicable, to purchase a participation interest in the
Swingline Loans pursuant to Section 2.01(B)(iii) and such
obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Bank has or may
have against the Swingline Lender, the Agent or the Company or
any of its Subsidiaries or anyone else for any reason
whatsoever (including without limitation any failure to comply
with the requirements of Section 3.02, other than the
Swingline Lender making a Swingline Loan when it had received
written notice from the Company, Masco Europe or any Lender of
the existence of a Default); (B) the occurrence or continuance
of a Default, subject to Section 2.01(B)(iii); (C) any adverse
change in the condition (financial or otherwise) of the
Company or any of its Subsidiaries; (D) any breach of this
Agreement by the Company or Masco Europe or any other Bank; or
(E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing (including
without limitation the Company's or Masco Europe's failure to
satisfy any conditions contained in Article III or any other
provision of this Agreement, so long as the Swingline Lender
did not have any specific written notice from the Company,
Masco Europe or a Bank that the conditions to making a
Swingline Loan were not satisfied at the time such Swingline
Loan was made).
(iii) If, for any reason (including without
limitation as a result of the occurrence of a Default with
respect to the Company pursuant to Sections 6.01(G) or (H))
Loans may not be made by the Banks as described in Section
2.01(B)(ii), then (A) the relevant Borrower agrees that each
Swingline Loan not paid pursuant to Section 2.01(B)(ii) shall
bear interest, payable on demand by the Swingline Lender, at
the rate per annum equal to the sum of 2% plus the Floating
Rate, (B) the Borrowers agree that each Swingline Loan
outstanding in an Agreed Currency other than Dollars shall be
immediately and automatically converted to and redenominated
in Dollars equal to the Equivalent Amount of such Swingline
Loan determined as of the date of such conversion, and (C)
effective on the date each such Loan would otherwise have been
made, each Bank severally agrees that it shall unconditionally
and irrevocably, without regard to the occurrence of any
Default, in lieu of deemed disbursement of loans, to the
extent of such Bank's Commitment, purchase a participation
interest in the Swingline Loans by paying its Commitment
Percentage thereof, provided, however, that no Bank shall be
obligated to purchase such participation in a Swingline Loan
made by the
18 SIDLEY XXXXXX XXXXX & XXXX
Swingline Lender when it had received written notice from the
Company, Masco Europe or any Bank of the existence of a
Default. Each Bank will immediately transfer to the Swingline
Lender, in same day funds, the amount of its participation.
Each Bank shall share based on its Commitment Percentage in
any interest which accrues thereon and in all repayments
thereof. If and to the extent that any Bank shall not have so
made the amount of such participating interest available to
the Swingline Lender, such Bank and the Company severally
agree to pay to the Swingline Lender forthwith on demand such
amount together with interest thereon, for each day from the
date of demand by the Swingline Lender until the date such
amount is paid to the Swingline Lender, at (x) in the case of
the Company, at the interest rate specified above and (y) in
the case of such Bank, the Federal Funds Effective Rate for
the first three days and at the interest rate specified above
thereafter.
SECTION 2.02. Notice of Borrowing. Each Borrower shall give
the Agent notice substantially in the form of Exhibit E (a "Notice of
Borrowing") not later than 10:00 a.m. (Detroit time) on (x) the date of each
Floating Rate Borrowing, (y) the third Eurocurrency Business Day before each
Eurocurrency Borrowing in Dollars to the Company, and (z) the fifth Eurocurrency
Business Day before each Eurocurrency Borrowing in euro to the Company or in any
Syndicated Currency to Masco Europe, specifying:
(A) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Eurocurrency
Business Day in the case of a Eurocurrency Borrowing,
(B) the aggregate amount and Syndicated Currency of such
Borrowing,
(C) whether the Loans comprising such Borrowing are to be
Floating Rate Loans or Eurocurrency Loans, and
(D) in the case of a Eurocurrency Borrowing, the duration
of the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
The Company, or Masco Europe if authorized by the Company,
shall give the Swingline Lender notice of its request for each Swingline Loan
substantially in the form of Exhibit E-1 (a "Notice of Swingline Borrowing") not
later than 1:00 p.m. (Detroit time) on the same Domestic Business Day or
Eurocurrency Business day, as applicable, such Swingline Loan in Dollars is
requested to be made to the Company, and not later than the time agreed upon by
the applicable Borrower and the Swingline Lender with respect to any other
Swingline Loan. The Agent will make the Swingline Loans available to the
applicable Borrower at its relevant Eurocurrency Payment Office.
SECTION 2.03. Notice to Banks; Funding of Loans.
(A) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of such
Bank's share (if any) of such Borrowing and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
19 SIDLEY XXXXXX XXXXX & XXXX
Promptly after its receipt of notice from the Issuing Bank pursuant to
Section 2.17(D)(i), the Agent will notify each Bank of the contents of
each L/C Request hereunder.
(B) Not later than 12:00 Noon (Detroit time) on the date
of each Borrowing, and not later than 12:00 Noon (London time) on the
date of each Borrowing requested by Masco Europe, each Bank
participating therein shall (except as provided in subsection (C) of
this Section) make available its share of such Borrowing, in Federal or
other funds immediately available in Detroit or London, as the case may
be, to the Agent at its relevant address referred to in Section 9.01 or
otherwise specified in writing by the Agent to the Banks. Unless the
Agent determines that any applicable condition specified in Article III
has not been satisfied, the Agent will make the funds so received from
the Banks available to the Company at the Agent's aforesaid address in
the United States or, to Masco Europe by wire transfer in immediately
available funds to Masco Europe's account maintained at Bank One in
London, as applicable.
(C) If any Bank makes a new Loan hereunder on a day on
which the Borrower requesting such Loan is to repay all or any part of
an outstanding Loan from such Bank, such Bank shall apply the proceeds
of its new Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Bank to the Agent as
provided in subsection (B) of this Section, or remitted by such
Borrower to the Agent as provided in Section 2.11, as the case may be.
(D) Unless the Agent shall have received notice from a
Bank prior to the time of any Borrowing that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent
may assume that such Bank has made such share available to the Agent on
the date of such Borrowing in accordance with subsections (B) and (C)
of this Section and the Agent may, in reliance upon such assumption,
make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such
share available to the Agent, such Bank and the relevant Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to such Borrower until the date
such amount is repaid to the Agent, at (i) in the case of the Borrower,
a rate per annum equal to the higher of the Federal Funds Effective
Rate and the interest rate applicable thereto pursuant to Section 2.06
and (ii) in the case of such Bank, the Federal Funds Effective Rate. If
such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement. Nothing in this Section
2.03(D) shall relieve such Bank or any other Bank of its obligation to
make its share of each Borrowing available to the Agent in accordance
with the terms of this Agreement.
(E) Floating Rate Loans shall continue as Floating Rate
Loans unless and until such Floating Rate Loans are converted into
Eurocurrency Loans pursuant to this Section 2.03(E) or are repaid in
accordance with Section 2.10. Each Eurocurrency Loan shall continue as
a Eurocurrency Loan until the end of the then applicable Interest
Period therefor, at which time:
20 SIDLEY XXXXXX XXXXX & XXXX
(i) each such Eurocurrency Loan denominated in
Dollars shall be automatically converted into a Floating Rate
Loan unless (x) such Eurocurrency Loan is or was repaid in
accordance with Section 2.10 or (y) the relevant Borrower
shall have given the Agent a Conversion/Continuation Notice
(as defined below) requesting that, at the end of such
Interest Period, such Eurocurrency Loan either continue as a
Eurocurrency Loan for the same or another Interest Period or
be converted into a Floating Rate Loan; and
(ii) each such Eurocurrency Loan denominated in
euro shall automatically continue as a Eurocurrency Loan in
euro with an Interest Period of one month unless (x) such
Eurocurrency Loan is or was repaid in accordance with Section
2.10 or (y) the relevant Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurocurrency
Loan continue as a Eurocurrency Loan for the same or another
Interest Period.
Subject to the terms of Section 2.01(A), the Borrowers may
elect from time to time to convert all or any part of a Loan of any type into
any other type or types of Loans denominated in the same or any other Syndicated
Currency; provided that any conversion of any Eurocurrency Loan shall be made
on, and only on, the last day of the Interest Period applicable thereto. The
relevant Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion or continuation of a Loan
not later than 10:00 a.m. (Detroit time) at least one Domestic Business Day, in
the case of a conversion into or continuation of a Floating Rate Loan, three
Eurocurrency Business Days, in the case of a conversion into or continuation by
the Company of a Eurocurrency Loan denominated in Dollars, or five Eurocurrency
Business Days, in the case of either (x) a conversion into or continuation of a
Eurocurrency Loan denominated in euro by the Company or (y) a conversion or
continuation of any Eurocurrency Loan by Masco Europe, prior to the date of the
requested conversion or continuation, specifying:
(a) the requested date, which shall be
a Domestic Business Day or in the case of a
conversion into or continuation of a Eurocurrency
Loan, a Eurocurrency Business Day, of such conversion
or continuation, and
(b) the Syndicated Currency, amount and
type(s) of Loan(s) into which such Loan is to be
converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency
Loan, the duration of the Interest Period applicable
thereto.
SECTION 2.04. Noteless Agreement; Evidence of Indebtedness.
(A) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Bank resulting from each Loan made by such Bank from
time to time, including the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
21 SIDLEY XXXXXX XXXXX & XXXX
(B) The Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the type
thereof and the Interest Period with respect thereto, (b) the amount of
any principal or interest due and payable or to become due and payable
from each Borrower to each Bank hereunder, (c) the original stated
amount of each Letter of Credit and the amount of the L/C Obligations
outstanding at any time and (d) the amount of any sum received by the
Agent hereunder from each Borrower and each Bank's share thereof.
(C) The entries maintained in the accounts maintained
pursuant to paragraphs (A) and (B) above shall be prima facie evidence
of the existence and amounts of the Loans (including the principal and
interest owing) therein recorded; provided, however, that the failure
of the Agent or any Bank to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay
the Loans (including the principal and interest owing) in accordance
with their terms.
(D) Any Bank or the Swingline Lender may request that its
Loans be evidenced by a Note. In such event, each Borrower requested by
such Bank or the Swingline Lender shall prepare, execute and deliver to
such Bank or Swingline Lender, as the case may be, a Note payable to
the order of such Bank or Swingline Lender in substantially the form of
Exhibit A in the case of any Bank or the form of Exhibit B in
the case of the Swingline Lender. Thereafter, the Loans evidenced by
such Note and interest thereon shall at all times (including
after any assignment pursuant to this Agreement) be represented by one
or more Notes payable to the order of the payee named therein or any
assignee pursuant to this Agreement, except to the extent that any such
Bank or assignee subsequently returns any such Note for cancellation
and requests that such Loans once again be evidenced as described in
paragraphs (A) and (B) above.
SECTION 2.05. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.06. Interest Rates.
(A) Each Floating Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the
Floating Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of or
overdue interest on any Floating Rate Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the Floating Rate for such day.
(B) Each Eurocurrency Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the
Eurocurrency Rate. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day
thereof.
22 SIDLEY XXXXXX XXXXX & XXXX
(C) Any overdue principal of or interest on any
Eurocurrency Loan shall bear interest, payable on demand, for each day
from and including the date payment thereof was due to but excluding
the date of actual payment, at a rate per annum equal to the sum of 2%
plus the higher of (i) the Eurocurrency Rate applicable to such Loan
prior to its maturity and (ii) the Eurocurrency Rate which would be
applicable to a Eurocurrency Loan to the relevant Borrower hereunder
made on such date for a period of one day (or, if such amount due
remains unpaid more than three Eurocurrency Business Days, then for
such other period of time not longer than six months as the Agent may
elect, or, if the circumstances described in Section 8.01 shall exist,
at a rate per annum equal to the sum of 2% plus the Floating Rate for
such day).
(D) Each Swingline Loan shall bear interest (a) for
Dollar denominated Swingline Loans, at such rate as shall be quoted by
the Swingline Lender to the relevant Borrower, but which interest rate
shall not exceed the Floating Rate, and (b) for Swingline Loans
denominated in an Agreed Currency other than Dollars, at the applicable
local rate of interest as determined by the Swingline Lender and quoted
by the Swingline Lender to the relevant Borrower as adjusted for
associated cost rates or other applicable reserve rate, as applicable,
and, in each case, as agreed between the relevant Borrower and the
Swingline Lender at the time such Swingline Loan is made.
(E) The Agent shall determine each interest rate
applicable to the Loans (other than Swingline Loans) hereunder. The
Swingline Lender shall determine each interest rate applicable to the
Swingline Loans hereunder. The Agent shall give prompt notice to the
relevant Borrowers and the participating Banks, and the Swingline
Lender shall give prompt notice to the relevant Borrowers and the
Agent, in each case, by telex, cable or facsimile of each rate of
interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error (provided that the
determination of such amount or amounts is made on a reasonable basis).
SECTION 2.07. Facility Fees and Utilization Fees.
(A) The Company shall pay to the Agent, for the account
of the Banks ratably in proportion to their Commitments, a facility fee
calculated for each day at the facility fee rate for such day
determined in accordance with the Pricing Schedule. Such facility fee
shall accrue for each day (i) from and including the Closing Date to
but excluding the Termination Date (or earlier date of termination of
the Commitments in their entirety), on the Aggregate Commitment
(whether used or unused) in effect on such day and (ii) from and
including such date of termination of the Commitments to but excluding
the date the Loans and L/C Obligations shall be repaid in their
entirety, on the aggregate principal amount of the Loans and L/C
Obligations outstanding on such day.
(B) Prior to the earlier of (a) the date of termination
of the "Commitments" and the repayment in full in cash of all of the
"Loans" under (and as such terms are defined in) the 364-Day Credit
Agreement and (b) the "Conversion Date" (as defined in the 364-Day
Credit Agreement) (such date being the "364-Day Revolving Termination
Date"), for each day on which the sum of (x) the aggregate principal
amount of outstanding Loans and L/C Obligations hereunder plus (y) the
aggregate principal
23 SIDLEY XXXXXX XXXXX & XXXX
amount of outstanding "Loans" under (and as defined in) the 364-Day
Credit Agreement exceeds 33% of the sum of (i) the Aggregate Commitment
hereunder plus (ii) the "Aggregate Commitment" under (and as defined
in) the 364-Day Credit Agreement, a utilization fee at the per annum
rate set forth on the Pricing Schedule will accrue on the aggregate
principal amount of outstanding Loans and L/C Obligations for the
ratable benefit of the Banks. From and after the 364-Day Revolving
Termination Date, for each day on which the aggregate principal amount
of outstanding Loans and L/C Obligations exceeds 33% of the Aggregate
Commitment, a utilization fee at the per annum rate set forth on the
Pricing Schedule will accrue on the aggregate principal amount of
outstanding Loans and L/C Obligations for the ratable benefit of the
Banks. No utilization fee shall accrue on the Swingline Loans. For any
date of determination, such utilization fee shall be calculated using
(i) for each Eurocurrency Loan, the Dollar Amount of such Eurocurrency
Loan determined as of the date two Eurocurrency Business Days prior to
the Borrowing Date, or, if applicable, date of conversion/continuation,
of such Eurocurrency Loan, (ii) for each Swingline Loan bearing a fixed
rate of interest, the Dollar Amount of such Swingline Loan determined
as of the date the Swingline Lender shall quote such fixed rate of
interest to the applicable Borrower, and (iii) for each Swingline Loan
bearing a floating rate of interest, the Dollar Amount of such
Swingline Loan determined as of such date of determination.
(C) Fees accrued under this Section shall be payable
quarterly in arrears on the date fifteen days after the last day of
each March, June, September and December and upon the termination of
the Commitments in their entirety (and, if later, the date the Loans
and L/C Obligations shall be repaid in their entirety).
SECTION 2.08. Optional Termination or Reduction of
Commitments.
(A) The Company may, upon at least three Eurocurrency
Business Days' notice to the Agent, (i) terminate the Commitments at
any time, if no Loans or L/C Obligations are outstanding at such time,
or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple of $1,000,000, the aggregate amount
of the Commitments in excess of the aggregate outstanding principal
amount of the Loans and the L/C Obligations.
(B) Upon receipt of a notice of termination or reduction
pursuant to this Section, the Agent shall promptly notify each Bank of
the contents thereof and of the new amount (if any) of such Bank's
Commitment and such notice shall not thereafter be revocable by the
Company.
SECTION 2.09. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date, and any Loans and
Reimbursement Obligations then outstanding (together with accrued interest
thereon) shall be due and payable on such date (or such earlier date as the
Loans and Reimbursement Obligations shall become due and payable pursuant to
Article VI).
SECTION 2.10. Prepayments.
24 SIDLEY XXXXXX XXXXX & XXXX
(A) The Borrowers (i) may prepay any Floating Rate
Borrowing or Swingline Loan at any time without penalty on the same day
or (ii) upon at least five Eurocurrency Business Days' notice to the
Agent, subject to Section 2.12, prepay any Eurocurrency Borrowing, in
whole at any time, or from time to time in part in amounts aggregating
$10,000,000 or any larger multiple of $1,000,000 (or the Approximate
Equivalent Amounts if denominated in euro), 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) Upon receipt of a notice of prepayment pursuant to
this Section, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
(C) The Agent will determine the Dollar Amount of (i)
each Eurocurrency Borrowing as of the date two Eurocurrency Business
Days prior to the Borrowing Date, or if applicable, date of
conversion/continuation of such Borrowing, and (ii) all outstanding
Borrowings (including all Swingline Loans) on and as of the last
Eurocurrency Business Day of each quarter and on any other Eurocurrency
Business Day elected by the Agent in its discretion or upon instruction
by the Required Banks. Each day upon or as of which the Agent
determines Dollar Amounts as described in the preceding sentence is
herein described as a "Computation Date". If, on any Computation Date,
as a result of fluctuations in currency exchange rates the Dollar
Amount of (A) the aggregate principal amount of all outstanding Loans
and L/C Obligations exceeds one hundred five percent of the Aggregate
Commitment, or (B) the aggregate principal amount of all Eurocurrency
Loans denominated in euro exceeds $787,500,000, or (C) the aggregate
principal amount of all outstanding Swingline Loans exceeds one hundred
five percent of the Swingline Amount, the Borrowers shall (x) in the
case of an event described in clause (A) above, immediately repay Loans
in an aggregate principal amount sufficient to eliminate any such
excess and (y) in the case of an event described in clause (B) or (C)
above, on the earlier of the next succeeding date of Borrowing of any
Loan or date of conversion or continuation of any Loan, repay the Loans
in an aggregate principal amount sufficient to eliminate any such
excess.
SECTION 2.11. General Provisions as to Payments.
(A) The Borrowers shall make each payment of principal
of, and interest on, the Loans and of fees hereunder, not later than
1:00 p.m. (local time) in the relevant currency on the date when due to
the Agent at its address referred to in Section 9.01 or at any other
Lending Installation of the Agent with respect to such obligation as
specified in writing by the Agent to the Borrowers; provided, however,
that the Borrower shall make payments required to be made directly to
the Issuing Bank pursuant to Section 2.17 in the aforementioned manner
and at the branch agreed to by the Issuing Bank and the Company.
