SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 21,
1994
(this "Amendment") is by and among MASCOTECH, INC., a Delaware corporation,
the Banks, NBD BANK, N.A., a national banking association, as Agent for the
Banks, and COMERICA BANK, a Michigan banking association, THE BANK OF NEW
YORK, a New York banking corporation, THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a
New
York banking association, and NATIONSBANK OF NORTH CAROLINA, N.A., a national
banking association, as Co-Agents.
RECITALS
A. The Company, the Banks, the Agent and the Co-Agents are parties to
a Credit Agreement dated as of September 2, 1993, as amended by a First
Amendment to Credit Agreement dated as of June 29, 1994. Capitalized terms
used but not defined in this Amendment shall have the respective meanings
ascribed thereto in such Agreement.
B. The Company, the Banks, the Agent and the Co-Agents are willing to
amend the Agreement as set forth herein.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties hereby agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in
Article III hereof, the Agreement shall be amended as follows:
1.1 The definition of "EBIT" contained in Section 1.1 is restated in
its entirety to read as follows:
"EBIT" means, for any period, Net Income, exclusive of any
Non-Cash Special Items, for such period plus, to the extent
deducted in determining such Net Income: (a) Interest
Charges for such period, (b) income and other taxes and (c)
for all purposes other than calculating the Interest
Coverage Ratio in determining the Applicable Margin, the
portion of the special charges not included in Non-Cash
Special Items, recorded
through December 31, 1995, relating to the sale and/or
restructuring of certain of the business units of the Company and
its Subsidiaries, the general components of such sale and/or
restructuring to be announced no later than February 28, 1995,
provided that for purposes of this definition such portion not
included in Non-Cash Special Items shall not exceed $30,000,000.
1.2 Section 7.5 is restated in its entirety as follows:
Total Leverage Ratio. The Company will not permit or
suffer the Total Leverage Ratio to be greater than
(a) 1.75 to 1.0 as of the last day of any fiscal
quarter of the Company occurring during the period
from January 1, 1994 through December 30, 1994, (b)
1.75 to 1.0 as of the last day of any fiscal quarter
of the Company during the period from December 31,
1994 through March 31, 1995, (c) 1.65 to 1.0 as of the
last day of any fiscal quarter of the Company
occurring during the period from April 1, 1995 through
December 30, 1995, (d) 1.40 to 1.0 as of December 31,
1995, (e) 1.65 to 1.0 as of the last day of any fiscal
quarter of the Company occurring during the period
from January 1, 1996 through December 30, 1996, (f)
1.25 to 1.0 as of December 31, 1996, (g) 1.50 to 1.0
as of the last day of any fiscal quarter of the
Company occurring during the period from January 1,
1997 through December 30, 1997, (h) 1.0 to 1.0 as of
December 31, 1997, (i) 1.25 to 1.0 as of the last day
of any fiscal quarter of the Company occurring during
the period from January 1, 1998 through December 30,
1998, (j) 1.0 to 1.0 as of December 31, 1998, and (k)
1.25 to 1.0 as of the last day of any fiscal quarter
of the Company thereafter.
1.3 Clause (a) of Section 7.8 is restated in its entirety as follows:
(a) The Company will not permit or suffer the Senior
Debt Coverage Ratio to be greater than (i) 5.50 to
1.00 at any time during the period from the Closing
Date through September 29, 1995, and (ii) 5.00 to 1.00
at any time thereafter.
1.4 Clause (c) of Section 7.8 is restated in its entirety as follows:
(c) As used in this Section 7.8, the term "Maximum
Allowed Senior Debt Coverage Ratio" means (i) 4.25 to
1.00 on the Relevant Day immediately following the
last day of any fiscal quarter of the Company ending
during the period from the Closing Date through
December 30, 1993, (ii) 4.00 to 1.00 on
-2-
the Relevant Day immediately following December 31, 1993, (iii)
4.25 to 1.00 on the Relevant Day immediately following the last
day of any fiscal quarter of the Company ending during the period
from January 1, 1994 through December 30, 1994, (iv) 3.50 to 1.00
on the Relevant Day immediately following December 31, 1994, (v)
5.50 to 1.00 on the Relevant Day immediately following the last
day of any fiscal quarter of the Company ending during the period
from January 1, 1995 through September 29, 1995, (vi) 3.75 to
1.00 on the Relevant Day immediately following September 30, 1995,
(vii) 3.50 to 1.00 on the Relevant Day immediately following
December 31, 1995, (viii) 3.75 to 1.00 on the Relevant Day
immediately following the last day of any fiscal quarter of the
Company ending during the period from January 1, 1996 through
December 30, 1996, (ix) 3.25 to 1.00 on the Relevant Day
immediately following each of December 31, 1996 and December 31,
1997, and (ix) 3.50 to 1.00 on the Relevant Day immediately
following the last day of any fiscal quarter of the Company ending
after January 1, 1997, other than the fiscal quarter ending
December 31, 1997. For purposes of this Section 7.8, all Senior
Debt which is repaid with cash received by the Company from Masco
Corporation for the purchase of preferred stock or subordinated
debt securities pursuant to the Securities Purchase Agreement
within forty-five days after the last day of any fiscal quarter of
the Company shall be deemed repaid as of the last day of such
fiscal quarter, and during such forty-five day period no Default
shall be deemed to have occurred due to noncompliance with this
Section 7.8.