Whenever any payment of principal of, or interest on, the Floating Rate
Loans or of Reimbursement Obligations or 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
25 SIDLEY XXXXXX XXXXX & XXXX
Domestic Business Day. Whenever any payment of principal of, or
interest on, the Eurocurrency Loans shall be due on a day which is not
a Eurocurrency Business Day, the date for payment thereof shall be
extended to the next succeeding Eurocurrency Business Day unless such
Eurocurrency Business Day falls in another calendar month, in which
case the date for payment thereof shall be the next preceding
Eurocurrency Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be
payable for such extended time.
(B) Unless the Agent shall have received notice from the
relevant Borrower prior to the date on which any payment is due to the
Banks hereunder that such Borrower will not make such payment in full,
the Agent may assume that such Borrower has made such payment in full
to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent
that such Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate for the first three days
and at the Floating Rate thereafter.
(C) Each Loan shall be repaid and each payment of
interest thereon shall be paid in the currency in which such Loan was
made; provided, that any Swingline Loan may be repaid in any currency
agreed to by the Company and the Swingline Lender. All Reimbursement
Obligations and other amounts owing pursuant to Section 2.17 shall be
repaid in Dollars. All payments required to be made by the Borrowers in
Dollars hereunder will be made in immediately available funds and all
payments required to be made by the Borrowers in a currency other than
Dollars will be made in the required currency and in same day or such
other funds as the Agent may determine to be customary for the
settlement of deposits in such currency at its Eurocurrency Payment
Office for such currency and shall be applied ratably by the Agent
among the Banks. Each payment delivered to the Agent for the account of
any Bank shall be delivered promptly by the Agent to such Bank in the
same type of funds that the Agent received at, (a) with respect to
Floating Rate Loans and Eurocurrency Loans denominated in Dollars, its
address specified pursuant to Section 9.01 or at any Lending
Installation specified in a notice received by the Agent from such Bank
and (b) with respect to Eurocurrency Loans denominated in euro, in the
funds received from the Borrower at the address of the Agent's
Eurocurrency Payment Office for such currency. The Agent is hereby
authorized to charge any account of the relevant Borrower designated by
such Borrower as the account from which payments are to be made and
maintained with Bank One or any of its affiliates for each payment of
principal, interest and fees as it becomes due hereunder.
(D) Subject to Section 2.14, all payments of principal of
and interest on the Loans, all payments in respect of Letters of Credit
and other amounts payable by the Borrowers to any Bank or the Issuing
Bank hereunder shall be made by the Borrowers without setoff, deduction
or counterclaim and, subject to the next succeeding sentence, free and
clear of, and without deduction or withholding for, or on account of,
any present
26 SIDLEY XXXXXX XXXXX & XXXX
or future taxes, levies, imposts, duties, fees, assessments, or other
charges of whatever nature, imposed by any governmental authority, or
by any department, agency or other political subdivision or taxing
authority. Subject to Section 2.14, if any such taxes, levies, imposts,
duties, fees, assessments or other charges are imposed, the relevant
Borrower will pay such additional amounts as may be necessary so that
payment of principal of and interest on the Loans and the payment of
the Reimbursement Obligations and other amounts payable hereunder,
after withholding or deduction for or on account thereof, will not be
less than any amount provided to be paid hereunder.
SECTION 2.12. Funding Losses. If any Borrower makes any
payment of principal with respect to any Eurocurrency Loan (pursuant to Section
2.10, Article VI, Article VIII or otherwise) on any day other than the last day
of the Interest Period applicable thereto, or if any Borrower fails to borrow
any Eurocurrency Loan after notice has been given to any Bank in accordance with
Section 2.03(A) or if any Borrower fails to prepay any Eurocurrency Loan after
notice has been given to any Bank in accordance with Section 2.10(B), such
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or failure to borrow,
provided that such Bank shall have delivered to such Borrower a certificate as
to the amount of such loss or expense, which certificate shall be conclusive in
the absence of manifest error, provided that the determination of such loss or
expense is made on a reasonable basis.
SECTION 2.13. Computation of Interest and Fees. Interest on
Floating Rate Loans based on the Prime Rate and Swingline Loans 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) (unless otherwise agreed to for Swingline Loans between
the Swingline Lender and the applicable Borrower). All other interest and fees
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
SECTION 2.14. Withholding Tax Exemption.
(A) At least five Domestic Business Days prior to the
first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws
of the United States of America or a state thereof agrees that it will
deliver to each of the Company and the Agent two duly completed copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI and any
additional forms necessary for claiming complete exemption from United
States withholding taxes (or any successor or substitute forms),
certifying in either case that such Bank is entitled to receive
payments under this Agreement, the Loans and the Letters of Credit
without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form W-8BEN or W-8ECI and any
additional forms necessary for claiming complete exemption from United
States withholding taxes (or any successor or substitute forms) further
undertakes to deliver to each of the Company and the Agent two
additional copies of such forms (or any successor or substitute forms)
on or before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change
27 SIDLEY XXXXXX XXXXX & XXXX
in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the
Company or the Agent to the extent it may lawfully do so, in each case
certifying that such Bank is entitled to receive payments under this
Agreement and the Loans and Letters of Credit without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or
which would prevent such Bank from duly completing and delivering any
such form with respect to it and such Bank advises the Company and the
Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(B) For any period with respect to which a Bank has
failed to provide the Company, the Agent or the relevant Borrower with
the appropriate form as required by the foregoing subsection (unless
such failure is due to a change in treaty, law or regulation occurring
after the date on which such form originally was required to be
provided), such Bank shall not be entitled to compensation pursuant to
the last sentence of Section 2.11(D).
SECTION 2.15. Judgment Currency. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due from any
Borrower hereunder in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the specified currency with such other currency at the Agent's
main Chicago office on the Eurocurrency Business Day preceding that on which
final, non-appealable judgment is given. The obligations of such Borrower in
respect of any sum due to any Bank or the Agent hereunder shall, notwithstanding
any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Eurocurrency Business Day following receipt by such
Bank or the Agent (as the case may be) of any sum adjudged to be so due in such
other currency such Bank or the Agent (as the case may be) may in accordance
with normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Bank or the Agent, as the case may be,
in the specified currency, such Borrower agrees, to the fullest extent that it
may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or the Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Bank or the Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank under
Section 9.04, such Bank or the Agent, as the case may be, agrees to remit such
excess to such Borrower.
SECTION 2.16. Lending Installations. Each Bank will book its
Loans and its participations in L/C Obligations and Swingline Loans at the
appropriate Lending Installation listed on the administrative information sheets
provided to the Agent in connection herewith or such other Lending Installation
designated by such Bank in accordance with the penultimate sentence of this
Section 2.16. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and participations in Letters of Credit and Swingline
Loans and any
28 SIDLEY XXXXXX XXXXX & XXXX
Notes issued hereunder shall be deemed held by each Bank for the benefit of any
such Lending Installation. Each Bank may, by written notice to the Agent and the
Borrowers in accordance with Article IX, designate replacement or additional
Lending Installations through which Loans will be made by it and for whose
account Loan payments are to be made. To the extent reasonably possible, each
Bank shall designate a Lending Installation to reduce any liability of a
Borrower to such Bank under Article VIII, so long as such designation is not
disadvantageous to such Bank in any material respect.
SECTION 2.17. The Letter of Credit Facility.
(A) Obligation to Issue. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrowers herein set forth, the Issuing
Bank hereby agrees to issue for the account of the Company and/or any
of its Subsidiaries (in such capacity, a "L/C Account Party") through
the Issuing Bank's branches as it and the Company or any such
Subsidiary may jointly agree, one or more Letters of Credit in Dollars
in accordance with this Section 2.17, from time to time during the
period, commencing on the date hereof and ending on the Domestic
Business Day prior to the Termination Date (subject to the limitations
set forth in Section 2.17(B)(ii) below); provided, however, that,
notwithstanding the issuance of any Letter of Credit for the account of
any Subsidiary of the Company, any and all Reimbursement Obligations,
fees, costs, expenses, indemnities or other obligations owing with
respect any such Letter of Credit under this Agreement shall constitute
primary obligations of the Company (and, if the Issuing Bank so
requests, such obligations shall be joint and several obligations the
Company and such Subsidiary, as evidenced by a separate agreement in
form and substance reasonably satisfactory to the Company and the
Issuing Bank, signed by such Subsidiary, providing for such joint and
several liability and affirming such Subsidiary's assumption of all of
the covenants and other obligations set forth in this Section 2.17).
(B) Amounts. The Issuing Bank shall not have any
obligation to and the Issuing Bank shall not:
(i) issue any Letter of Credit if on the date of
issuance, before or after giving effect to the Letter of
Credit requested hereunder, (a) the aggregate principal amount
of the Loans (including Swingline Loans) outstanding at such
time plus the aggregate amount of the L/C Obligations
outstanding at such time would exceed the Aggregate Commitment
at such time, (b) the aggregate outstanding amount of the L/C
Obligations would exceed $100,000,000 or (c) the aggregate
amount of any Bank's Loans, obligations with respect to
Swingline Loans and its L/C Interest would exceed such Bank's
Commitment; or
(ii) issue any Letter of Credit which has an
expiration date later than the date which is the earlier of
(a) one (1) year after the date of issuance thereof or (b)
five (5) Domestic Business Days immediately preceding the
Termination Date, provided that any Letter of Credit with a
one-year tenor may provide for the renewal thereof for
additional one-year periods (which shall in no event extend
beyond the date referred to in the immediately preceding
clause (ii)(b)).
29 SIDLEY XXXXXX XXXXX & XXXX
(C) Conditions. In addition to being subject to the
satisfaction of the applicable conditions contained in Article III, the
obligation of the Issuing Bank to issue any Letter of Credit is subject
to the satisfaction in full of the following conditions:
(i) the Company shall have delivered (for itself
or on behalf of any applicable L/C Account Party) to the
Issuing Bank by telex or telefax at such times as the Issuing
Bank may reasonably prescribe, a request for issuance of such
Letter of Credit in substantially the form of Exhibit G hereto
(a "L/C Request"), which shall constitute the application
therefor and shall include such customary information as may
be required pursuant to the terms thereof (including, to the
extent not previously provided to the Issuing Bank,
resolutions and specimen signatures verifying the officers of
the Company authorized to submit L/C Requests) and the
proposed Letter of Credit shall be reasonably satisfactory to
the Issuing Bank as to form and content; and
(ii) as of the date of issuance no order,
judgment or decree of any court, arbitrator or Governmental
Authority shall purport by its terms to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit and no law,
rule or regulation applicable to the Issuing Bank and no
request or directive (whether or not having the force of law)
from a Governmental Authority with jurisdiction over the
Issuing Bank shall prohibit or request that the Issuing Bank
refrain from the issuance of Letters of Credit generally or
the issuance of that Letter of Credit.
(D) Procedure for Issuance of Letters of Credit;
Extensions of and Amendments to Letters of Credit.
(i) Issuance. Subject to the terms and
conditions of this Section 2.17 (including Section 2.17(C))
and provided that the applicable conditions set forth in
Article III hereof have been satisfied, the Issuing Bank
shall, on the requested date, issue a Letter of Credit on
behalf of the applicable L/C Account Party in accordance with
the Issuing Bank's usual and customary business practices and,
in this connection, the Issuing Bank may assume that the
applicable conditions set forth in Section 3.02 hereof have
been satisfied unless it shall have received specific written
notice to the contrary from the Agent, the Company or a Bank.
The Issuing Bank shall give the Agent written or facsimile
notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance of a Letter of Credit (which notice,
in the case of an Issuing Bank other than Bank One, shall be
delivered not later than two (2) Domestic Business Days prior
to any such issuance unless the Agent waives such requirement
in its reasonable discretion), provided, however, that the
failure to provide such notice shall not result in any
liability on the part of the Issuing Bank.
(ii) Extension or Amendment. The Issuing Bank
shall not extend or amend any Letter of Credit unless the
requirements of this Section 2.17(D) are met as though a new
Letter of Credit was being requested and issued.
30 SIDLEY XXXXXX XXXXX & XXXX
(E) Letter of Credit Participation. Immediately upon the
issuance of each Letter of Credit hereunder, each Bank shall be deemed
to have automatically, irrevocably and unconditionally purchased and
received from the Issuing Bank an undivided interest and participation
in and to such Letter of Credit, the obligations of the Company (and,
if appropriate, any other applicable L/C Account Party) in respect
thereof, and the liability of the Issuing Bank thereunder
(collectively, an "L/C Interest") in an amount equal to the amount
available for drawing under such Letter of Credit multiplied by such
Bank's Commitment Percentage. The Issuing Bank will notify each Bank
promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit. To the extent that the Company shall not have
reimbursed the Issuing Bank with respect to any L/C Draft, on or before
the Domestic Business Day on which the Issuing Bank makes payment of
each such L/C Draft or, in the case of any other draw on a Letter of
Credit, on demand by the Agent, each Bank shall make payment to the
Agent, for the account of the Issuing Bank, in immediately available
funds in an amount equal to such Bank's Commitment Percentage of the
amount of such payment or draw, which amount shall be deemed to be a
Loan made by each such Bank pursuant to Section 2.01(A) (or if the
Commitments hereunder shall have terminated, payment in respect of such
Bank's purchase of its L/C Interest in such Letter of Credit). The
obligation of each Bank to reimburse the Issuing Bank under this
Section 2.17(E) shall be unconditional, continuing, irrevocable and
absolute and such obligation shall not be affected by any circumstance,
happening or event whatsoever (including without limitation the
Company's failure to satisfy any conditions contained in Article III or
any other provision of this Agreement prior to the issuance of the
applicable Letter of Credit, so long as (i) the Issuing Bank did not
have any specific written notice from the Agent, the Company or a Bank
that the conditions to issuing the Letter of Credit were not satisfied
at the time such Letter of Credit was issued and (ii) any such
condition has not since been satisfied or cured (it being understood
and agreed that each Bank's obligation to reimburse the Issuing Bank
under this Section 2.17(E) shall be automatically and irrevocably
reinstated immediately upon the subsequent satisfaction or cure of any
condition that was not satisfied at the time a Letter of Credit was
issued and of which the Issuing Bank received specific written notice
from the Agent, the Company or a Bank prior to such issuance). In the
event that any Bank fails to make payment to the Agent of any amount
due under this Section 2.17(E), the Agent shall be entitled to receive,
retain and apply against such obligation the principal and interest
otherwise payable to such Bank hereunder until the Agent receives such
payment from such Bank or such obligation is otherwise fully satisfied;
provided, however, that nothing contained in this sentence shall
relieve such Bank of its obligation to reimburse the Issuing Bank for
such amount in accordance with this Section 2.17(E).
(F) Reimbursement Obligation. The Issuing Bank will
notify the Company promptly upon presentation to it of an L/C Draft or
upon any other draw under a Letter of Credit. The Company agrees
unconditionally, irrevocably and absolutely to pay to the Agent on the
date such presentation or draw is made (the "Draw Date") if the Issuing
Bank notifies the Company of such presentation or draw before 10:00
a.m. (Detroit time) on such Draw Date (or the Domestic Business Day
immediately succeeding such Draw Date if the Issuing Bank notifies the
Company of such presentation after 10:00 a.m. (Detroit time) on such
Draw Date), for the account of the Banks, the amount of each
31 SIDLEY XXXXXX XXXXX & XXXX
advance which may be drawn under or pursuant to a Letter of Credit or
an L/C Draft related thereto (such obligation of the Company to
reimburse the Agent for an advance made under a Letter of Credit or L/C
Draft being hereinafter referred to as a "Reimbursement Obligation"
with respect to such Letter of Credit or L/C Draft). If the Company at
any time fails to repay a Reimbursement Obligation pursuant to this
Section 2.17(F), (i) the Company shall be deemed to have elected to
borrow Loans from the Banks, in Dollars, as of the date of the advance
giving rise to the Reimbursement Obligation, equal in amount to the
amount of the unpaid Reimbursement Obligation and (ii) the Agent shall
use reasonable efforts to notify the Company of such deemed election to
borrow Loans; provided, however, that the Agent's failure to provide
such notice shall in no way affect the validity of such deemed election
to borrow Loans, the obligations of the Company or any Account Party
with respect thereto or any other rights of the Agent, the Issuing Bank
or the Banks hereunder. Such Loans shall be made as of the date of the
payment giving rise to such Reimbursement Obligation, automatically,
without notice and without any requirement to satisfy the conditions
precedent otherwise applicable to an advance of Loans. Such Loans shall
constitute Floating Rate Loans, the proceeds of which shall be used to
repay such Reimbursement Obligation. If, for any reason, the Company
fails to repay a Reimbursement Obligation on the day such Reimbursement
Obligation arises and, for any reason, the Banks are unable to make or
have no obligation to make Loans, then such Reimbursement Obligation
shall bear interest from and after such day, until paid in full, at the
interest rate applicable to Floating Rate Loans pursuant to Section
2.06(A).
(G) Cash Collateral. Notwithstanding anything to the
contrary herein or in any L/C Request, after the occurrence and during
the continuance of an Event of Default, the Company shall, upon the
Agent's demand, deliver to the Agent for the benefit of the Banks and
the Issuing Bank, cash, or other collateral of a type satisfactory to
the Required Banks, having a value, as determined by such Banks, equal
to the aggregate outstanding L/C Obligations. Any such collateral shall
be held by the Agent in a separate interest bearing account
appropriately designated as a cash collateral account in relation to
this Agreement and the Letters of Credit and retained by the Agent for
the benefit of the Banks and the Issuing Bank as collateral security
for the Company's obligations in respect of this Agreement as they
relate to each of the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the Issuing Bank for drawings or payments
under or pursuant to Letters of Credit or L/C Drafts. If no Event of
Default shall be continuing, amounts (including interest income)
remaining in any cash collateral account established pursuant to this
Section 2.17(G) which are not to be applied to reimburse an Issuing
Bank for amounts actually paid or to be paid by the Issuing Bank in
respect of a Letter of Credit or L/C Draft, shall be returned to the
Company (after deduction of the Agent's reasonable expenses incurred in
connection with such cash collateral account).
(H) Letter of Credit Fees. The Company agrees to pay (i)
quarterly in arrears on the date fifteen days after the last day of
each March, June, September and December and upon the termination of
the Commitments in their entirety (and, if later, the date the Loans
and L/C Obligations shall be repaid in their entirety) to the Agent for
the ratable benefit of the Banks a letter of credit fee (the "Letter of
Credit Fee") at a rate per annum equal to the Applicable Margin on the
average daily outstanding face amount available
32 SIDLEY XXXXXX XXXXX & XXXX
for drawing under all Letters of Credit; provided, that after the
occurrence and during the continuance of an Event of Default, the
Required Banks may, at their option, by notice to the Borrowers (which
notice may be revoked at the option of the Required Banks
notwithstanding any provision of Section 9.05 requiring unanimous
consent of the Banks to alter fees), declare that the Letter of Credit
Fee shall be increased by 2% per annum, (ii) quarterly in arrears on
the date fifteen days after the last day of each March, June, September
and December and upon the termination of the Commitments in their
entirety (and, if later, the date the Loans and L/C Obligations shall
be repaid in their entirety) to the Issuing Bank for its sole account,
a letter of credit fee of one-eighth of one percent (0.125%) per annum
on the average daily outstanding face amount available for drawing
under all Letters of Credit issued by the Issuing Bank, and (iii) to
the Issuing Bank for its sole account, all customary fees and other
issuance, amendment, cancellation, document examination, negotiation,
transfer and presentment expenses and related charges in connection
with the issuance, amendment, cancellation, presentation of L/C Drafts,
negotiation, transfer and the like customarily charged by the Issuing
Bank with respect to Letters of Credit, which shall be reasonably
agreed to by both the Company and the Issuing Bank, payable at the time
of invoice of such amounts.
(I) Issuing Bank Reporting Requirements. In addition to
the notices otherwise required under this Section 2.17, the Issuing
Bank (or if the Issuing Bank is an Affiliate of a Bank, then the
applicable Bank) shall, no later than the tenth Domestic Business Day
following the last day of each month, provide to the Agent, upon the
Agent's request, schedules, in form and substance reasonably
satisfactory to the Agent, showing the date of issue, L/C Account Party
or L/C Account Parties, amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time
during such month and the aggregate amount payable by the Company and,
if applicable, any other L/C Account Party, during such month. In
addition, upon the request of the Agent, the Issuing Bank (or
applicable Bank if the Issuing Bank is an Affiliate of a Bank) shall
furnish to the Agent copies of any Letter of Credit and any L/C Request
with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Agent. Upon the reasonable request of any Bank, the Agent will provide
to such Bank information concerning such Letters of Credit.
(J) Indemnification; Exoneration.
(i) In addition to amounts payable as elsewhere
provided in this Section 2.17, the Company hereby agrees to
protect, indemnify, pay and save harmless the Agent, the
Issuing Bank and each Bank from and against any and all
liabilities and costs (including, without limitation,
reasonable attorneys' fees) which the Agent, the Issuing Bank
or such Bank may incur or be subject to as a consequence,
direct or indirect, of (a) the issuance of any Letter of
Credit, other than as a result of such Person's gross
negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, or (b) the
failure of the Issuing Bank to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de
33 SIDLEY XXXXXX XXXXX & XXXX
xxxx or de facto Governmental Authority (all such acts or
omissions herein called "Governmental Acts").
(ii) As among the Company (and any other L/C
Account Party), the Banks, the Agent and the Issuing Bank, the
Company (and any L/C Account Party) assume all risks of the
acts and omissions of, or misuse of such Letter of Credit by,
the beneficiary of any Letters of Credit. In furtherance and
not in limitation of the foregoing, subject to the provisions
of the L/C Request and the laws and/or other rules to which a
Letter of Credit is subject, none of the Agent, the Issuing
Bank, or any Bank shall be responsible (in the absence of
gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of
competent jurisdiction) for, and the rights and remedies of
the Agent, the Issuing Bank or any Bank against the Company or
any of its Subsidiaries shall not be impaired by: (a) the
form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit
for so long as the documentation appears on its face to be
valid, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (b) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason (for so long as such
instrument appears on its face to be valid); (c) failure of
the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of
Credit; (d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, facsimile,
or other similar form of teletransmission or otherwise; (e)
errors in interpretation of technical trade terms or any other
terms and conditions of the Letter of Credit; (f) any loss or
delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit
or of the proceeds thereof; (g) the misapplication by the
beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; (h) the imposition of law
or practice other than that chosen in the Letter of Credit or
L/C Request at the time of issuance; and (i) any consequences
arising from causes beyond the control of the Agent, the
Issuing Bank and the Banks, including, without limitation, any
Governmental Acts. None of the above shall affect, impair, or
prevent the vesting of the Issuing Bank's rights or powers
under this Section 2.17(J).
(iii) The Issuing Bank is expressly authorized and
directed to honor any request for payment which is made under
and in compliance with the terms and conditions of a Letter of
Credit without regard to, and without any duty on the Issuing
Bank's part to inquire into, the existence of any disputes or
controversies between the Company or any other L/C Account
Party, any beneficiary or any other Person or the rights,
duties or liabilities of any of them. If a Letter of Credit
shall have been requested by the Company for the accommodation
of a third party, any instruction, consent, approval and other
action or inaction of such third party with respect to a
Letter of Credit or transactions thereunder shall be deemed
34 SIDLEY XXXXXX XXXXX & XXXX
to be the act or omission of the Company for all purposes
hereof, and the Issuing Bank shall be entitled to rely
thereon.
(iv) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Bank under or in
connection with the Letters of Credit, L/C Application or any
related certificates shall not, in the absence of gross
negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, put the Issuing
Bank, the Agent or any Bank under any resulting liability to
the Company and/or any other L/C Account Party or relieve the
Company or any such L/C Account Party of any of its
obligations hereunder to any such Person.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Company contained in this
Section 2.17(J) shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
(K) Power of Attorney. The Company irrevocably appoints
the Issuing Bank as attorney in fact for the Company or any other L/C
Account Party to execute, file, register or record, in the name of the
Company or such L/C Account Party, any document or instrument of any
kind or description including, without limitation thereto, assignments
and endorsements, which come into the possession of the Issuing Bank
under a Letter of Credit or upon instructions of the Company or such
L/C Account Party, and to perform such other acts in connection with
any Letter of Credit as the Company or such L/C Account Party may be
required to perform hereunder, upon failure of the Company or such L/C
Account Party to so act.
(L) Applicable Law. Except as otherwise expressly
provided herein, in any L/C Request or in any Letter of Credit, the
Issuing Bank may rely for interpretation of a Letter of Credit or
instructions or documents related thereto or issued under or in
purported compliance with the foregoing, on the Uniform Customs and
Practice for Documentary Credits, ICC Publication No. 500 or the
International Standby Practices 1998, whichever is stated as the
governing rules in the Letter of Credit.
(M) Waiver of Discrepancies and Binding Terms on Issuing
Bank's Decisions. The Company agrees that the Issuing Bank's decision,
in accordance with standard banking practice, absent gross negligence
or willful misconduct, of whether the documents presented appear on
their face to comply with the terms and conditions of the Letter of
Credit shall be conclusive and binding on the Company and any other L/C
Account Party. If the Issuing Bank determines that any draft or
document does not appear to comply with the terms and conditions of the
Letter of Credit, the Issuing Bank using its sole judgment may approach
the Company (and, if appropriate, any other L/C Account Party) for a
waiver of the discrepancy or discrepancies, but shall not be obligated
to do so. If the Issuing Bank determines that a presentation appears to
comply with the terms and conditions of the Letter of Credit, the
Issuing Bank is authorized to pay the amount thereof regardless of
receipt of notice from the Company, any other L/C
35 SIDLEY XXXXXX XXXXX & XXXX
Account Party or another person that any required document is forged or
materially fraudulent.
ARTICLE III: CONDITIONS
SECTION 3.01. Effectiveness of the Original Credit Agreement.
The Borrowers hereby confirm that on or prior to the Original Closing Date each
of the conditions set forth in Section 3.01 of the Original Credit Agreement
were satisfied (or waived in accordance with Section 9.05 of the Original Credit
Agreement).
SECTION 3.02. All Borrowings. The obligation of (i) any Bank
to make a Loan on the occasion of any Borrowing, (ii) the Swingline Lender to
make any Swingline Loan hereunder or (iii) the Issuing Bank to issue any Letter
of Credit hereunder, is subject to the satisfaction of the following conditions:
(A) receipt by (i) the Agent of a Notice of Borrowing as
required by Section 2.02, (ii) the Swingline Lender of a Notice of
Swingline Borrowing or (iii) the Issuing Bank of a L/C Request, as
applicable, as required by Section 2.02; provided, that until all
Litigation Liabilities have been substantially reserved for or
substantially discharged and paid (to the reasonable satisfaction of
the Administrative Agent), any such Notice of Borrowing, Notice of
Swingline Borrowing or L/C Request submitted by any Borrower after any
Litigation Development has occurred (other than in connection with a
Refunding Borrowing) shall be accompanied by a Pro Forma Compliance
Certificate to the extent that one has not been previously been
prepared and delivered to the Banks in connection with such Litigation
Development; provided, however, that once the Company has delivered a
Pro Forma Compliance Certificate in connection with any Litigation
Development (including the Pro Forma Compliance Certificate delivered
on the Closing Date), the Company may continue to rely on such Pro
Forma Compliance Certificate unless and until a subsequent Litigation
Liability or Litigation Charge arises that increases the aggregate
amount of Litigation Liabilities or Litigation Charges from those
reflected in such Pro Forma Compliance Certificate;
(B) the fact that, immediately after such Borrowing,
Swingline Loan or Letter of Credit issuance, (i) the aggregate
outstanding Dollar Amount of the Loans and L/C Obligations will not
exceed the Aggregate Commitment, (ii) the aggregate outstanding Dollar
Amount of Eurocurrency Loans denominated in euro will not exceed
$750,000,000, (iii) in the case of each borrowing of a Swingline Loan,
the aggregate outstanding Dollar Amount of all Swingline Loans will not
exceed the Swingline Amount and (iv) in the case of each Letter of
Credit issuance, the aggregate outstanding amount of all L/C
Obligations will not exceed $100,000,000;
(C) the fact that, immediately before and after such
Borrowing, Swingline Loan or Letter of Credit issuance, (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, any
Swingline Loan or Letter of Credit issuance, as applicable, no Default
shall have occurred and be continuing; and
36 SIDLEY XXXXXX XXXXX & XXXX
(D) the fact that the representations and warranties of
the Borrowers contained in this Agreement (except, in the case of a
Refunding Borrowing, the representations and warranties set forth in
Sections 4.04(C), 4.05, 4.06 (other than clause (i) thereof), 4.07,
4.10 and 4.11) shall be true in all material respects on and as of the
date of such Borrowing, Swingline Loan or Letter of Credit issuance, as
applicable.
Each Borrowing, Swingline Loan or Letter of Credit issuance
made hereunder shall be deemed to be a representation and warranty by the
Borrower requesting such Borrowing, Swingline Loan or Letter of Credit issuance
on the date of such Borrowing, Swingline Loan or Letter of Credit issuance, as
applicable, as to the facts specified in clauses (B), (C) and (D) of this
Section.
SECTION 3.03. Effectiveness of this Agreement. The Banks shall
not be required to make any Loans, the Swingline Lender shall not be required to
make any Swingline Loans, the Issuing Bank shall not be required to issue any
Letters of Credit hereunder and this Agreement shall not become effective,
unless the Agent shall have received each of the following (with sufficient
copies for the Banks):
(A) duly executed signature pages to this Agreement from
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) written opinions of each of (i) Xxxx X. Xxxxxxx,
Senior Vice President-General Counsel of the Company, substantially in
the form of Exhibit B-1 hereto and (ii) Linklaters Xxxxxx, Luxembourg
counsel of Masco Europe, substantially in the form of Exhibit B-2
hereto, and, in each case, covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may
reasonably request;
(C) receipt by the Agent of a certificate of a duly
authorized officer of the Company, dated the Closing Date, certifying
that (i) as of such date no Default shall have occurred and be
continuing, (ii) as of such date the representations and warranties of
the Company contained in this Agreement are true in all material
respects and (iii) as of such date there has been no Material Adverse
Change;
(D) receipt by the Agent of all documents it reasonably
requested relating to the existence of the Company and Masco Europe,
the corporate authority for and the validity of this Agreement
(including the Letter of Credit facility evidenced hereby) and any
other matters relevant thereto, all in form and substance satisfactory
to the Agent;
(E) receipt by the Agent of a Pro Forma Compliance
Certificate prepared by the chief financial officer or treasurer of the
Company setting forth in reasonable detail the calculations required to
establish whether, after giving effect to the maximum anticipated
Litigation Liability and Litigation Charge as of the Closing Date and
the incurrence of any indebtedness or the issuance of any equity in
connection therewith, the Company is in compliance with the financial
covenants set forth in Sections 5.02 through 5.04 on a pro forma basis
as if such Litigation Development (and any related
37 SIDLEY XXXXXX XXXXX & XXXX
indebtedness or equity issuance) arose on the last day of the fiscal
quarter ending June 30, 2002; and
(F) such other documents, instruments and agreements as
the Agent may reasonably request.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company and
its Domestic Subsidiaries and Masco Europe are duly organized, validly existing
and in good standing under the laws of their respective jurisdiction of
formation, and have all requisite 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; Filing; No Immunity.
(A) The execution, delivery and performance by the
Company and Masco Europe of this Agreement and the Notes, are within
the Company's and Masco Europe's respective 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 or other constitutive documents of the Company or Masco Europe
or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or Masco Europe or result in the
creation or imposition of any Lien on any asset of the Company or any
of its Subsidiaries.
(B) To ensure the enforceability or admissibility in
evidence of this Agreement and each Note to which Masco Europe is a
party in Luxembourg, it is not necessary that this Agreement or any
such Note to which Masco Europe is a party or any other document be
filed or recorded with any court or other authority in Luxembourg or
that any stamp or similar tax be paid to or in respect of this
Agreement or any such Note. The qualification by any Bank or the Agent
for admission to do business under the laws of Luxembourg does not
constitute a condition to, and the failure to so qualify does not
affect, the exercise by any Bank or the Agent of any right, privilege,
or remedy afforded to any Bank or the Agent in connection with this
Agreement or any Note to which such Masco Europe is a party or the
enforcement of any such right, privilege, or remedy against Masco
Europe. The performance by any Bank or the Agent of any action required
or permitted under this Agreement or any Note will not (i) violate any
law or regulation of Luxembourg or any political subdivision thereof,
(ii) result in any tax or other monetary liability to such party
pursuant to the laws of Luxembourg or political subdivision or taxing
authority thereof (other than taxes on the overall net income of such
Bank or its Applicable Lending Office or franchise or similar taxes
imposed by Luxembourg to the extent such Bank or its Applicable Lending
Office shall be situated in
38 SIDLEY XXXXXX XXXXX & XXXX
Luxembourg), or (iii) violate any rule or regulation of any federation
or organization or similar entity of which Luxembourg is a member,
except such violations or liabilities, or increases thereof which
individually or in the aggregate could not reasonably be expected to
have a material adverse effect on the business or financial position of
the Company and its Consolidated Subsidiaries, considered as a whole,
or which in any manner draws into question the validity of this
Agreement or the Notes.
(C) Neither Masco Europe nor any of its assets is
entitled to immunity from suit, execution, attachment or other legal
process. Masco Europe's execution and delivery of this Agreement
constitute, and the exercise of its rights and performance of and
compliance with its obligations under this Agreement will constitute,
private and commercial acts done and performed for private and
commercial purposes.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Company and Masco Europe, enforceable against
them 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, and the Notes when executed and delivered in
accordance with this Agreement will constitute valid and binding obligations of
the Company and Masco Europe enforceable against it in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. Financial Information.
(A) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 2001 and the related
consolidated statements of income and cash flows for the Fiscal Year
then ended, reported on by PricewaterhouseCoopers LLP and set forth in
the Company's 2001 Form 10-K, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of
the Company and its Consolidated Subsidiaries as of such date and the
consolidated results of their operations and their cash flows for such
Fiscal Year.
(B) The unaudited condensed consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of June 30, 2002 and
the related unaudited condensed statements of consolidated income and
consolidated cash flows for the three months then ended, set forth in
the Company's quarterly report for the fiscal quarter ended June 30,
2002 as filed with the Securities and Exchange Commission on Form 10-Q,
a copy of which has been delivered to each of the Banks, fairly
present, on a basis consistent with the financial statements referred
to in subsection (A) of this Section, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for
such three-month period (subject to normal year-end adjustments).
(C) No Material Adverse Change has occurred or is
continuing.
39 SIDLEY XXXXXX XXXXX & XXXX
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which, in the reasonable
opinion of the Company, has resulted in or is likely to result in a Material
Adverse Change or which in any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group (i) has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and (ii) is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group has (x) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (y) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue
Code, in each case securing an amount greater than $10,000,000 or (z) incurred
any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA which could materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.07. Environmental Matters. In the ordinary course
of its business, the Company conducts appropriate reviews of the effect of
Environmental Laws on the business, operations and properties of the Company and
its Subsidiaries, in the course of which it identifies and evaluates pertinent
liabilities and costs (including, without limitation, capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned or for the lawful operation of its current facilities, required
constraints or changes in operating activities, and evaluation of liabilities to
third parties, including employees, together with pertinent costs and expenses).
On the basis of this review, the Company has reasonably concluded that
Environmental Laws are not likely to have a material adverse effect on the
business, financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns
of the Company and its Subsidiaries have been examined and closed through the
Fiscal Year ended December 31, 1998. The Company and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes shown as due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary, except such taxes, if any, as are being contested in good
faith and as to which, in the opinion of the Company, adequate reserves have
been provided. The charges, accruals and reserves on the books of the Company
and its Subsidiaries in respect of taxes or other like governmental charges are,
in the opinion of the Company, adequate.
SECTION 4.09. Not an Investment Company. The Company is not
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
40 SIDLEY XXXXXX XXXXX & XXXX
SECTION 4.10. Compliance with Laws. The Company complies, and
has caused each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where (i) the necessity
of compliance therewith is contested in good faith by appropriate proceedings,
(ii) no officer of the Company is aware that the Company or the relevant
Subsidiary has failed to comply therewith or (iii) the Company has reasonably
concluded that failure to comply is not likely to have a material adverse effect
on the business, financial position or results of operations of the Company and
its Consolidated Subsidiaries, taken as a whole.
SECTION 4.11. Foreign Employee Benefit Matters. (a) Each
Material Employee Benefit Plan is in compliance with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan; (b) there are no deficiencies in contributions,
payments or other funding required of the Company and its Subsidiaries by
applicable law or the governing plan documents with respect to any governmental
or statutory Foreign Pension Plan, and the present value of the aggregate
accumulated benefit obligations under all other Foreign Pension Plans does not
exceed the current fair market value of the assets held in the trusts for such
Plans; (c) with respect to any Foreign Employee Benefit Plan maintained or
contributed to by any member of the ERISA Group (other than a Foreign Pension
Plan), reasonable reserves have been established in accordance with prudent
business practice or where required by ordinary accounting practices in the
jurisdiction in which such Plan is maintained; and (d) there are no actions,
suits or claims pending or, to the knowledge of the Company and its
Subsidiaries, threatened against the Company or any Subsidiary of it or any
member of the ERISA Group with respect to any Foreign Employee Benefit Plan,
except in each case where such failure to comply, deficiencies, excess
obligations, absence of reserves, or actions, suits or claims would not
individually or in the aggregate have a material adverse effect on the business,
consolidated financial position or consolidated results of operations of the
Company and its Consolidated Subsidiaries, considered as a whole.