ARTICLE II. REPRESENTATIONS. The Company represents and warrants that:
2.1 The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate action and do
not and will not violate the provisions of any applicable law or regulation or
of the certificate of incorporation or bylaws of the Company or any Subsidiary
or any order of any court, regulatory body or arbitral tribunal and do not and
will not result in the breach of, or constitute a default or require any
consent under, or create any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to, any indenture or other
agreement or instrument to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary or its property may be bound or
affected. The execution, delivery and performance of this Amendment do not
require, for the validity thereof, nor does the enforceability of this
Amendment require, any filing with, or consent, authorization or approval of,
any state or federal agency or regulatory authority, other than filings,
consents or approvals which have been made or obtained.
-3-
2.2 This Amendment constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article VI of the Agreement are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof.
2.4 As of the date hereof, there is no Default.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until the following shall have been delivered to the Agent:
3.1 This Amendment duly executed on behalf of the Company and the
Required Banks.
3.2 A copy of the resolutions adopted by the Board of Directors of the
Company, certified by an officer of the Company as being true and correct and
in full force and effect without amendment as of the date hereof, authorizing
the Company to enter into this Amendment.
3.3 An opinion of counsel for the Company in the form of Schedule 3.3
hereto.
ARTICLE IV. MISCELLANEOUS.
4.1 The Company shall pay to the Agent, for the benefit of each
Consenting Bank, on or within two Business Days after the date of this
Amendment an amendment fee in the amount of five basis points of the
Commitment of such Consenting Bank. As used herein, a "Consenting Bank" shall
be a Bank which both (a) commits in writing to the Agent on or before December
19, 1994 to execute this Amendment and (b) executes this Amendment.
4.2 For purposes of the representation contained in the last sentence
of Section 6.6, the Banks acknowledge that, after giving effect to the special
charges recorded by the Company and its Subsidiaries through December 31, 1995
relating to the sale and/or restructuring of certain of the business units of
the Company and its Subsidiaries, the general components of such sale and/or
restructuring to be announced no later than February 28, 1995, there has been
no material adverse change in the consolidated operations or condition,
financial or otherwise, of the Company and its Consolidated Subsidiaries
considered as a whole since December 31, 1992, to the extent of $375,000,000
aggregate after-tax amount of such charges; provided, however, that the
foregoing does not constitute an acknowledgement as to the effect of any
special charge or event other than the special
-4-
charge referred to above for purposes of the representation contained in the
last sentence of Section 6.6.
4.3 References in the Agreement or in any note, certificate,
instrument or other document to the Agreement shall be deemed to be references
to the Agreement as amended from time to time.
4.4 The Company agrees to pay and to save the Agent harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Agent in connection with
preparing this Amendment and the related documents.
4.5 The Company agrees that the Agreement and other documents and
agreements executed by the Company in connection with the Agreement in favor
of the Agent, the Co-Agents and/or the Banks are ratified and confirmed and
shall remain in full force and effect, except as expressly amended hereby.
4.6 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument, and telecopied signatures shall be effective.
4.7 This Amendment is a contract made under, and shall be governed by
and construed in accordance with, the law of the State of Michigan applicable
to contracts made and to be performed entirely within such State and without
giving effect to choice of law principles of such State.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the day and year first above written.
NBD BANK, N.A. MASCOTECH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx Xxxxxxx Xxxxxxx
Its: Vice President Its Vice President-
Controller and Treasurer
-5-
THE BANK OF NEW YORK COMERICA BANK
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
THE FIRST NATIONAL BANK XXXXXX GUARANTY TRUST
OF CHICAGO COMPANY OF NEW YORK
By: /s/ Xxxxx X. Comtle By: /s/ Xxxxxxx X. Xxxxxxxxx
Its: Vice President Its: Vice President
NATIONSBANK OF NORTH BANK OF AMERICA ILLINOIS
CAROLINA, N.A.