ARTICLE V: COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Loan or any Letter of
Credit or otherwise hereunder remains unpaid:
SECTION 5.01. Information. The Company will deliver to each
of the Banks:
(A) as soon as available and in any event within 95 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income and cash flows
for such Fiscal Year, setting forth in each case in comparative form
the corresponding figures for the previous Fiscal Year, all reported on
by PricewaterhouseCoopers LLP or other independent public accountants
of nationally recognized standing, whose report shall be without
material qualification;
(B) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each Fiscal Year,
a condensed consolidated balance sheet of
41 SIDLEY XXXXXX XXXXX & XXXX
the Company and its Consolidated Subsidiaries as of the end of such
quarter, the related condensed consolidated statement of income for
such quarter and the related condensed consolidated statements of
income and cash flows for the portion of such Fiscal Year ended at the
end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail and certified, to the best of his
knowledge (subject to normal year-end adjustments), as to fairness of
presentation, and consistency with generally accepted accounting
principles (except for changes concurred in by the Company's
independent public accountants) by the chief financial officer or the
treasurer of the Company;
(C) simultaneously with (i) the delivery of each set of
financial statements referred to in clauses (A) and (B) above, (ii) on
or prior to the date on which any Litigation Charge is taken and (iii)
within five (5) Domestic Business Days following the occurrence of any
event which gives rise to any Litigation Liability, a certificate of
the chief financial officer or the treasurer of the Company (x) setting
forth in reasonable detail the calculations required to establish
whether the Company was in compliance with the requirements of Sections
5.02 to 5.04, inclusive, on the date of such financial statements, (y)
stating, to the best of his or her knowledge, whether any Default
exists on the date of such certificate and (z) if any Default then
exists, setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto; provided,
however, that in the case of a certificate delivered pursuant to the
immediately preceding clause (ii) or (iii), such covenants shall be
calculated on a pro forma basis as if the Litigation Liability or the
obligation to take the Litigation Charge, as the case may be, arose on
the last day of the immediately preceding fiscal quarter for which
unaudited or audited financial statements are available (any
certificate delivered in connection with clause (ii) or (iii) above
being referred to as a "Pro Forma Compliance Certificate"); provided,
further, however, that once the Company has delivered a Pro Forma
Compliance Certificate in connection with any Litigation Development
(including the Pro Forma Compliance Certificate delivered on the
Closing Date), the Company may continue to rely on such Pro Forma
Compliance Certificate unless and until a subsequent Litigation
Liability or Litigation Charge arises that increases the aggregate
amount of Litigation Liabilities or Litigation Charges from those
reflected in such Pro Forma Compliance Certificate;
(D) within 15 days after any officer of the Company
becomes aware of the existence of any Default, unless such Default
shall have been cured before the end of such 15 day period, a
certificate of the chief financial officer or the treasurer of the
Company setting forth the details of such Default and the action which
the Company is taking or proposes to take with respect thereto;
(E) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports
and proxy statements so mailed;
(F) promptly upon the filing thereof, copies of all
reports on Forms 10-K, 10-Q and 8-K and similar regular and periodic
reports which the Company shall have filed with the Securities and
Exchange Commission;
42 SIDLEY XXXXXX XXXXX & XXXX
(G) if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice, (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer
or the treasurer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member
of the ERISA Group is required or proposes to take; 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 clauses (i) through (vii) above of which officers
of the Company have obtained knowledge and have not previously reported
under this clause (G) exceeds $25,000,000;
(H) promptly and in any event not more than 5 days after
any officer of the Company becomes aware of the occurrence of any event
which would cause the representations and warranties set forth in
Section 4.11 to be in breach as of such date, a certificate of the
chief financial officer or treasurer of the Company setting forth
details as to such occurrence and action, if any, which the Company or
applicable Subsidiary of the Company is required or proposes to take;
(I) immediately after any officer of the Company obtains
knowledge of a change in the rating of the Company's outstanding senior
unsecured long-term debt securities by Xxxxx'x or S&P, a certificate of
the chief financial officer or treasurer of the Company setting forth
the details thereof;
(J) immediately after any officer of the Company obtains
knowledge of any of the following events in connection with the
Disclosed Litigation, a certificate of the chief financial officer or
treasurer of the Company setting forth the details thereof:
(i) any trial court adjudication of liability in
a nationwide class;
(ii) the execution of a settlement agreement with
respect to settlement of any class action;
43 SIDLEY XXXXXX XXXXX & XXXX
(iii) any verdict or judgment awarding punitive
damages;
(iv) any adverse trial or appellate court
decision relating to any claim for insurance coverage;
(v) any trial court adjudication of liability in
any statewide class action; or
(vi) any appellate confirmation of any class
certification order; and
(K) from time to time such additional information
regarding the financial position or business of the Company as the
Agent, at the request of any Bank, or the Issuing Bank may reasonably
request.
SECTION 5.02. Financial Covenants.
(A) Minimum Consolidated Net Worth. At no time will
Consolidated Net Worth be less than Minimum Consolidated Net Worth.
"Minimum Consolidated Net Worth" means $2,650,000,000, as such amount
has been adjusted under the Original Credit Agreement at the end of
each Fiscal Quarter commencing with the Fiscal Quarter ending on March
31, 2001 and continuing through the Fiscal Quarter Ending on June 30,
2002, and shall continue to be adjusted at the end of each Fiscal
Quarter commencing with the Fiscal Quarter ending September 30, 2002,
as follows:
(i) increased by 33% 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 33% of such
Consolidated Net Loss shall be applied first to reduce Minimum
Consolidated Net Worth to the extent of offsetting prior
increases (if any) in Minimum Consolidated Net Worth made
pursuant to this clause (A) during the same Fiscal Year and
second to reduce (but not below zero) any future increase in
Minimum Consolidated Net Worth that would otherwise be made
pursuant to this clause (i) during the same Fiscal Year; and
(ii) increased by an amount equal to 50% of all
increases in Consolidated Net Worth during such Fiscal Quarter
attributable to sales or issuances of the Company's Equity
Securities; provided that an amount up to 50% of all decreases
in Consolidated Net Worth during such Fiscal Quarter
attributable to purchases or other retirements of the
Company's Equity Securities shall be applied first to offset
any increase in Minimum Consolidated Net Worth that would
otherwise be made pursuant to this clause (ii) at the end of
such Fiscal Quarter, second to reduce Minimum Consolidated Net
Worth to the extent of offsetting prior increases (if any) in
Minimum Consolidated Net Worth made pursuant to this clause
(ii) and third to reduce (but not below zero) any future
increase in Minimum Consolidated Net Worth that would
otherwise be made pursuant to this clause (ii).
44 SIDLEY XXXXXX XXXXX & XXXX
(B) Maximum Debt to Capitalization. At no time will the
ratio of (i) Consolidated Debt to (ii) the sum of Consolidated Debt and
Consolidated Adjusted Net Worth exceed 55%; provided, however, that for
the purposes of the limitations provided in, and computations under,
this Section 5.02(B), "Debt" shall not include any Debt that is exempt
from the incurrence tests in Sections 5.03(A) and (B) as a result of
the application of Section 5.03(C) or (D).
The foregoing covenants will be tested on a consolidated basis (a) as of the end
of each Fiscal Quarter, (b) on or prior to the date on which any Litigation
Charge is taken and (c) within five (5) Domestic Business Days following the
occurrence of any event which gives rise to any Litigation Liability; provided,
however, that in the case of the immediately preceding clauses (b) and (c), such
financial covenants shall be calculated on a pro forma basis as if the
Litigation Liability or the obligation to take the Litigation Charge arose on
the last day of the immediately preceding fiscal quarter for which unaudited or
audited financial statements are available.
SECTION 5.03. Limitations on Debt.
(A) The Company will not at any time, and will not suffer
or permit any Consolidated Subsidiary at any time to, create, incur,
issue, guarantee or assume any Debt if, immediately after giving effect
thereto, the ratio of (i) Consolidated Debt to (ii) the sum of
Consolidated Debt and Consolidated Adjusted Net Worth would exceed 55%.
(B) The Company will not at any time suffer or permit any
Consolidated Subsidiary to create, incur, issue, guarantee or assume
any Debt if, immediately after giving effect thereto, the aggregate
outstanding amount (determined at that time) of Debt of all
Consolidated Subsidiaries (other than Debt owed to the Company or one
or more other Consolidated Subsidiaries) would exceed 30% of
Consolidated Net Worth.
(C) Subsections (A) and (B) above shall not prevent (i)
the Company from creating, incurring, issuing, guaranteeing or assuming
Debt for the purpose of extending, renewing or Refunding (as such term
is defined in this subsection) an equal or greater principal amount of
Debt then outstanding of the Company or of Debt then outstanding of a
Consolidated Subsidiary, or (ii) a Consolidated Subsidiary from
creating, incurring, issuing, guaranteeing or assuming Debt for the
purpose of extending, renewing or Refunding an equal or greater
principal amount of Debt then outstanding of such Consolidated
Subsidiary, or (iii) the creation, incurrence, issuance, guarantee or
assumption of Debt owed to or owned by the Company or a Consolidated
Subsidiary; provided, that in no event shall the aggregate principal
amount of any such extending, renewing or Refunding Debt under clause
(i) or (ii) above exceed the aggregate principal amount of the Debt
being extended, renewed or Refunded. 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 Company delivers to the Agent
written notice stating that the purpose of such Debt is to refund
outstanding Debt and specifying the Debt to be refunded, (ii) the
proceeds of such refunding Debt are held in the form of cash or High
Quality Investments (free of any Lien except a Lien securing the
specified Debt to be refunded) until such
45 SIDLEY XXXXXX XXXXX & XXXX
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, Sections 5.03(A) and (B), (i) when an entity
becomes a Consolidated Subsidiary it shall be deemed to create at such
time all the Debt it has outstanding immediately after such time
(provided that, if after giving effect to this clause (i), the
aggregate outstanding amount of Debt of all Consolidated Subsidiaries
(other than Debt owed to the Company or one or more other Consolidated
Subsidiaries) would be greater than 30% but less than 60% of
Consolidated Net Worth, this clause (i) shall not apply at the time
such entity becomes a Consolidated Subsidiary, but such entity shall be
deemed to create on the 15th day after it becomes a Consolidated
Subsidiary all the Debt it has outstanding on such 15th day), (ii) the
disposition (other than to a Consolidated Subsidiary or the Company) by
the Company or a Subsidiary of capital stock of any Consolidated
Subsidiary which holds Debt of the Company or any other Consolidated
Subsidiary so that the Consolidated Subsidiary ceases to be a
Consolidated Subsidiary after such disposition shall be deemed the
creation of such Debt, and (iii) the disposition (other than to a
Consolidated Subsidiary or the Company) of Debt of the Company or any
Consolidated Subsidiary by any Consolidated Subsidiary or the Company
shall be deemed the creation of such Debt.
SECTION 5.04. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(A) Liens existing on June 30, 2000 securing Debt
outstanding on June 30, 2000 in an aggregate principal amount not
exceeding $50,000,000;
(B) any Lien existing on any asset of any entity at the
time such entity becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(C) any Lien on any asset securing Debt incurred or
assumed solely for the purpose of financing all or any part of the cost
of acquiring such asset (or acquiring a corporation or other entity
which owned such asset); provided that such Lien attaches to such asset
concurrently with or within 90 days after such acquisition;
(D) any Lien on any asset of any entity existing at the
time such entity is merged or consolidated with or into the Company or
a such Consolidated Subsidiary and not created in contemplation of such
event;
(E) any Lien existing on any asset prior to the
acquisition thereof by the Company or a Consolidated Subsidiary and not
created in contemplation of such acquisition;
(F) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section; provided that such Debt is
not increased and is not secured by any additional assets;
46 SIDLEY XXXXXX XXXXX & XXXX
(G) any Lien in favor of the holder of indebtedness (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 and no Default under Section 6.01(J) shall have occurred
and is continuing in connection therewith;
(H) Liens incidental to the normal conduct of its
business or the ownership of its assets which (i) do not secure Debt,
(ii) do not secure any obligation in an amount exceeding $100,000,000
and (iii) do not in the aggregate materially detract from the value of
the assets of the Company and its Consolidated Subsidiaries taken as a
whole or in the aggregate materially impair the use thereof in the
operation of the business of the Company and its Consolidated
Subsidiaries taken as a whole; and
(I) Liens securing Debt which are not otherwise permitted
by the foregoing clauses of this Section; provided that (i) the
aggregate outstanding principal amount of Debt secured by all such
Liens on current assets shall not at any time exceed 20% of
Consolidated Current Assets and (ii) the aggregate outstanding
principal amount of Debt secured by all such Liens (including Liens
referred to in clause (i) of this proviso) shall not at any time exceed
the sum of (A) 20% of Consolidated Current Assets plus (B) 3% of
Consolidated Net Worth.
SECTION 5.05. Consolidations, Mergers and Sale of Assets.
(A) Neither the Company nor Masco Europe will directly or
indirectly sell, lease, transfer or otherwise dispose of all or
substantially all of its assets, or merge or consolidate with any other
Person, or acquire any other Person through purchase of assets or
capital stock, unless either (i) the Company or Masco Europe, as
applicable, shall be the continuing or surviving corporation or (ii)
the successor or acquiring corporation (if other than the Company or
Masco Europe, as applicable) shall be a corporation organized under the
laws of (x) one of the States of the United States of America in the
case of a merger or consolidation of the Company, or (y) the Grand
Duchy of Luxembourg in the case of a merger or consolidation of Masco
Europe, and shall assume, by a writing satisfactory in form and
substance to the Required Banks, all of the obligations of the Company
or Masco Europe, as applicable, under this Agreement and the Notes,
including all covenants herein and therein contained, in which case
such successor or acquiring corporation shall succeed to and be
substituted for the Company or Masco Europe, as applicable, with the
same effect as if it had been named herein as a party hereto.
(B) No disposition of assets, merger, consolidation or
acquisition referred to in subsection (A) of this Section shall be
permitted if, immediately after giving effect thereto, the Company
would be in Default under any of the terms or provisions of this
Agreement.
SECTION 5.06. Compliance with Laws. The Company will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation,
47 SIDLEY XXXXXX XXXXX & XXXX
Environmental Laws and ERISA and the rules and regulations thereunder) except
where (i) the necessity of compliance therewith is contested in good faith by
appropriate proceedings, (ii) no officer of the Company is aware that the
Company or any Subsidiary has failed to comply therewith or (iii) the Company
has reasonably concluded that failure to comply is not likely to have a material
adverse effect on the business, financial position or results of operations the
Company and its Consolidated Subsidiaries, taken as a whole.
SECTION 5.07. Use of Proceeds. The Borrowers shall use the
proceeds of the Loans to provide funds for general corporate purposes,
including, commercial paper liquidity, acquisitions, refinancing of Debt
(including, without limitation, Debt under the agreements described in Section
3.01(F)) and working capital purposes. None of the proceeds of the Loans made
under this Agreement will be used in violation of any applicable law or
regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System).
SECTION 5.08. Insurance. The Company and its Consolidated
Subsidiaries considered as a whole will maintain with financially sound and
reputable insurance companies insurance in such amounts and covering such risks
as is consistent with sound business practice, and the Company will furnish to
the Agent upon request full information as to the insurance carried; provided,
that the Company and its Subsidiaries may self-insure to the extent the Company
reasonably determines that such self insurance is consistent with prudent
business practice.
SECTION 5.09. Inspection. The Company will, and will cause
each Subsidiary to, permit the Agent, by its representatives and agents, to
inspect any of the property, books and financial records of the Company and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Company and each Subsidiary, and to discuss the
affairs, finances and accounts of the Company and each Subsidiary with, and to
be advised as to the same by, their respective officers at such times and
intervals, having due regard for the ongoing business of the Company and its
Subsidiaries, as the Agent may reasonably request.
ARTICLE VI: DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(A) any Borrower shall fail to pay (i) when due any
principal of any Loan or (ii) within five days of the due date thereof,
any interest or fees payable under this Agreement;
(B) the Company shall fail to observe or perform any
covenant contained in Sections 5.02 to 5.05, inclusive;
(C) the Company or Masco Europe shall fail to observe or
perform any covenant or agreement contained in this Agreement (other
than those covered by clause (A) or (B) above) for 30 days after
written notice thereof has been given to the Company by the Agent at
the request of any Bank;
48 SIDLEY XXXXXX XXXXX & XXXX
(D) any representation, warranty, certification or
statement made by the Company or Masco Europe 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 Company or Masco Europe pursuant to the last sentence
of Section 3.02 as to the satisfaction of the condition of borrowing
set forth in clause (C)(i) of Section 3.02 shall have been incorrect
solely by reason of the existence of an Event of Default of which the
Company was not aware when such representation and warranty was deemed
to have been made and which was cured before or promptly after the
Company became aware thereof, then such representation and warranty
shall be deemed not to have been incorrect in any material respect;
(E) the Company or any of its Consolidated Subsidiaries
shall fail to make one or more payments in respect of any Material Debt
(other than Acquired Debt in an aggregate outstanding principal amount
not exceeding $75,000,000) when due or within any applicable grace
period, and such failure has not been waived;
(F) the Company or any Consolidated Subsidiary shall fail
to observe or perform any term, covenant or agreement contained in (i)
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 $75,000,000) or (ii) the
364-Day Credit Agreement, or any other event or condition referred to
therein shall occur (including, without limitation, any "Default" or
"Termination Event" as defined therein), and the effect of all such
failures, events and conditions (each a "default") is to cause the
maturity of any Material Debt to be accelerated or to permit (any
applicable period of grace having expired and any required notice
having been given) the holder or holders of any Material Debt (or any
Person acting on their behalf) to accelerate the maturity thereof;
(G) the Company or any Significant Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property under any such law, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced
against it under any such law, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as
they become due, or a resolution shall be adopted by either the
shareholders or the board of directors of such corporation to authorize
any of the foregoing;
(H) an involuntary case or other proceeding shall be
commenced against the Company or any Significant Subsidiary in any
United States Federal court or other court of competent jurisdiction
seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other
49 SIDLEY XXXXXX XXXXX & XXXX
similar official of it or any substantial part of its property under
any such law, and in each case such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Significant Subsidiary as debtors under the federal bankruptcy laws
as now or hereafter in effect;
(I) any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $1,000,000 which it
shall have become liable to pay to the PBGC or to a Plan under Title IV
of ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Liabilities in excess of $50,000,000 (collectively,
a "Material Plan") shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $50,000,000
or; the institution by the PBGC or any similar foreign governmental
authority of proceedings to terminate a Foreign Pension Plan which
could reasonably be expected to subject the Company and its
Subsidiaries, taken as a whole, to liability in excess of $50,000,000
(a "Material Foreign Pension Plan"); or a foreign governmental
authority shall appoint or institute proceedings to appoint a trustee
to administer any Material Foreign Pension Plan in place of the
existing administrator; 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 $25,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 45 days; 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
Company; or Continuing Directors shall cease to constitute a majority
of the board of directors of the Company; or the Company shall cease to
be (directly or through its wholly-owned Subsidiaries) the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 promulgated by the
Securities and Exchange Commission under the Act) directly or
indirectly of at least 100% of the voting power of the outstanding
capital stock of Masco Europe ordinarily having the right to vote at an
election of directors;
50 SIDLEY XXXXXX XXXXX & XXXX
then, and in every such event, the Agent shall if requested by the Required
Banks, (i) by notice to the Borrowers, terminate the Commitments and the
obligation of the Issuing Bank to issue Letters of Credit and they shall
thereupon terminate, (ii) be entitled to request cash collateral for the L/C
Obligations pursuant to Section 2.17(G), (iii) by notice to the Borrowers,
declare the Loans and Reimbursement Obligations (together with accrued interest
thereon) to be, and the Loans and Reimbursement Obligations shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers;
provided that in the case of any of the Events of Default specified in clause
(G) or (H) above with respect to the Company or any Significant Subsidiary,
without any notice to any Borrower or any other act by the Agent or the Banks,
the Commitments shall thereupon terminate and the Loans and Reimbursement
Obligations (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 Borrowers.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Company under Section 6.01(C) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII: THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Bank One shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Agent, and Bank
One and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary or affiliate
of the Company as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable (i) to the Banks
for any action taken or not taken by such Person in connection herewith with the
consent or at the request of the Required Banks or all Banks, if applicable, or
(ii) to the Banks or any Borrower for any action taken or not taken by such
Person in the absence of such Person's own gross negligence or willful
misconduct. Neither the Agent, the Arranger nor any of their directors,
officers, agents or employees shall be
51 SIDLEY XXXXXX XXXXX & XXXX
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrowers; (iii) the satisfaction of any
condition specified in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Borrowers. Upon any
such resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $250,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's and Arranger's Fee. The Company shall
pay to each of the Agent and the Arranger for their own account such fees as
agreed upon between the Company, the Agent and the Arranger and set forth in a
separate fee letter among the Agent, the Arranger and the Company.
SECTION 7.10. Agent, Arranger, Documentation Agents,
Syndication Agents. None of the Agent, the Arranger, any Documentation Agent or
any Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than
52 SIDLEY XXXXXX XXXXX & XXXX
those applicable to all Banks as such. Without limiting the foregoing, none of
such Banks or the Agent shall have or be deemed to have a fiduciary relationship
with any other Bank. Each Bank hereby makes the same acknowledgments with
respect to such Banks as it makes with respect to the Agent in Section 7.07.
ARTICLE VIII: CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Eurocurrency Borrowing or Swingline Loan, as applicable:
(A) the Agent or the Swingline Lender determines that
deposits in the applicable Syndicated Currency (in the applicable
amounts) or Agreed Currency, respectively, are not being offered in the
relevant market for such Interest Period, or
(B) Banks having more than 50% of the aggregate amount of
the Commitments advise the Agent that the Eurocurrency Reference Rate,
as determined by the Agent, will not adequately and fairly reflect the
cost to such Banks of funding their Eurocurrency Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, (x) the obligations of (i) the Banks to
make, continue or convert Eurocurrency Loans in such Syndicated Currency or (ii)
the Swingline Lender to make, continue or convert Swingline Loans in such Agreed
Currency, as applicable, shall be suspended, and (y) if the Syndicated Currency
or Agreed Currency is Dollars, each affected Loan shall be converted into a
Floating Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the relevant Borrower notifies the Agent at least two
Domestic Business Days before the date of any such Eurocurrency Borrowing for
which a Notice of Borrowing, or any such Swingline Loan for which a Notice of
Swingline Loan, has previously been given that it elects not to borrow on such
date, such Borrowing shall instead be made as a Floating Rate Borrowing.
SECTION 8.02. Illegality. If, after the Closing Date, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Eurocurrency Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Eurocurrency Lending Office) to honor its
binding legal obligation hereunder to make, maintain or fund its Eurocurrency
Loans in any Syndicated Currency or any Swingline Loan (other than a Swingline
Loan in Dollars to the Company) to any Borrower and such Bank shall so notify
the Agent, the Agent shall forthwith give notice thereof to the other Banks and
the Borrowers, whereupon until such Bank notifies the Borrowers and the Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Eurocurrency Loans or such Swingline Loans in
such currency to such Borrower or to continue outstanding Loans to such Borrower
as Eurocurrency Loans or such Swingline Loans, as applicable, in such currency
shall be suspended. Before giving any notice to
53 SIDLEY XXXXXX XXXXX & XXXX
the Agent pursuant to this Section, such Bank shall designate a different
Eurocurrency Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given with respect to a
Borrower's Eurocurrency Loans denominated in Dollars, or Swingline Loans made to
Masco Europe denominated in Dollars, each such Loan of such Bank then
outstanding shall be converted to a Floating Rate Loan either (a) on the last
day of the then current Interest Period applicable to such Loan if such Bank may
lawfully continue to maintain and fund such Loan as a Eurocurrency Loan or
Swingline Loan, as applicable, in Dollars to such day or (b) immediately if such
Bank shall determine that it may not lawfully continue to maintain and fund such
loan as a Eurocurrency Loan or Swingline Loan, as applicable, in Dollars to such
day. Interest and principal on any such Floating Rate Loan shall be payable on
the same dates as, and on a pro rata basis with, the interest and principal
payable on the related Eurocurrency Loans of the other Banks. If such notice is
given with respect to a Borrower's Eurocurrency Loans denominated in euro or
Swingline Loan in any currency other than Dollars, such Borrower shall prepay
such Loan (i) on the last day of the then current Interest Period if such Bank
may lawfully continue to maintain and fund such Loan as a Eurocurrency Loan or
Swingline Loan, as applicable, in such currency to such day, or (ii) immediately
if such Bank shall determine that it may not lawfully continue to maintain and
fund such Loan as a Eurocurrency Loan or Swingline Loan, as applicable, in such
currency to such day.
SECTION 8.03. Increased Cost and Reduced Return.
(A) If on or after the Closing Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank
(or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency (a "Change in Law"):
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other charge with respect
to its Eurocurrency Loans, Swingline Loans (other than
Swingline Loans bearing a floating rate of interest made to
the Company), its Note, its Letters of Credit, or its
obligation to make Eurocurrency Loans or such Swingline Loans
or to issue any such Letters of Credit, or shall change the
basis of taxation of payments to any Bank (or its Applicable
Lending Office) of the principal of or interest on its
Eurocurrency Loans, such Swingline Loans, Reimbursement
Obligations or any other amounts due under this Agreement in
respect of its Eurocurrency Loans, such Swingline Loans, such
Letters of Credit or its obligation to make Eurocurrency Loans
or such Swingline Loans or issue such Letters of Credit
(except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office or
franchise or similar taxes imposed by the United States of
America or any State or political subdivision thereof or
imposed by the jurisdiction in which such Bank's principal
executive office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement
imposed by the Board of Governors of
54 SIDLEY XXXXXX XXXXX & XXXX
the Federal Reserve System, but excluding, with respect to any
Eurocurrency Loan, Swingline Loan (other than Swingline Loans
bearing a floating rate of interest made to the Company) or
Letter of Credit, any such requirement included in an
applicable Eurocurrency Reserve Percentage, associated cost
rate or other applicable reserve rate), special deposit,
insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on
any Bank (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the London
interbank market any other condition affecting its
Eurocurrency Loans, such Swingline Loans, its Note, its
Letters of Credit or its obligation to make Eurocurrency Loans
or such Swingline Loans or to issue such Letters of Credit;
and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any
Eurocurrency Loan or such Swingline Loan or of issuing any such Letters
of Credit, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or
under its Note with respect thereto or under any Letter of Credit
issued by such Bank, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the
Agent), the relevant Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost
or reduction; provided that, such Bank shall not be entitled to such
compensation for increased costs or reductions incurred more than 90
days prior to the date on which it actually demands (or notifies the
relevant Borrower that it will demand) such compensation, provided,
further that if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 90-day period referred to above
shall be extended to include the period of retroactive effect. If any
Bank demands compensation under this subsection (A) in connection with
a Eurocurrency Loan or a Swingline Loan, the relevant Borrower may at
any time, upon at least five Eurocurrency Business Days' prior notice
to such Bank through the Agent, prepay in full each then outstanding
affected Eurocurrency Loan or Swingline Loan, as applicable, of such
Bank, together with accrued interest thereon to the date of prepayment.
Concurrently with prepaying each such Eurocurrency Loan or Swingline
Loan, as applicable, of such Bank, such Borrower shall borrow a
Floating Rate Loan (or, if such Borrower shall so elect in its notice
of prepayment, a Eurocurrency Loan or Swingline Loan of another type)
in an equal principal amount from such Bank for an Interest Period
coinciding with the remaining term of the Interest Period applicable to
such Eurocurrency Loan or Swingline Loan, and such Bank shall make such
a Loan notwithstanding any provision herein to the contrary.
(B) If any Bank shall have determined that,
after the Closing Date, 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
55 SIDLEY XXXXXX XXXXX & XXXX
of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then
from time to time, within 15 days after demand by such Bank (with a
copy to the Agent), the Company shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such
reduction; provided that such Bank shall not be entitled to such
compensation for reductions incurred more than 90 days prior to the
date on which it actually demands (or notifies the Company that it will
demand) such compensation, provided, further that if the Change in Law
giving rise to such reductions in retroactive, then the 90-day period
referred to above shall be extended to include the period of
retroactive effect thereof.
(C) Each Bank will promptly notify the Borrowers
and the Agent of any event of which it has knowledge, occurring after
the Closing Date, 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, provided that the
determination of such amount or amounts is made on a reasonable basis.
In determining such amount, such Bank may use any reasonable averaging
and attribution methods.
SECTION 8.04. Market Disruption. Notwithstanding the
satisfaction of all conditions referred to in Article II and Article III with
respect to any Borrowing in any Agreed Currency or Syndicated Currency other
than Dollars, if there shall occur on or prior to the date of such Borrowing any
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the reasonable
opinion of the Swingline Lender, the Agent or the Required Banks, as applicable,
make it impracticable for the Loans comprising such Borrowing to be denominated
in the applicable Agreed Currency or Syndicated Currency, specified by the
relevant Borrower, then the Swingline Lender or the Agent as applicable, shall
forthwith give notice thereof to such Borrower and the Banks, and such Loans
shall not be denominated in such Agreed Currency or Syndicated Currency, but
shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Notice of Borrowing or Conversion/Continuation Notice, as the case
may be, as Floating Rate Loans, unless such Borrower notifies the Swingline
Lender or the Agent, as applicable, at least four Eurocurrency Business Days or
such shorter period of time agreed to by the Swingline Lender or the Agent, as
applicable, before such date that (i) it elects not to borrow on such date or
(ii) it elects to borrow on such date in a different Agreed Currency or
Syndicated Currency, as the case may be, in which the denomination of such Loans
would in the opinion of the Swingline Lender or the Agent and the Required
Banks, as applicable, be practicable and in an aggregate principal amount equal
to the Dollar Amount of the aggregate principal amount specified in the related
Notice of Borrowing or Conversion/Continuation Notice, as the case may be.
56 SIDLEY XXXXXX XXXXX & XXXX
SECTION 8.05. Substitute Loans. If (i) the obligation of any
Bank to make Eurocurrency Loans or Swingline Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03
and the Company shall, by at least five Eurocurrency Business Days' prior notice
to such Bank through the Agent, have elected that the provisions of this Section
8.05 shall apply to such Bank, then, unless and until such Bank notifies the
Company and the Agent that the circumstances giving rise to such suspension or
demand for compensation no longer apply, all Loans which would otherwise be made
by such Bank as (or continued as or converted to) Eurocurrency Loans or
Swingline Loans shall be made instead as Floating Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Eurocurrency
Loans of the other Banks, as applicable). If such Bank notifies the Company that
the circumstances giving rise to such suspension or demand for compensation no
longer exist, the principal amount of each such Floating Rate Loan made in
substitution of a Eurocurrency Loan shall be converted into a Eurocurrency Loan
on the first day of the next succeeding Interest Period applicable to the
related Eurocurrency Loans of the other Banks, and each such Floating Rate Loan
made in substitution of a Swingline Loan shall be converted into a Swingline
Loan on a date mutually agreeable to the Swingline Lender and the applicable
Borrower.
SECTION 8.06. Substitution of Bank. If (i) any Bank shall have
failed to fund its pro rata share of any Loan requested by any Borrower
hereunder which such Bank is obligated to fund under the terms of this Agreement
and which failure has not been cured, (ii) the obligation of any Bank to make
Eurocurrency Loans has been suspended pursuant to Section 8.02 or (iii) any Bank
has demanded compensation under Section 2.11(D) or Section 8.03 (any such Bank
affected by clauses (i), (ii) or (iii), herein an "Affected Bank"), the Company
shall have the right, with the assistance of the Agent, to seek a mutually
satisfactory substitute financial institution or institutions (which may be one
or more of the Banks) to purchase the Loans, Notes and L/C Interest and assume
the Commitment of such Bank in accordance with the provisions of Section 9.06(C)
and the Company may make written demand on such Affected Bank (with a copy to
the Agent) for the Affected Bank to assign, and such Affected Bank shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment and Assumption Agreements five (5) Eurocurrency Business Days after
the date of such demand, to one or more financial institutions which the Company
or the Agent, as the case may be, shall have engaged for such purpose
("Replacement Bank"), all of such Affected Bank's rights and obligations under
this Agreement and the other instruments, documents and agreements delivered or
executed from time to time in connection herewith (including, without
limitation, its Commitment and all Loans owing to it, all of its participation
interests in existing Swingline Loans and Letters of Credit and its obligation
to participate in additional Swingline Loans and Letters of Credit hereunder) in
accordance with Section 9.06(C). No such assignment by an Affected Bank shall be
required unless with respect to such assignment the Affected Bank shall have
concurrently received, in cash, all amounts due and owing to the Affected Bank
hereunder or under any instruments, documents and agreements delivered or
executed from time to time in connection herewith including, without limitation,
the aggregate outstanding principal amount of the Loans and L/C Obligations owed
to such Bank and any amounts in respect of Letters of Credit and Swingline Loans
in which such Bank participated, together with accrued interest and fees through
the date of such assignment, amounts payable under Sections 2.11(D), 2.12, 8.03
and 9.03 with respect to such Affected Bank and compensation payable under
Section 2.07.
57 SIDLEY XXXXXX XXXXX & XXXX
ARTICLE IX: MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile or similar writing) and shall be given to such party: (x) in
the case of any Borrower or the Agent, at its address or its facsimile or telex
number set forth 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 Borrowers. Each such notice, request or other communication
shall be effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section 9.01 and the appropriate answerback is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section 9.01; provided that notices to the Agent under Article II or Article
VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(A) The Company shall pay (i) all reasonable
out-of-pocket expenses of the Agent and the Arranger, including
reasonable fees and disbursements of counsel for the Agent and the
Arranger, in connection with the preparation of this Agreement, any
waiver or consent hereunder or any amendment hereof or any Default
hereunder and (ii) if an Event of Default occurs, all reasonable
out-of-pocket expenses incurred by the Agent, the Arranger and each
Bank, including reasonable fees and disbursements of counsel, in
connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. The
Company shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement or
the Notes.
(B) The Company agrees to indemnify and defend the Agent,
the Arranger and 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 this Agreement or any
Borrower's actual or proposed use of proceeds of Loans hereunder,
including but not limited to reasonable attorney's fees and settlement
costs; provided that (x) the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages or expenses that (i) do not relate
to or arise out of this Agreement or (ii) relate to the activities of
the parties hereto (other than the Company and its Affiliates) in
connection herewith and (y) neither the Agent, the Arranger nor any
Bank shall have the right to be indemnified hereunder for its own
58 SIDLEY XXXXXX XXXXX & XXXX
gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
(C) In the event that any action taken by any Bank or
Agent under this Agreement or any Note results in any tax or other
monetary liability to such party pursuant to the laws of Luxembourg or
political subdivision or taxing authority thereof (other than taxes on
the overall net income of such Bank or its Applicable Lending Office or
franchise or similar taxes imposed by Luxembourg to the extent such
Bank or its Applicable Lending Office shall be situated in Luxembourg),
Masco Europe hereby agrees to indemnify such Bank or the Agent, as the
case may be, against (x) any such tax or other monetary liability and
(y) any increase in any tax or other monetary liability which results
from such action by such Bank or the Agent and, to the extent Masco
Europe makes such indemnification, the incurrence of such liability by
the Agent or any Bank will not constitute a Default.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Loan held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of any
Borrower other than its indebtedness under the Loans. Each Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Loan, whether or not acquired pursuant to the
foregoing arrangements, may 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 Borrowers and the Required Banks
(and, if the rights or duties of the Agent, the Swingline Lender or the Issuing
Bank are affected thereby, by the Agent, the Swingline Lender or the Issuing
Bank, as the case may be, and no amendment of any provision of this Agreement
which subjects any Designated Lender to any additional obligation hereunder
shall be effective with respect to such Designated Lender without the written
consent of such Designated Lender or its Designating Lender), 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, (iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision
59 SIDLEY XXXXXX XXXXX & XXXX
of this Agreement, (v) amend the definition of Syndicated Currency, (vi) amend
Article X, or (vii) amend this Section 9.05.
SECTION 9.06. Successors and Assigns.
(A) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Banks, except as provided in Section
5.05.
(B) Any Bank may at any time grant to one or more banks
or other institutions, including a Designated Lender, (each a
"Participant") participating interests in its Commitment or any or all
of its Loans or L/C Interests. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon
notice to the Borrowers and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the
Borrowers and the Agent shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under
this Agreement. Any agreement pursuant to which any Bank may grant such
a participating interest shall provide that such Bank shall retain the
sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve
any amendment modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of
this Agreement described in clause (i), (ii) or (iii) of Section 9.05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article VIII with respect to
its participating interest. An assignment or other transfer which is
not permitted by subsection (C) or (D) below shall be given effect for
purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (B).
(C) Any Bank may at any time assign to one or more banks
or other institutions (each an "Assignee") all, or a proportionate part
of all, but not less than the lesser of (i) (x) $10,000,000 and in
multiples of $1,000,000 or (y) if the Assignee is a Bank or an
affiliate of such transferor Bank that is a financial institution,
$5,000,000 and in multiples of $1,000,000 (or, in either case, such
lesser amounts as shall be consented to by the Agent and the Company,
which consents will not unreasonably be withheld or delayed) or (ii)
the remaining amount of the assigning Bank's commitment (calculated as
at the date of such assignment) of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit D hereto executed by
such Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Company and the Agent (which consents will
not unreasonably be withheld or delayed); provided that (a) if an
Assignee is a Bank or an affiliate of such transferor Bank that is a
financial institution, no such consent of the Company or the Agent
shall be required so long as the Agent and the Company are provided
with prior written notice of the applicable assignment, and (b) if an
Event of Default has occurred and is continuing, no such consent of the
Company shall be required. Upon execution
60 SIDLEY XXXXXX XXXXX & XXXX
and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the consummation of any
assignment pursuant to this subsection (C), the transferor Bank, the
Agent and the Company shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In connection with any
such assignment, the transferor Bank shall pay to the Agent an
administrative fee for processing such assignment in the amount of
$4,000. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder for its
account, deliver to the Company and the Agent certification as to
exemption from deduction or withholding of any United States federal
income taxes in accordance with Section 2.14.