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxx, Xx.
Its: Vice President Its: Vice President
PNC BANK, NATIONAL ASSOCIATION BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx
Its: Assistant Vice President Its: Vice President
MICHIGAN NATIONAL BANK ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxx Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxx
Its: Second Vice President Its: Manager
-6-
NATIONAL CITY BANK THE FUJI BANK, LTD.
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxx
Its: Vice President Its: Joint General Manager
FIRST BANK NATIONAL CITIBANK, N.A.
ASSOCIATION
By: /s/ Xxxxxxx X. XxXxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Its: V.P. Its: Vice President
CIBC INC. WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx X. Xxxx
Its: Vice President Its: Senior Vice President
*CORESTATES PHILADELPHIA SHAWMUT BANK
NATIONAL BANK CONNECTICUT, N.A.
By: /s/ Corestates Philadelphia By: /s/ Xxxxxxx X. Xxxxxxxxx
Its: ________________________ Its: Managing Director
FIRST NATIONAL BANK THE SANWA BANK, LIMITED,
OF BOSTON CHICAGO BRANCH
By: /s/ Xxx Xxxxx By: /s/ Xxxxxxx X. Xxxx
Its: Vice President Its: Vice President
Correct Legal Title is
*CoreStates Bank, N.A.
-7-
Schedule 3.3
December 21, 1994
To the Banks, Co-Agents and Agent
party to the Credit Agreement
described herein, in care of
NBD Bank, N.A., as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Second Amendment to Credit Agreement, dated as
of December 21, 1994 (the "Amendment"), by and among MascoTech, Inc., a
Delaware corporation (the "Company"), the Banks and the Co-Agents party
thereto, and NBD Bank, N.A., as Agent for the Banks. I am the Associate
General Counsel for the Company, and in the capacity of counsel for the
Company I have been requested by the Company to give my opinion pursuant to
Section 3.3 of the Amendment. For purposes of this opinion, the terms used in
this opinion which are not defined herein shall have the respective meanings
set forth in the Agreement.
I or members of the legal staff of the Company have examined originals
or copies of all such documents, corporate records and other instruments of
the Company, and have made such investigations of fact and law, as I have
deemed necessary or advisable for purposes of this opinion.
Based upon the foregoing, it is my opinion that:
(a) The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware and is duly authorized
to do business and is in good standing in the State of Michigan;
(b) The Company has all requisite corporate power and authority to
conduct its business substantially as now being
To the Banks and Agent
December ____, 1994
Page 2
conducted and to own its properties;
(c) The Company has full power, authority and legal right to
execute and deliver the Amendment and to perform and observe the terms
and provisions thereof. The execution, delivery and performance by the
Company of its obligations under the Amendment have been duly authorized
by the proper corporate proceedings and do not contravene any provision
of applicable law or regulation or of the certificate of incorporation
or by-laws of the Company or any Subsidiary, or any order of any court,
regulatory body or arbitral tribunal or any judgment, order or decree,
or, to my knowledge after due inquiry, any agreement or instrument,
binding on the Company or any Subsidiary, or, to my knowledge after due
inquiry, result in the creation of any lien, charge or encumbrance upon
any of their respective properties or assets pursuant to any agreement
or instrument to which any of them is a party or binding upon any of
them;
(d) The Amendment constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms;
(e) There are, to my knowledge after due inquiry, no suits,
proceedings or actions at law or in equity or by or before any
governmental commission, board, bureau or other administrative agency
pending or threatened against or affecting the Company or any
Subsidiary, (i) in which there is a reasonable possibility of an adverse
decision which is likely to materially and adversely affect the
financial condition or business of the Company and its Subsidiaries,
taken as a whole or (ii) which will in any manner affect the
enforceability or validity of the Amendment;
(f) No approval, consent or authorization of or filing or
registration with any state or federal agency or regulatory authority is
necessary for the execution or delivery by the Company of the Amendment,
for the validity or enforceability of the Amendment or for the
performance by the Company of any of the terms or conditions thereof.
To the Banks and Agent
December _____, 1994
Page 3
The opinion expressed in paragraph (d) above is subject to the
qualification that the enforcement of the rights and remedies under the
Amendment is subject to the effect of applicable bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights generally,
and to general principles of equity, whether applied in a proceeding at law or
in equity.