(D) Any Bank may at any time assign all or any portion of
its rights under this Agreement and its Loans, Notes, if any, and L/C
Interest to a Federal Reserve Bank. No such assignment shall release
the transferor Bank from its obligations hereunder.
(E) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under
Section 8.03 than such Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with
the Company's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a time when
the circumstances giving rise to such greater payment did not exist.
(F) Designated Lenders.
(i) Subject to the terms and conditions set
forth in this Section 9.06, any Bank may from time to time
elect to designate an Eligible Designee to provide all or any
part of the Loans to be made by such Bank or to participate in
Swingline Loans or Letters of Credit pursuant to this
Agreement; provided the designation of an Eligible Designee by
any Bank for purposes of this Section 9.06 shall be subject to
the approval of the Borrowers and the Agent (which consents
shall not be unreasonably withheld or delayed). Upon the
execution by the parties to each such designation of an
agreement in the form of Exhibit F hereto (a "Designation
Agreement") and the acceptance thereof by the Borrowers and
the Agent, the Eligible Designee shall become a Designated
Lender for purposes of this Agreement. The Designating Lender
shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Loans to be made, or
to participate in Swingline Loans and Letters of Credit, by
the Designating Lender pursuant to the terms of this Agreement
and the making of such Loans or portion thereof or the
participation in Swingline Loans on Letters of Credit shall
satisfy the obligation of the Designating Lender to the same
extent, and as if, such Loan was made, or Swingline Loan or
Letter of Credit was participated in, by the
61 SIDLEY XXXXXX XXXXX & XXXX
Designating Lender. As to any Loan made, or Swingline Loan or
Letter of Credit participated in, by it, each Designated
Lender shall have all the rights a Bank making such Loan or
participating in such Swingline Loan or Letter or Credit would
have under this Agreement and otherwise; provided, (x) that
all voting rights under this Agreement shall be exercised
solely by the Designating Lender and (y) each Designating
Lender shall remain solely responsible to the other parties
hereto for its obligations under this Agreement, including the
obligations of a Bank in respect of Loans made, or Swingline
Loan or Letter of Credit participated in, by its Designated
Lender. No additional Notes shall be required with respect to
Loans provided, or Swingline Loan or Letter of Credit
participated in, by a Designated Lender; provided, however, to
the extent any Designated Lender shall advance funds, the
Designating Lender shall be deemed to hold the Notes in its
possession as an agent for such Designated Lender to the
extent of the Loan funded, or Swingline Loan or Letter of
Credit participated in, by such Designated Lender; provided,
further, that any Designated Lender may request a Note in
accordance with Section 2.05(D). Such Designating Lender shall
act as administrative agent for its Designated Lender and give
and receive notices and communications hereunder. Any payments
for the account of any Designated Lender shall be paid to its
Designating Lender as administrative agent for such Designated
Lender and neither the Borrowers nor the Agent shall be
responsible for any Designating Lender's application of any
such payments. In addition, any Designated Lender may (i) with
notice to, but without the consent of the Borrowers and the
Agent, assign all or portions of its interests in any Loans or
participations in Swingline Loans or Letters of Credit to its
Designating Lender or to any financial institution consented
to by the Borrowers and the Agent providing liquidity and/or
credit facilities to or for the account of such Designated
Lender and (ii) subject to advising any such Person that such
information is to be treated as confidential in accordance
with such Person's customary practices for dealing with
confidential, non-public information, disclose on a
confidential basis any non-public information relating to its
Loans or participations in Swingline Loans or Letters of
Credit to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity
enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees
that it shall not institute against, or join any other person
in instituting against any Designated Lender any bankruptcy,
reorganization, arrangements, insolvency or liquidation
proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after the
payment in full of all outstanding senior indebtedness of any
Designated Lender; provided that the Designating Lender for
each Designated Lender hereby agrees to indemnify, save and
hold harmless each other party hereto for any loss, cost,
damage and expense arising out of their inability to institute
any such proceeding against such Designated Lender. This
Section 9.06(F) shall survive the termination of this
Agreement.
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
62 SIDLEY XXXXXX XXXXX & XXXX
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Confidentiality. Each Bank agrees that all
documentation and other information made available by the Borrowers to such
Bank, whether under the terms of this Agreement or any other loan agreement,
shall (except to the extent required by legal or governmental process or
otherwise by law, or if such documentation and other information is publicly
available or hereafter becomes publicly available other than by action of any
Bank, or was theretofore known to such Bank independent of any disclosure
thereto by the Borrowers) be held in the strictest confidence by such Bank and
used solely in connection with administration of loans from time to time
outstanding from such Bank to the Borrowers; provided that (i) such Bank may
disclose such documentation and other information to its affiliates or any other
bank or other institution to which such Bank sells or proposes to sell a
participation in its Loans hereunder, if such affiliate or other bank or
institution, prior to such disclosure, agrees for the benefit of the Borrowers
to comply with the provisions of this Section, (ii) such Bank may disclose the
provisions of this Agreement, the Notes and the Letters of Credit and the
amounts, maturities and interest rates of its Loans to any purchaser or
potential purchaser of such Bank's interest in any Loan or its L/C Interest 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. Illinois Law; Submission to Jurisdiction. This
Agreement and each Note shall be construed in accordance with and governed by
the laws of the State of Illinois. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois State court sitting in Chicago for
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each Borrower irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 9.11. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.12. WAIVER OF JURY TRIAL; SERVICE OF PROCESS.
(A) EACH OF THE BORROWERS, THE AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
63 SIDLEY XXXXXX XXXXX & XXXX
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT
LIMITATION, THE ISSUANCE OF ANY LETTER OF CREDIT).
(B) EACH BORROWER IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.01, AND MASCO
EUROPE HEREBY IRREVOCABLY APPOINTS THE COMPANY AT THE ADDRESS SET FORTH
ON THE SIGNATURE PAGES HEREOF AS ITS AGENT FOR SERVICE OF PROCESS OUT
OF ANY OF THE COURTS REFERRED TO IN SECTION 9.10. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
ARTICLE X: GUARANTY
As an inducement to the Banks and the Agent to enter into the
transactions contemplated by this Agreement, the Company agrees with the Banks
and the Agent as follows:
SECTION 10.01. Guarantee of Obligations.
(A) The Company hereby (i) guarantees, as principal
obligor and not as surety only, to the Banks the prompt payment of the
principal of and any and all accrued and unpaid interest (including
interest which otherwise may cease to accrue by operation of any
insolvency law, rule, regulation or interpretation thereof) on the
Loans and all other obligations of Masco Europe to the Banks and the
Agent under this Agreement when due, whether by scheduled maturity,
acceleration or otherwise, all in accordance with the terms of this
Agreement and the Notes, including, without limitation, fees,
reimbursement obligations, default interest, indemnification payments
and all reasonable costs and expenses incurred by the Banks and the
Agent in connection with enforcing any obligations of Masco Europe
hereunder, including without limitation the reasonable fees and
disbursements of counsel, (ii) guarantees the prompt and punctual
performance and observance of each and every term, covenant or
agreement contained in this Agreement and the Notes to be performed or
observed on the part of Masco Europe and (iii) agrees to make prompt
payment, on demand, of any and all reasonable costs and expenses
incurred by the Banks or the Agent in connection with enforcing the
obligations of the Company hereunder, including, without limitation,
the reasonable fees and disbursements of counsel (all of the foregoing
being collectively referred to as the "Guaranteed Obligations").
(B) If for any reason any duty, agreement or obligation
of Masco Europe contained in this Agreement shall not be performed or
observed by Masco Europe as provided therein, or if any amount payable
under or in connection with this Agreement shall not be paid in full
when the same becomes due and payable, the Company undertakes to
perform or cause to be performed promptly each of such duties,
agreements and obligations and to pay forthwith each such amount to the
Agent for the account of the
64 SIDLEY XXXXXX XXXXX & XXXX
Banks regardless of any defense or setoff or counterclaim which Masco
Europe may have or assert, and regardless of any other condition or
contingency.
SECTION 10.02. Nature of Guaranty. The obligations of the
Company hereunder constitute an absolute and unconditional and irrevocable
guaranty of payment and not a guaranty of collection and are wholly independent
of and in addition to other rights and remedies of the Banks and the Agent and
are not contingent upon the pursuit by the Banks and the Agent of any such
rights and remedies, such pursuit being hereby waived by the Company.
SECTION 10.03. Waivers and Other Agreements. The Company
hereby unconditionally (a) waives any requirement that the Banks or the Agent,
upon the occurrence of an Event of Default first make demand upon, or seek to
enforce remedies against Masco Europe before demanding payment under or seeking
to enforce the obligations of the Company hereunder, (b) covenants that the
obligations of the Company hereunder will not be discharged except by complete
performance of all obligations of Masco Europe contained in this Agreement and
the Notes, (c) agrees that the obligations of the Company hereunder shall remain
in full force and effect without regard to, and shall not be affected or
impaired, without limitation, by any invalidity, irregularity or
unenforceability in whole or in part of this Agreement or the Notes, or any
limitation on the liability of Masco Europe thereunder, or any limitation on the
method or terms of payment thereunder which may or hereafter be caused or
imposed in any manner whatsoever (including, without limitation, usury laws),
(d) waives diligence, presentment and protest with respect to, and any notice of
default or dishonor in the payment of any amount at any time payable by Masco
Europe under or in connection with this Agreement or the Notes, and further
waives any requirement of notice of acceptance of, or other formality relating
to, the obligations of the Company hereunder and (e) agrees that the Guaranteed
Obligations shall include any amounts paid by Masco Europe to the Banks or the
Agent which may be required to be returned to Masco Europe or to their
representative or to a trustee, custodian or receiver for Masco Europe.
SECTION 10.04. Obligations Absolute. The obligations,
covenants, agreements and duties of the Company under this Agreement shall not
be released, affected or impaired by any of the following whether or not
undertaken with notice to or consent of the Company: (a) an assignment or
transfer, in whole or in part, of the Loans made to Masco Europe or of this
Agreement or any Note although made without notice to or consent of the Company,
or (b) any waiver by any Bank or the Agent or by any other person, of the
performance or observance by Masco Europe of any of the agreements, covenants,
terms or conditions contained in this Agreement or in the Notes, or (c) any
indulgence in or the extension of the time for payment by Masco Europe of any
amounts payable under or in connection with this Agreement or any Note, or of
the time for performance by Masco Europe of any other obligations under or
arising out of this Agreement or any Note, or the extension or renewal thereof,
or (d) the modification, amendment or waiver (whether material or otherwise) of
any duty, agreement or obligation of Masco Europe set forth in this Agreement or
any Note (the modification, amendment or waiver from time to time of this
Agreement and the Notes being expressly authorized without further notice to or
consent of the Company), or (e) the voluntary or involuntary liquidation, sale
or other disposition of all or substantially all of the assets of Masco Europe
or any receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting Masco Europe or any of its assets, or (f) the merger or
consolidation of Masco Europe or the Company with any
65 SIDLEY XXXXXX XXXXX & XXXX
other person, or (g) the release of discharge of Masco Europe or the Company
from the performance or observance of any agreement, covenant, term or condition
contained in this Agreement or any Note, by operation of law, or (h) any other
cause whether similar or dissimilar to the foregoing which would release, affect
or impair the obligations, covenants, agreements or duties of the Company
hereunder.
SECTION 10.05. No Investigation by Banks or Agent. The Company
hereby waives unconditionally any obligation which, in absence of such
provision, the Banks or the Agent might otherwise have to investigate or to
assure that there has been compliance with the law of any jurisdiction with
respect to the Guaranteed Obligations recognizing that, to save both time and
expense, the Company has requested that the Banks and the Agent not undertake
such investigation. The Company hereby expressly confirms that the obligations
of the Company hereunder shall remain in full force and effect without regard to
compliance or noncompliance with any such law and irrespective of any
investigation or knowledge of any Bank or the Agent of any such law.
SECTION 10.06. Indemnity. As a separate, additional and
continuing obligation, the Company unconditionally and irrevocably undertakes
and agrees with the Banks and the Agent that, should the Guaranteed Obligations
not be recoverable from the Company under Section 10.01 for any reason
whatsoever (including, without limitation, by reason of any provision of this
Agreement or the Notes or any other agreement or instrument executed in
connection herewith being or becoming void, unenforceable, or otherwise invalid
under any applicable law) then, notwithstanding any knowledge thereof by any
Bank or the Agent at any time, the Company as sole, original and independent
obligor, upon demand by the Agent, will make payment to the Agent for the
account of the Banks and the Agent of the Guaranteed Obligations by way of a
full indemnity in such currency and otherwise in such manner as is provided in
this Agreement and the Notes.
SECTION 10.07. Subordination, Subrogation, Reinstatement, Etc.
The Company agrees that any present or future indebtedness, obligations or
liabilities of Masco Europe to Company (the "Intercompany Indebtedness") shall
be fully subordinate and subject in right of payment to the prior payment, in
full and in cash, of any and all present or future indebtedness, obligations or
liabilities of Masco Europe to the Banks and the Agent; provided, that, and not
in contravention of the foregoing, so long as no Default has occurred and is
continuing the Company may make loans to and receive payments in the ordinary
course with respect to such Intercompany Indebtedness to the extent not
otherwise prohibited by the terms of this Agreement. Notwithstanding any right
of the Company to ask, demand, xxx for, take or receive any payment from Masco
Europe, all rights, liens and security interests of the Company, whether now or
hereafter arising and howsoever existing, in any assets of Masco Europe shall be
and are subordinated to the rights of the Banks and the Agent in those assets.
The Company agrees that until the Guaranteed Obligations (other than contingent
indemnity obligations) have been paid in full (in cash) and satisfied and all
financing arrangements pursuant to this Agreement have been terminated, the
Company will not assign or transfer to any Person (other than the Agent) any
claim the Company has or may have against Masco Europe. The Company waives any
right of subrogation to the rights of any Bank or the Agent against Masco Europe
or any other person obligated for payment of the Guaranteed Obligations and any
right of reimbursement or indemnity whatsoever arising or accruing out of any
payment which the
66 SIDLEY XXXXXX XXXXX & XXXX
Company may make pursuant to this Agreement and the Notes, and any right of
recourse to security for the debts and obligations of Masco Europe, unless and
until the entire principal balance of and interest on the Guaranteed Obligations
shall have been paid in full and in cash, and to the extent the Company is an
"insider" as defined in Section 101(2) of the United States Bankruptcy Code,
such waiver shall be permanent and shall not be revoked or terminated in any
event, including payment in full of the principal and interest of the Guaranteed
Obligations. If at any time any payment of any Guaranteed Obligations by Masco
Europe is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of Masco Europe or otherwise, each of
the Company's obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
67 SIDLEY XXXXXX XXXXX & XXXX
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, as a Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President and Senior Vice President
General Counsel
Telecopy Number: (000) 000-0000
MASCO EUROPE S.A.R.L., as a Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
c/o Masco Corporation
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President and Senior Vice President
General Counsel
Telecopy Number: (000) 000-0000
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
BANK ONE, NA, as Agent, and as a Bank, as the
Swingline Lender and as the Issuing Bank
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxx_x_xxxxxx@xxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
CITIBANK, N.A., AS bank and as Syndication
Agent
By: /s/ Xxxxxx Xxxx
---------------------------------
Name: Xxxxxx Xxxx
Title: Director and Vice President
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone Number: 000.000.0000
Telecopy Number: 212.816.8242
E-Mail: xxxxxx.x.xxxx@xxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
COMERICA BANK, N.A., as
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Account Officer
000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxx_xxxxxxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
BARCLAYS BANK PLC, as a Bank
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone Number: (000) 000-0000
Telephone Number: (000) 000-0000
E-Mail:xxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ W Xxxxxx Xxxxxxx
-----------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Mailcode: OH-01-27-0606
Xxxxxxxxx, XX 00000
Attention: W. Xxxxxx Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxxx_xxxxxxx@xxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Bank and as a
Syndication Agent
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Warning
-----------------------------------
Name: Xxxxxx X. Warning
Title: Assistant Treasurer
Attention: Xxxx Xxxxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: xxxxxxxx@xxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
ROYAL BANK OF CANADA, as a Bank
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Manager
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxx.xxx@xxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBSHI, LTD.,
CHICAGO BRANCH, as a Bank
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: General Manager
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone Number: (000) 000-0000
Telecopy Number; (000) 000-0000
E-Mail: xxxxxx@xxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
BNP PARIBAS, as a Bank and as Documentation
Agent
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Central Region Manager
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone Number: (000) 000-0000
Telecopy Number; (000) 000-0000
E-Mail: xxxxxxx.xxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
DEXIA BANQUE INTERNATIONAL A LUXEMBOURGE S.A.,
(formerly known as BANQUE INTERNATIONALE A
LUXEMBOURG), as a Bank
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Europe
Attention: Xxxx Xxxxxx
Telephone Number: (++352) 4590 4786
Telecopy Number: (++352) 4590 3444
E-Mail: xxxx.xxxxxx@xxxxx-xxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/ Xxxxx XxXxxx
----------------------------------
Name: Xxxxx XxXxxx
Title: Second Vice President
00 X. XxXxxxx Xxxxxx, Xxxxx X 11
Xxxxxxx, XX 00000
Attention: Xxxxx XxXxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xx00@xxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
BANCA NAZIONALE DEL LAVORO S.P.A. NEW YORK
BRANCH, as a Bank
By: /s/ Francesco Di Mario
------------------------------------
Name: Francesco Di Mario
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
00 Xxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Francesco Di Mario
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxxx.xxxxxxx@xxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
NORDEA BANK FINLAND PLC (formerly known as
MERIT BANK PLC), as a Bank
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxx Xxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: 9212) 421-4420
E-Mail: Xxxxxx.xxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
000 Xxxxx Xxxxxx
Xxxxxxxx X0-XXXX-0-0
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: Xxxxxx.xxxxxxxxx@xxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
THE BANK OF NEW YORK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention Xxxxxx X. Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: XXXXXXXX@XXXXXXXX.XXX
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
BANCA DI ROMA - CHICAGO BRANCH, as a Bank
By: /s/ Enrico Verdoscia
-----------------------------------
Name: Enrico Verdoscia
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title; Vice President
000 X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (312) 72-3058
E-Mail: xxxxxxx@xxx.xxx
xxxxxxx@xxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
ALLFIRST BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
00 Xxxxx Xxxxxxx Xx., 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxxxx.xxxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
WACHOVIA BANK, NATIONAL ASSOCIATION (formerly
known as WACHOVIA BANK, N.A.), as a Bank
By: /s/ Xxx Xxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xx 00000
Attention: Xxx Xxxxxxxxx
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: Xxx.Xxxxxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
MIZUHO COPRORATE BANK, LTD. (as successor to
The Dia-Ichi Kangyo Bank, Ltd. and The
Industrial Bank of Japan, Ltd.), as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Group
Head
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mil: xxxxxxxxxx@xxxxx.xxxxxx-xx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
Title: First Vice President
Credit Lyonnais Chicago branch
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxxxx@xxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
BRANCHES, as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
[Address]
Attention:
Telephone Number:
Telecopy Number:
E-Mail:
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
SUMITOMO MITSUI BANKING CORPORATION, as a Bank
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Joint General Manafer
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxx_xxxxxxxxxxxxxx@xxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
UFJ Bank Limited (formerly known as Sanwa
Bank), as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
EFFECTIVE AS OF NOVEMBER 20, 2002
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: xxx_xxxxxxxx0xxxxxxx.xx.xx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
THE NORINCHUKIN BANK, NEW YORK BRANCH, as a
Bank
By: /s/ Toshiyuki Futaoka
------------------------------------
Name: Toshiyuki Futaoka
Title: Joint General Manager
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx/Toshiyuki Futaoka
Telephone Number: (000) 000-0000, ext. 236
Telecopy Number: (000) 000-0000
E-Mail: xxxxxx@xxxxxxxxx.xx.xx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
ARAB BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: xxxxxxxxxx@xxxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
COMMERCE BANK, as a Bank
By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx-Xxxxxxxx
Title: Vice President Corporate Lending
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention:
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: Xxxxxxxxx@xxxxxxxxxxxxxx.xxx
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President & Manager
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention:
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
E-Mail: Xxxxxxxx@xxxxxxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
UNICREDITO ITALIANO, as a Bank
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: FVP & Deputy Manager
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
[Address]
UniCredito Italiano
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: Xxxxxxx.Xxxxxxx@xxxxxxxxxxxx.xx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR RESOLVING CREDIT AGREEMENT
COMMITMENT SCHEDULE
(AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT)
---------------------------------------------------------------------------------------------------------------
NAME OF BANK COMMITMENT
---------------------------------------------------------------------------------------------------------------
Bank One, NA (Main Office Chicago) $ 195,833,333
---------------------------------------------------------------------------------------------------------------
Commerzbank AG, New York and Grand Cayman Branches $ 137,500,000
---------------------------------------------------------------------------------------------------------------
Citibank, N.A. $ 117,500,000
---------------------------------------------------------------------------------------------------------------
BNP Paribas $ 100,000,000
---------------------------------------------------------------------------------------------------------------
Comerica Bank, N.A. $ 87,500,000
---------------------------------------------------------------------------------------------------------------
Royal Bank of Canada $ 87,500,000
---------------------------------------------------------------------------------------------------------------
Barclays Bank PLC $ 62,500,000
---------------------------------------------------------------------------------------------------------------
KeyBank National Association $ 62,500,000
---------------------------------------------------------------------------------------------------------------
Wachovia Bank, National Association (formerly known as Wachovia Bank, N.A.) $ 62,500,000
---------------------------------------------------------------------------------------------------------------
Mizuho Corporate Bank, Ltd. (as successor to The Dai-Ichi Kangyo Bank, Ltd. and
The Industrial Bank of Japan, Ltd.) $ 40,000,000
---------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-- Mitsubishi, Ltd. Chicago Branch $ 37,500,000
---------------------------------------------------------------------------------------------------------------
Credit Lyonnais Chicago Branch $ 37,500,000
---------------------------------------------------------------------------------------------------------------
Dresdner Bank AG New York and Grand Cayman Branches $ 37,500,000
---------------------------------------------------------------------------------------------------------------
The Northern Trust Company $ 25,000,000
---------------------------------------------------------------------------------------------------------------
Sumitomo Mitsui Banking Corporation $ 20,000,000
---------------------------------------------------------------------------------------------------------------
Banca Di Roma Chicago Branch $ 15,000,000
---------------------------------------------------------------------------------------------------------------
The Bank of New York $ 15,000,000
---------------------------------------------------------------------------------------------------------------
Dexia Banque Internationale a Luxembourg (formerly known as Banque
Internationale a Luxembourg S.A.) $ 15,000,000
---------------------------------------------------------------------------------------------------------------
Nordea Bank Finland Plc (formerly known as Xxxxxx Bank Plc) $ 15,000,000
---------------------------------------------------------------------------------------------------------------
UFJ Bank Limited (formerly known as Sanwa Bank) $ 15,000,000
---------------------------------------------------------------------------------------------------------------
PNC Bank, National Association $ 15,000,000
---------------------------------------------------------------------------------------------------------------
The Norinchukin Bank, New York Branch $ 10,000,000
---------------------------------------------------------------------------------------------------------------
Banca Nazionale del Lavoro S.p.A., New York Branch $ 8,333,333
---------------------------------------------------------------------------------------------------------------
Allfirst Bank $ 8,333,333
---------------------------------------------------------------------------------------------------------------
Arab Bank $ 7,500,000
---------------------------------------------------------------------------------------------------------------
Commerce Bank $ 7,500,000
---------------------------------------------------------------------------------------------------------------
UniCredito Italiano $ 7,500,000
---------------------------------------------------------------------------------------------------------------
TOTAL COMMITMENTS: $1,250,000,000
---------------------------------------------------------------------------------------------------------------
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below (expressed as
basis points):
Level I Level II Level III Level IV Level V
Status Status Status Status Status
-----------------------------------------------------------------------------------
Facility Fee 8.5 10.0 12.5 15.0 17.5
-----------------------------------------------------------------------------------
Letter of Credit Fee 29.0 37.5 47.5 60.0 77.5
-----------------------------------------------------------------------------------
Eurocurrency Margin 29.0 37.5 47.5 60.0 77.5
-----------------------------------------------------------------------------------
Utilization fee > 33% 12.5 15.0 15.0 15.0 20.0
-----------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"LEVEL I STATUS" exists at any date if, on such date, the Company's Xxxxx'x
Rating is A2 or better and the Company's S&P Rating is A or better.
"LEVEL II STATUS" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status and (ii) the Company's Xxxxx'x Rating is A3 or
better and the Company's S&P Rating is A- or better.
"LEVEL III STATUS" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status or Level II Status and (ii) the Company's Xxxxx'x
Rating is Baa1 or better and the Company's S&P Rating is BBB+ or better.
"LEVEL IV STATUS" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status, Level II Status or Level III Status and (ii) the
Company's Xxxxx'x Rating is Baa2 or better and the Company's S&P rating is BBB
or better.
"LEVEL V STATUS" exists at any date if, on such date, the Company has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"XXXXX'X RATING" means, at any time, the rating issued by Xxxxx'x Investors
Service, Inc. and then in effect with respect to the Company's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P RATING" means, at any time, the rating issued by Standard and Poor's Rating
Services, a division of The McGraw Hill Companies, Inc., and then in effect with
respect to the Company's senior unsecured long-term debt securities without
third-party credit enhancement.
SIDLEY XXXXXX XXXXX & XXXX
"STATUS" means either Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status.
The credit ratings to be utilized for purposes of this
Schedule are the ratings assigned to outstanding senior unsecured long-term debt
securities of the Company without third party credit support. Ratings assigned
to any obligation of the Company which is secured or which has the benefit of
third party credit support shall be disregarded.
The Applicable Margin shall be determined in accordance with
the foregoing table based on the Company's Status as determined from its
then-current Moody's and S&P Ratings. The credit rating in effect on any date
for the purposes of this Schedule is that in effect at the close of business on
such date. If at any time the Company has no Xxxxx'x Rating and no S&P Rating,
Level V Status shall exist. Notwithstanding the foregoing, if at any time there
exists a difference between the Xxxxx'x Rating and the S&P Rating, the rating
corresponding to the lower of the two ratings shall apply; provided, however,
that if the difference is greater than one level, the Status shall be determined
based upon the rating one level above the lower of the two ratings.
SIDLEY XXXXXX XXXXX & XXXX
SCHEDULE 1
EUROCURRENCY PAYMENT OFFICES
Currency Eurocurrency Payment Office
-------- ---------------------------
Dollars Bank One, NA
Chicago, Illinois
euro Bank One, NA
London Branch
SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT A
FORM OF AMENDED AND RESTATED NOTE
________' _____
_______________
For value received, [MASCO CORPORATION, a Delaware
corporation] [MASCO EUROPE S.A.R.L., a corporation organized under the laws of
Luxembourg] (the "Borrower"), promises to pay to the order of _____________ (the
"Bank"), for the account of its Applicable Lending Office, the unpaid principal
amount of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the last day of the Interest Period relating to
such Loan. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
the relevant Syndicated Currency at the relevant office of the Agent and as
required under the Credit Agreement referenced below.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding shall
be endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof, provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
It is expressly understood and agreed by the Borrower that (a)
the original principal balance of this note may have been evidenced by a "Note"
under and as defined in the Original Credit Agreement (the "Original Note")
executed by the Borrower and payable to the Bank, and (b) in such event, this
note (i) re-evidences a portion of the payment obligations previously evidenced
by the Original Note, which obligations remain outstanding, (ii) is given in
substitution for and not in repayment of the Original Note and (iii) is in no
way intended to constitute a novation of the Original Note.
This note is one of the Notes referred to in the Amended and
Restated 5-Year Revolving Credit Agreement dated as of November 8, 2002 among
the Borrower, [Masco Corporation] [Masco Europe S.a.r.l.], the banks party
thereto and Bank One, NA (Main Office Chicago), as Agent (as the same may be
amended, modified, supplemented or restated from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
1 SIDLEY XXXXXX XXXXX & XXXX
This note shall be construed in accordance with and governed
by the laws of the State of Illinois. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
[MASCO CORPORATION][MASCO EUROPE
S.A.R.L.]
By_______________________________
Title__________________________
2 SIDLEY XXXXXX XXXXX & XXXX
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
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3 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT B
SWINGLINE NOTE
________'_____
______________
For value received, [MASCO CORPORATION, a Delaware
corporation] [MASCO EUROPE S.A.R.L., a corporation organized under the laws of
Luxembourg] (the "Borrower"), promises to pay to the order of Bank One, NA (the
"Swingline Lender"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Swingline Loan made by the Swingline Lender to
the Borrower pursuant to the Credit Agreement referred to below on the day
required under the Credit Agreement referred to below. The Borrower promises to
pay interest on the unpaid principal amount of each such Swingline Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in the relevant Agreed Currency
at the relevant office of the Agent and as required under the Credit Agreement
referenced below.
All Swingline Loans made by the Swingline Lender, the
respective types and maturities thereof and all repayments of the principal
thereof may be recorded by the Swingline Lender and, prior to any transfer
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding shall be endorsed by the Swingline Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof, provided that the failure of the Swingline Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is the Swingline Note referred to in the Amended and
Restated 5-Year Revolving Credit Agreement dated as of November 8, 2002 among
the Borrower [Masco Corporation] [Masco Europe S.a.r.l.] , the banks party
thereto and Bank One, NA (Main Office Chicago), as Agent (as the same may be
amended, modified, supplemented or restated from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. This note shall be construed in accordance with and governed by the
laws of the State of Illinois. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
[MASCO CORPORATION]
[MASCO EUROPE S.A.R.L.]
By_____________________________
Title________________________
1 SIDLEY XXXXXX XXXXX & XXXX
Swingline Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Date Loan Type of Loan Repaid Date Made By
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2 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT C-1
OPINION OF
COUNSEL FOR THE COMPANY
[Closing Date]
To the Banks and the Agent
Referred to Below
c/o Bank One, NA, as Agent
Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
I am Senior Vice President-General Counsel of Masco
Corporation (the "Company") and in that capacity have responsibility for the
general legal affairs of the Company, Masco Europe S.a.r.l., a Wholly-Owned
Subsidiary of the Company organized under the laws of Luxembourg ("Masco
Europe") and the other Subsidiaries of the Company. I am familiar with the
Amended and Restated 5-Year Revolving Credit Agreement dated as of November 8,
2002 (the "Credit Agreement") among the Company, Masco Europe, the Banks party
thereto as lenders, Commerzbank AG, New York and Grand Cayman Branches and
Citibank, N.A., as Syndication Agents, BNP Paribas, as Documentation Agent, and
Bank One, NA (Main Office Chicago), as Administrative Agent. Terms defined in
the Credit Agreement are used herein as therein defined. This opinion is being
rendered to you pursuant to Section 3.03(B) of the Credit Agreement.
I, or members of the Company's legal staff, have examined
originals or copies, certified or otherwise, identified to my or their
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its businesses substantially as now conducted.
2. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes are within the Company's corporate powers,
have been duly authorized by all necessary corporate action of the Company,
require no action in respect of the Company by, or filing in respect of the
Company with, any governmental body, agency or official (except filings under
the Securities Exchange Act of 1934) and do not contravene, or constitute a
default under any provision of applicable law or regulation or of the
certificate or by-laws of the Company or of any agreement, judgment, injunction,
order, decree or other instrument known to
1 SIDLEY XXXXXX XXXXX & XXXX
me to be binding upon the Company or result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries under any such
agreement or instrument.
3. The Credit Agreement constitutes a valid and binding
agreement of the Company and Masco Europe and the Notes constitute valid and
binding obligations of the Company and Masco Europe, 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 Company or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official which, in my opinion, has resulted in or is likely to result
in a Material Adverse Change or which in any manner draws into question the
validity of the Credit Agreement or the Notes.
My opinion in paragraph 3 as it relates to Masco Europe is
based solely on the opinion of Linklaters Xxxxxx, Luxembourg counsel of Masco
Europe, and is limited, qualified and conditioned as provided therein.
Very truly yours,
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Senior Vice President-
General Counsel
2 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT C-2
OPINION OF
COUNSEL FOR MASCO EUROPE
Attached
1 SIDLEY XXXXXX XXXXX & XXXX
[LINKLATERS XXXXXX]
To the Banks and the Agent referred to below
c/o Bank One, NA (Main Office - Chicago), as Agent
8 November, 2002
RE: MASCO EUROPE S.A.R.L. - USD 1,250,000,000 AMENDED AND RESTATED FIVE YEAR
REVOLVING CREDIT AGREEMENT
Dear Sirs,
1. INTRODUCTION
We have acted as counsel to Masco Europe S.A.R.L., a corporation organized under
the laws of the Grand-Duchy of Luxembourg (the "BORROWER") in connection with
the Amended and Restated 5-Year Revolving Credit Agreement dated 8 November,
2002 (the "AGREEMENT") among Masco Corporation ("MASCO"), the Borrower, the
Banks party thereto as lenders, Commerzbank AG, New York, and Grand Cayman
Branches and Citibank NA as Syndication Agents, BNP Paribas as Documentation
Agent, and Bank One, NA (Main Office - Chicago) as Administrative Agent. Terms
defined in the Agreement are used herein as therein defined. This opinion is
being rendered to you pursuant to Section 3.03 (B) of the Credit Agreement.
2. LUXEMBOURG LAW
This opinion is limited to Luxembourg law as applied by the Luxembourg courts
and published and in effect on the date of this opinion. It is given on the
basis that all matters relating to it will be governed by, and that it
(including all terms used in it) will be construed in accordance with,
Luxembourg law. In this opinion, Luxembourg legal concepts are expressed in
English terms and not in their original French terms. The concepts concerned may
not be identical to the concepts described by the same English terms as they
exist under the law of other jurisdictions.
3. SCOPE OF INQUIRY
For the purpose of this opinion, we have examined the following documents:
3.1 A draft of the Agreement dated 1st November, 2002.
3.2 Certified coordinated Articles of Incorporation of the Borrower dated
26 June 2002.
Linklaters is a partnership under English law. A list of the partners in
Linklaters is available on request from the above address.
Please refer to xxxxxxxxxxxxx.xxx/xxxxxxxxxx for important information on the
regulatory position of the firm.
[LINKLATERS XXXXXX]
3.3 An excerpt from the Luxembourg Register of Commerce and Companies
concerning the Borrower dated 18 October 2002.
3.4 A copy of minutes of resolutions of the Boards of Directors of the
Borrower dated 18 October, 2002.
3.5 A certificate signed by Xx. Xxxxx Xxxxx on behalf of the Board of
Managers of the Borrower dated 4 November, 2002.
4. ASSUMPTIONS
For the purpose of this opinion, we have made the following assumptions:
4.1 All copy and draft documents conform to the originals and all originals
are genuine and complete.
4.2 Each signature on the originals is the genuine signature of the
individual concerned.
4.3 The Agreement constitutes valid and binding obligations of the Borrower
under the laws of the State of Illinois applicable thereto.
4.4 The resolutions referred to in paragraph 3.4 have been duly and validly
taken and remain in full force and effect without modification.
4.5 The Agreement has been or will be duly executed in or substantially in
the form of the final draft examined by us.
4.6 The facts stated in the certificate referred to in paragraph 3.5 are
correct.
5. OPINION
Based on the documents referred to and the assumptions in paragraph 4 and
subject to the qualifications in paragraph 6 and to any matters not disclosed to
us, we are of the following opinion:
5.1 The Borrower has been duly incorporated and is existing as a "societe a
responsabilite limitee" under the laws of the Grand-Duchy of
Luxembourg.
5.2 The Borrower has the corporate power to enter into the Agreement and to
execute the Notes.
5.3 The execution, delivery and performance by the Borrower of the
Agreement and the Notes have been duly authorised by all necessary
corporate action of the Borrower and do not contravene, or constitute a
default under any provision of applicable law or regulation or of the
Articles of Incorporation of the Borrower.
5.4 Under Luxembourg law, there are no governmental or regulatory filings,
consents, approvals or authorisations required by the Borrower for the
entering into of the Agreement or the execution of the Notes.
5.5 The execution, delivery and performance of the Agreement and the Notes
do not violate Luxembourg law.
5.6 The courts of Luxembourg will recognise and give effect to the
jurisdiction clause contained in section 9.10 of the Agreement.
Page 2 of 5
[LINKLATERS XXXXXX]
5.7 A judgment of a State or Federal Court located in the State of Illinois
would be recognised and enforced by the Courts of Luxembourg subject to
applicable exequatur proceedings and the satisfaction of the following
criteria:
- The foreign Court must properly have had jurisdiction to hear
and determine the matter.
- The decision of the foreign Court must have been final and
conclusive,
- The decision of the foreign Court must not have been obtained
by fraud, and
- The decision of the foreign Court must not be contrary to
public policy or have been given in proceedings of criminal
nature.
5.8 The courts of Luxembourg will recognise and give effect to the choice
of the laws of the State of Illinois as the governing law of the
Agreement.
5.9 No stamp duty or registration or similar tax is payable under
Luxembourg law in connection with the parties entering into the
Agreement or the Borrower executing the Notes, save that registration
may be ordered and a registration fee might become payable if and when
the Agreement were adduced as evidence in a Luxembourg court or
submitted to another Luxembourg public authority ("autorite
constituee").
5.10 It is not necessary under the laws of Luxembourg in order to enable the
Agent or the Banks to enforce their rights under the Agreement or any
Notes to which the Borrower is a party against the Borrower that the
Agent or the Banks should be licensed, qualified or otherwise entitled
to carry on business in Luxembourg. By reason of the execution,
delivery and performance of the Agreement and the Notes to which it is
a party, neither the Agent nor any Bank will be deemed to be resident,
domiciled or carrying out business in Luxembourg or the subject of
taxation under the laws of Luxembourg.