Sincerely,
Xxxxx X. Xxxxxxxxx
Associate General Counsel
BJS/chc
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of September 28, 1995
(this "Amendment") is by and among MASCOTECH, INC., a Delaware corporation,
the Banks, NBD BANK, formerly known as NBD Bank, N.A., a Michigan banking
corporation, as Agent for the Banks, and COMERICA BANK, a Michigan banking
association, THE BANK OF NEW YORK, a New York banking corporation, THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, a New York banking association, and NATIONSBANK
OF
NORTH CAROLINA, N.A., a national banking association, as Co-Agents.
RECITALS
A. The Company, the Banks, the Agent and the Co-Agents are parties to
a Credit Agreement dated as of September 2, 1993, as amended by a First
Amendment to Credit Agreement dated as of June 29, 1994 and a Second Amendment
to Credit Agreement dated as of December 21, 1994. Capitalized terms used but
not defined in this Amendment shall have the respective meanings ascribed
thereto in such Agreement.
B. The Company, the Banks, the Agent and the Co-Agents are willing to
amend the Agreement as set forth herein.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties hereby agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in
Article III hereof, the Agreement shall be amended as follows:
1.1 Reference in Section 7.4 to "2.0 to 1.0" shall be deleted and
"1.25 to 1.0" shall be substituted in place thereof.
1.2 Clause (a) of Section 7.8 is restated in its entirety as follows:
(a) The Company will not permit or suffer the Senior
Debt Coverage Ratio to be greater than (i) 5.50 to
1.00 at any time during the period from the Closing
Date to the Relevant Day immediately following
December 31, 1995, and (ii) 5.00 to 1.00 on the
Relevant Day immediately following December 31, 1995
or at any time thereafter.
Reference in Section 7.8(c)(vi) to "3.75" shall be deleted and
"5.50" shall be substituted in place thereof.
Reference in Section 7.8(c)(vii) to "3.50" shall be deleted and
"4.0" shall be substituted in place thereof.
ARTICLE II. REPRESENTATIONS. The Company represents and warrants that:
2.1 The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate action and do
not and will not violate the provisions of any applicable law or regulation or
of the certificate of incorporation or bylaws of the Company or any Subsidiary
or any order of any court, regulatory body or arbitral tribunal and do not and
will not result in the breach of, or constitute a default or require any
consent under, or create any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to, any indenture or other
agreement or instrument to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary or its property may be bound or
affected. The execution, delivery and performance of this Amendment do not
require, for the validity thereof, nor does the enforceability of this
Amendment require, any filing with, or consent, authorization or approval of,
any state or federal agency or regulatory authority, other than filings,
consents or approvals which have been made or obtained.
2.2 This Amendment constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article VI of the Agreement are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof.
2.4 As of the date hereof, there is no Default.
THIRD AMENDMENT TO CREDIT AGREEMENT Page 2
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until the following shall have been delivered to the Agent:
3.1 This Amendment duly executed on behalf of the Company and the
Required Banks.
3.2 A copy of the resolutions adopted by the Board of Directors of the
Company, certified by an officer of the Company as being true and correct and
in full force and effect without amendment as of the date hereof, authorizing
the Company to enter into this Amendment.
3.3 An opinion of counsel for the Company in the form of Schedule 3.3
hereto.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Agreement or in any note, certificate,
instrument or other document to the Agreement shall be deemed to be references
to the Agreement as amended from time to time.
4.2 The Company agrees to pay and to save the Agent harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Agent in connection with
preparing this Amendment and the related documents.
4.3 The Company agrees that the Agreement and other documents and
agreements executed by the Company in connection with the Agreement in favor
of the Agent, the Co-Agents and/or the Banks are ratified and confirmed and
shall remain in full force and effect, except as expressly amended hereby.
4.4 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument, and telecopied signatures shall be effective.
4.5 This Amendment is a contract made under, and shall be governed by
and construed in accordance with, the law of the State of Michigan applicable
to contracts made and to be performed entirely within such State and without
giving effect to choice of law principles of such State.
THIRD AMENDMENT TO CREDIT AGREEMENT Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the day and year first above written.
NBD BANK MASCOTECH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx Xxxxxxx Xxxxxxx
Its: Vice President Its: Vice President-
Controller and Treasurer
THE BANK OF NEW YORK COMERICA BANK
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
THE FIRST NATIONAL BANK XXXXXX GUARANTY TRUST
OF CHICAGO COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Its: Vice President Its: Vice President
NATIONSBANK OF NORTH BANK OF AMERICA ILLINOIS
CAROLINA, N.A.