5.11 Neither the Borrower nor any of its properties or assets have any
immunity from the jurisdiction of any court or from legal process under
the laws of Luxembourg.
5.12 The Borrower is not required by the existing laws of Luxembourg to make
any deduction or withholding from any amount due under the Agreement or
the Notes.
6. QUALIFICATIONS
This opinion is subject to the following qualifications:
6.1 This opinion is subject to all limitations arising from bankruptcy,
insolvency, liquidation, moratorium, reorganisation and other laws of
general application relating to or affecting the rights of creditors.
6.2 In Luxembourg, remedies such as specific performance and injunction may
not be available.
6.3 In Luxembourg, enforcement may be limited by general principles of good
faith.
6.4 Claims may become barred under the statutes of limitation or may be or
become subject to defences of set-off and counterclaim.
6.5 Where obligations are to be performed in a jurisdiction outside
Luxembourg, they may not be enforceable in Luxembourg to the extent
that performance would be illegal under the laws of that other
jurisdiction.
Page 3 of 5
[LINKLATERS XXXXXX]
6.6 Any obligation to pay a sum of money in a currency other than the
Luxembourg franc or the EURO will be enforceable in Luxembourg in terms
of Luxembourg francs or EURO only. Monetary judgments may be expressed
in a foreign currency or its Luxembourg franc or EURO equivalent at the
time of judgment or payment.
6.7 Obligations to make payments that may be regarded as penalties might
not be enforceable under Luxembourg law.
6.8 The admissibility in evidence of the Agreement and/or the Noted before
a Luxembourg court or another Luxembourg public authority ("autorite
constituee") may require a complete or partial translation of such
document into French or German.
6.9 Contractual provisions allowing the service of process against the
Borrower could not prevent a Luxembourg court from holding as valid the
service of process against the Borrower in accordance with applicable
laws at the registered office of the Borrower.
6.10 Luxembourg courts will not necessarily award costs and disbursements in
litigation in accordance with contractual provisions in this regard.
6.11 A certificate, determination, calculation or designation of any party
to the Agreement as to any matter provided therein might be held by a
Luxembourg court not to be conclusive, final and binding if, for
example, it could be shown to have an unreasonable or arbitrary basis
or in the event of manifest error.
6.12 Any term of the Agreement may be amended orally or conduct by the
parties thereto, notwithstanding any provision to the contrary
contained therein.
6.13 We reserve our opinion as to the extent to which a Luxembourg court
would, in the event of any relevant illegality, sever the offending
provisions and enforce the remainder of the transaction of which such
provisions form a part, notwithstanding any express contractual
provisions in this regard.
6.14 Our opinion that the Borrower is existing is based on the excerpt from
the Register of Commerce and Companies. It should be noted that a
search in such Register is not capable of revealing conclusively
whether or not a winding up petition has been presented because notice
of a winding up order or a winding up resolution passed may not be
filed immediately with the Register of Commerce and Companies.
6.15 We have not been instructed to review any tax matters (other than those
matters expressly mentioned in this opinion) and any reference to
Luxembourg law herein shall exclude the laws relating to such matters.
6.16 We express no opinion as to the accuracy of any warranties and
representations given on made by the Borrower (expressly or impliedly),
save and insofar as the matters warranted are the subject matter of
specific opinions in this letter.
7. RELIANCE
This opinion is solely for your benefit and the benefit of the Banks
and solely for the purpose of the execution and performance of the
Agreement and/or the Notes. It is not to be transmitted to anyone else
nor is it to be relied upon by anyone else of for any other purpose or
quoted or referred to in any public document or filed with anyone
without our written consent, provided,
Page 4 of 5
[LINKLATERS XXXXXX]
that notwithstanding anything in this opinion letter to the contrary,
(a) the Borrower and Masco may refer to and file a copy of this opinion
as required by applicable securities laws and (b) you may disclose this
opinion (i) to prospective successors and assigns of the addressees
hereof, (ii) to regulatory authorities having jurisdiction over any of
the addressees hereof or their successors and assigns, and (iii)
pursuant to valid legal process, in each case without our prior
consent.
Yours faithfully,
Linklaters Xxxxxx
By: /s/Xxxxxx Xxxxx
-----------------------
Xxxxxx Xxxxx
Page 5 of 5
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______ ___, ____, among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), MASCO CORPORATION (the "Company") and
Bank One, NA (Main Office Chicago), 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 5-Year Revolving Credit
Agreement dated as of November 8, 2002 among the Company, Masco Europe S.a.r.l.,
a wholly-owned subsidiary of the Company organized under the laws of Luxembourg,
the Banks party thereto as lenders, Commerzbank AG, New York and Grand Cayman
Branches and Citibank, N.A., as Syndication Agents, BNP Paribas, as
Documentation Agent, and Bank One, NA (Main Office Chicago), as Administrative
Agent (the "Credit Agreement"),
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans to the Borrowers (and to participate in Letters
of Credit and Swingline Loans) in an aggregate principal amount at any time
outstanding not to exceed
$___________________;
WHEREAS, Loans made to the Borrowers by the Assignor under the
Credit Agreement in the aggregate principal amount of
$__________________are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________________ (the
"Assigned Amount"), together with a corresponding portion of its outstanding
Loans and obligations to participate in Letters of Credit and Swingline Loans,
and the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amount specified in Section 3 required to be paid
on the date hereof (1) the Assignee shall,
1 SIDLEY XXXXXX XXXXX & XXXX
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 $_________________ .(1) It
is understood that facility fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof [in
respect of the Assigned Amount] are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. [Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the Company and the Agent pursuant
to Section 9.06(C) of the Credit Agreement, the execution of this Agreement by
the Company and the Agent is evidence of this consent. Pursuant to Section
9.06(C) the Company agrees to execute and deliver or cause to be executed and
delivered a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Company, or the validity and enforceability of the obligations of the Company in
respect of the Credit Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
--------------------------------
(1) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in an
appropriate case to specify these amounts generically or by formula rather than
as a fixed sum.
2 SIDLEY XXXXXX XXXXX & XXXX
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authored officers as of the date first
above written.
[ASSIGNOR]
By_____________________________________
Title:_______________________________
[ASSIGNEE]
By_____________________________________
Title:_______________________________
[MASCO CORPORATION]
By_____________________________________
Title:_______________________________
BANK ONE, NA (MAIN OFFICE CHICAGO), as Agent
By_____________________________________
Title:_______________________________
3 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT E
NOTICE OF BORROWING
[Date]
To each Bank party to the referenced
Credit Agreement
c/o Bank One, NA (Main Office Chicago),
as Administrative Agent for the Banks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: (for Borrowings in Dollars)
___________________________
(for Borrowings in euro)
___________________________
The Borrower (as hereinafter named), hereby requests a
Borrowing pursuant to Section 2.01(A) of the Amended and Restated 5-Year
Revolving Credit Agreement, dated as of November 8, 2002, as amended,
supplemented or otherwise modified from time to time (the "Credit Agreement"),
by and among Masco Corporation, a Delaware corporation, Masco Europe S.a.r.l., a
wholly-owned subsidiary of Masco Corporation organized under the laws of
Luxembourg, the Banks party thereto, Commerzbank AG, New York and Grand Cayman
Branches and Citibank, N.A., as Syndication Agents, BNP Paribas, as
Documentation Agent, and Bank One, NA (Main Office Chicago), as Administrative
Agent (the "Agent"). Capitalized terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement. Such Borrowing
shall be evidenced by the Borrower's Note, as applicable.
(i) Borrower's Name:_____________________________________________
(ii) [The Borrowing is in Dollars in the amount of:_______________]
[The Borrowing is in euro in the amount of:__________________]
Existing Loan amount:________________________________________
Repayment:___________________________________________________
Continuation of Eurocurrency Loan (Interest Period ending:__)
Increased amount:____________________________________________
Total Loan amount:___________________________________________
(iii) The Borrowing is to be funded on:____________________________
(iv) The Loans comprising such Borrowing shall be made as
[Floating Rate] [Eurocurrency] Loans.
(v) In the case of a Eurocurrency Borrowing, the Interest Period
shall be_____________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_______________________________________
as Borrower
1 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT E-1
NOTICE OF SWINGLINE LOAN
[Date]
Bank One, NA (Main Office Chicago), as Swingline Lender
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: __________________________(for a Swingline Loan in Dollars)
__________________________(for a Swingline Loan in an Agreed
Currency other than Dollars)
The Borrower (as hereinafter named), hereby requests a
Swingline Loan pursuant to Section 2.01(B) of the Amended and Restated 5-Year
Revolving Credit Agreement, dated as of November 8, 2002, as amended,
supplemented or otherwise modified from time to time (the "Credit Agreement"),
by and among Masco Corporation, a Delaware corporation, Masco Europe S.a.r.l., a
wholly-owned subsidiary of Masco Corporation organized under the laws of
Luxembourg, the Banks party thereto, Commerzbank AG, New York and Grand Cayman
Branches and Citibank, N.A., as Syndication Agents, BNP Paribas, as
Documentation Agent, and Bank One, NA, as Administrative Agent (the "Agent").
Capitalized terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement. Such Borrowing shall be evidenced by
the Borrower's Swingline Note.
(i) Borrower's Name:__________________________________________
(ii) [The Swingline Loan is in Dollars in the amount
of:_____________________________________________________]
[The Swingline Loan is in [insert desired Agreed Currency] in
the amount of:
(iii) The Swingline Loan is to be funded on:____________________
(iv) In the case of a Swingline Loan in an Agreed Currency other
than Dollars, the agreed Interest Period shall
be________________________________________________________
and the agreed upon interest rate shall be_______________.
_____________________________________
as Borrower
1 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT F
FORM OF DESIGNATION AGREEMENT
Dated __________, 200__
Reference is made to the $1,250,000,000 Amended and Restated
5-Year Revolving Credit Agreement dated as of November 8, 2002 (as amended,
modified, supplemented or restated from time to time, the "Credit Agreement")
among Masco Corporation, a Delaware corporation (the "Company"), Masco Europe
S.a.r.l., a wholly-owned subsidiary of the Company organized under the laws of
Luxembourg (together with the Company, the "Borrowers"), the Banks party
thereto, Commerzbank AG, New York and Grand Cayman Branches and Citibank, N.A.,
as Syndication Agents, BNP Paribas, as Documentation Agent, and Bank One, NA
(Main Office Chicago), as Administrative Agent. Terms defined in the Credit
Agreement are used herein as therein defined.
_________ (the "Designator"), ____________ (the "Designee"),
and the Borrowers, agree as follows:
1. The Designator hereby designates the Designee, and
the Designee hereby accepts such designation, as its Designated Lender under the
Credit Agreement.
2. The Designator makes no representations or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Article IV thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Designation Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent, the Designator 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 it
may be permitted to take under the Credit Agreement; (iii) confirms that it is
an Eligible Designee; (iv) appoints and authorizes the Designator as its
administrative agent and attorney-in-fact and grants the Designator an
irrevocable power of attorney to receive payments made for the benefit of the
Designee under the Credit Agreement and to deliver and receive all
communications and notices under the Credit Agreement, if any, that Designee is
obligated to deliver or has the right to receive thereunder; (v) acknowledges
that it is subject to and bound by the confidentiality provisions of the Credit
Agreement (except as permitted under Section 9.08 thereof); and (vi)
acknowledges that the Designator retains the sole right and responsibility to
vote under the Credit Agreement, including, without limitation, the right to
approve any amendment, modification or waiver of any provision of the Credit
Agreement, and agrees that the Designee shall be bound by all such votes,
approvals, amendments, modifications and waivers and all other agreements of the
Designator pursuant to or in connection with the Credit Agreement, all subject
to Section 9.05 of the Credit Agreement.
1 SIDLEY XXXXXX XXXXX & XXXX
4. Following the execution of this Designation Agreement
by the Designator, the Designee and the Borrowers, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date of this
Designation Agreement shall be the date of acceptance thereof by the Agent,
unless otherwise specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as
of the Effective Date (a) the Designee shall have the right to make Loans as a
Bank pursuant to Section 2.01 of the Credit Agreement, and to participate in
Swingline Loans and Letters of Credit in accordance with the terms of the Credit
Agreement and the rights of a Bank related thereto and (b) the making of any
such Loans, or participations in Swingline Loans and Letters of Credit, by the
Designee shall satisfy the obligations of the Designator under the Credit
Agreement to the same extent, and as if, such Loans were made, or Swingline
Loans or Letters of Credit were participated in, by the Designator.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
2 SIDLEY XXXXXX XXXXX & XXXX
IN WITNESS WHEREOF, the parties have caused this Designation
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
Effective Date(2):
[NAME OF DESIGNATOR]
By: ______________________________
Name: ___________________________
Title: __________________________
[NAME OF DESIGNEE]
By: ______________________________
Name: ___________________________
Title: __________________________
MASCO CORPORATION
By: ______________________________
Name: ___________________________
Title: __________________________
MASCO EUROPE S.A.R.L.
By: ______________________________
Name: ___________________________
Title: __________________________
Accepted and Approved this
____ day of ________, ____
BANK ONE, NA (MAIN OFFICE CHICAGO), as Agent
By: ______________________________
Title: ___________________________
--------------------------------
(2) This date should be no earlier than the date of acceptance by the
Administrative Agent.
3 SIDLEY XXXXXX XXXXX & XXXX
EXHIBIT G
FORM OF L/C REQUEST
[Date]
Bank One, NA (Main Office Chicago), as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
with a copy to:
[If Issuing Bank is Bank One, NA:
000 X. Xxxxxxxxx Xxxxx
0xx Xxxxx, Mail Code IL1-0236
Attention: Standby Letter of Credit Xxxx
Xxxxxxx, XX 00000-0000]
[If Issuing Bank is not Bank One, NA:
[Name and address of such Issuing Bank]]
The Borrower (as hereinafter named), hereby requests a that
Letter of Credit be issued having the characteristics set forth on Schedule I
attached hereto and made a part hereof pursuant to Section 2.17(C) of the
Amended and Restated 5-Year Revolving Credit Agreement, dated as of November 8,
2002, as amended, supplemented or otherwise modified from time to time (the
"Credit Agreement"), by and among Masco Corporation, a Delaware corporation,
Masco Europe S.a.r.l., a wholly-owned subsidiary of Masco Corporation organized
under the laws of Luxembourg, the Banks party thereto, Commerzbank AG, New York
and Grand Cayman Branches and Citibank, N.A., as Syndication Agents, BNP
Paribas, as Documentation Agent, and Bank One, NA (Main Office Chicago), as
Administrative Agent (the "Agent"). Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
The Borrower has previously provided or herewith provides to
the Issuing Bank resolutions and specimen signatures in a form acceptable to the
Borrower and the Issuing Bank and attached hereto as Schedule II.
________________________________
as Borrower
1 SIDLEY XXXXXX XXXXX & XXXX
Schedule I to L/C Request
Application
To: [INSERT NAME OF ISSUING BANK] and/or its subsidiaries and/or
affiliates.
Date:
Please issue an Irrevocable Standby Letter of Credit as set forth below and
forward same directly to the Beneficiary as indicated below (by check "X").
Transmit by:
[ ] Courier [ ] Air mail [ ] Full Telex/SWIFT [ ] Other (specify in detail)
------------------------------------------------------------------------------------------------------------------
Advising Bank (Name and Address): For account of Applicant(s) (Name and Address):
(Issuer use only unless Applicant designates advising bank)
Phone No. (___ ) Fax No. (___ )
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To Beneficiary (Name and Address): Amount (Numeric)
----------------------------------------------------
(Amount Written)
----------------------------------------------------
[Pi] +/-____ %
----------------------------------------------------
Expiry Date:
At the counters of the Nominated/Issuing Bank
------------------------------------------------------------------------------------------------------------------
Available against Beneficiary's draft(s) at sight drawn on Issuer and
accompanied by the following document(s).
[ ] Beneficiary's signed and dated statement stating that:
[ ] Automatically renewable for _____ months or for _____ days with a final
expiration date of
[ ] Copy(ies) of Beneficiary's commercial invoice(s) marked "unpaid":
[ ] Other:
[ ] Special Conditions:
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Complete only when the Beneficiary's bank or correspondent is to issue its
guarantee or undertaking based on the issued Standby Letter of Credit.
[ ] Request Beneficiary's bank to issue and deliver their
(Specify type of bid or performance bond, guarantee, undertaking, or other)
[ ] In favor of: Name(s) & Attention
Address/Street
Address/City
State _______________ Country
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2
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Telephone (_____) _____ Fax Number (_____)
For an amount not exceeding that specified above, effective immediately and
expiring at their office on ______.
(At least 30 days prior to Expiry Date above)
covering _________.
(specify number or bid or performance bond, etc.)
--------------------------------------------------------------------------------
Drawings (Check where applicable): [ ] Partial drawings prohibited
[ ] Multiple drawings prohibited [ ] Tele-facsimile drawings permitted
Charges: (UNLESS SPECIFIED, ALL CHARGES WILL BE FOR APPLICANT'S ACCOUNT) All
banking charges other than the Issuer's are for [ ] Beneficiary [ ] Applicant.
Please include a brief description as to the purpose of the Standby Letter of
Credit: _____.
Applicant represents and warrants to Issuer that applicant is (choose one) A
corporation organized under the laws of the State of _____; A _____, organized
under the laws of _____; or an individual residing at _____.
PLEASE ISSUE LETTER OF CREDIT SUBJECT TO (CHECK ONE) - [ ] ISP98 OR [ ] UCP 500.
IF NO SELECTION IS MADE, THE LETTER OF CREDIT SHALL BE SUBJECT TO THE UCP 500.
We hereby authorize you to issue this Letter of Credit with such variations from
the above terms as you may, in your discretion, determine are necessary and are
not materially inconsistent with this Application, provided that any such
changes are reasonably acceptable to us. The opening of this Letter of Credit
and the Applicant's responsibilities with respect thereto are subject to ISP98
or UCP 500 as indicated above and the terms and conditions set forth in this
Application and the Amended and Restated 5-Year Credit Agreement dated as of
November 8, 2002 among Masco Corporation, Masco Europe S.a.r.l., the financial
institutions from time to time parties thereto, Commerzbank AG, New York and
Grand Cayman Branches and Citibank, N.A., as syndication agents, BNP Paribas, as
documentation agent and Bank One, NA (Main Office Chicago), as administrative
agent (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"). By signing this Application at the
place provided, the Applicant confirms its agreement to the terms and conditions
of the Credit Agreement and hereby confirms the applicability of the Credit
Agreement to this Application and the Letter of Credit.
ANY AND ALL ATTACHMENTS FORM AN INTEGRAL PART OF THIS APPLICATION
PLEASE [ ] CHECK IF ATTACHMENTS ARE INCLUDED
3
Schedule II to L/C Request
RESOLUTIONS AND SPECIMEN SIGNATURES
[To be attached.]
4