By: /s/ Nationsbank of North By: /s/ Xxxxxx X. Xxxxxxxxx
Carolina, N.A.
Its: Its: Vice President
THIRD AMENDMENT TO CREDIT AGREEMENT Page 4
PNC BANK, NATIONAL ASSOCIATION BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Assistant Vice President Its: Vice President
MICHIGAN NATIONAL BANK ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Royal Bank of Canada
Xxxxxx X. Xxxxxxxx
Its: Second Vice President Its:
NATIONAL CITY BANK THE FUJI BANK, LTD.
By: /s/ National City Bank By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Its: _____________________________ Its: Joint General Manager
FIRST BANK NATIONAL CITIBANK, N.A.
ASSOCIATION
By: /s/ Xxxxxxx X. XxXxxxxxx By:
Its: Vice President Its:
CIBC INC. WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx X. Xxxx
Its: Vice President Its: Senior Vice President
THIRD AMENDMENT TO CREDIT AGREEMENT Page 5
CORESTATES PHILADELPHIA SHAWMUT BANK
NATIONAL BANK CONNECTICUT, N.A.
By: /s/ Xxx Xxxxx Xxxxxxxxxxx By: /s/ Xxxxxx Xxxx
Xxx Xxxxx Xxxxxxxxxxx
Its: Assistant Vice President Its: Director
FIRST NATIONAL BANK THE SANWA BANK, LIMITED,
OF BOSTON CHICAGO BRANCH
By: /s/ Xxx Xxxxx By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Its: Director Its: Vice President
THIRD AMENDMENT TO CREDIT AGREEMENT Page 6
Schedule 3.3
______________, 1995
To the Banks, Co-Agents and Agent party
to the Credit Agreement described herein, in
care of NBD Bank, as Agent
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Third Amendment to Credit Agreement, dated as
of ______, 1995 (the "Amendment"), by and among MascoTech, Inc., a Delaware
corporation (the "Company"), the Banks and the Co-Agents party thereto, and
NBD Bank, as Agent for the Banks. I am the Associate General Counsel for the
Company, and in the capacity of counsel for the Company I have been requested
by the Company to give my opinion pursuant to Section 3.3 of the Amendment.
For purposes of this opinion, the terms used in this opinion which are not
defined herein shall have the respective meanings set forth in the Agreement.
I or members of the legal staff of the Company have examined originals
or copies of all such documents, corporate records and other instruments of
the Company, and have made such investigations of fact and law, as I have
deemed necessary or advisable for purposes of this opinion.
Based upon the foregoing, it is my opinion that:
(a) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and is duly
authorized to do business and is in good standing in the State of Michigan;
(b) The Company has all requisite corporate power and authority
to conduct its business substantially as now being conducted and to own its
properties;
(c) The Company has full power, authority and legal right to
execute and deliver the Amendment and to perform and observe the terms and
provisions thereof. The
To the Banks, Co-Agent and Agent
______________, 1995
Page 2
execution, delivery and performance by the Company of its obligations under
the Amendment have been duly authorized by the proper corporate proceedings
and do not contravene any provision of applicable law or regulation or of the
certificate any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Company of any Subsidiary, or
any order of any court, regulatory body or arbitral tribunal or any judgment,
order or decree, or, to my knowledge after due inquiry, any agreement or
instrument, binding on the Company or any Subsidiary, or, to my knowledge
after due inquiry, result in the creation of any lien, charge or encumbrance
upon any of their respective properties or assets pursuant to any agreement or
instrument to which any of them is a party or binding upon any of them;
(d) The Amendment constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms;
(e) There are, to my knowledge after due inquiry, no suits,
proceedings or actions at law or in equity or by or before any governmental
commission, board, bureau or other administrative agency pending or threatened
against or affecting the Company or any Subsidiary, (i) in which there is a
reasonable possibility of an adverse decision which is likely to materially
and adversely affect the financial condition or business of the Company and
its Subsidiaries, taken as a whole or (ii) which will in any manner affect the
enforceability or validity of the Amendment;
(f) No approval, consent or authorization of or filing or
registration with any state or federal agency or regulatory authority is
necessary for the execution or delivery by the Company of the Amendment, for
the validity or enforceability of the Agreement or for the performance by the
Company of any of the terms or conditions thereof.
The opinion expressed in paragraph (d) above is subject to the
qualification that the enforcement of the rights and remedies under the
Amendment is subject to the effect of applicable bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights generally,
and to general principles of equity, whether applied in a proceeding at law or
in equity.
Sincerely,
Xxxxx X. Xxxxxxxxx
Associate General Counsel
BJS/kbd
