FOURTH AMENDMENT (this "Amendment") dated as
of December 22, 1998 to the Amended and Restated
Credit Agreement dated as of January 31, 1997 (as
amended, the "Credit Agreement"; capitalized terms
used and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement, as
amended hereby), among American Standard Companies
Inc. ("Holding"); American Standard Inc. ("ASI"); the
Subsidiaries of ASI listed in Schedule I thereto (the
"Subsidiary Borrowers" and, together with ASI, the
"Borrowers"); the financial institutions party
thereto (the "Lenders"); The Chase Manhattan Bank, as
administrative agent for the Lenders (in such
capacity, the "Administrative Agent"); Citibank,
N.A., as Documentation Agent (the "Documentation
Agent"); and The Bank of Nova Scotia and Nationsbank,
N.A., as Co-Syndication Agents (the "Co-Syndication
Agents" and, together with the Documentation Agent
and the Administrative Agent, the "Agents").
ASI, Holding and the Subsidiary Borrowers have requested that
the Credit Agreement be amended to (a) to permit ASI to issue and sell up to
$500,000,000 aggregate principal amount of its senior unsecured and/or
subordinated unsecured debt securities to be unconditionally guaranteed by
Holding, (b) permit proceeds of Loans to be used to make optional sinking fund
payments in an aggregate principal amount not to exceed $15,000,000 in any
fiscal year in respect of the 9-1/4% Sinking Fund Debentures, (c) modify certain
financial covenants and (d) provide for the introduction of the euro by
participating member states of the European Union. ASI, Holding and the
Subsidiary Borrowers have further requested that the Credit Agreement be amended
to permit the Reorganization (as defined in Article I below). The Lenders and
the Agents have agreed to such amendments upon the terms and subject to the
conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
For purposes of this Fourth Amendment, the following terms shall
have the meanings set forth below:
"Reorganization" shall mean a series of transactions, all of
which shall be completed no later than January 15, 2000, pursuant to
which (a) ASI will effect the following transfers in the following
order: (i) first, to ASINC, all of its trademarks, tradenames, service
marks and other similar intellectual property and related rights, (ii)
following the completion of the transactions described in clause (i),
to ASB, territorial licenses to use all of the foregoing in the United
States, (iii) following the completion of the transactions described in
clause (ii), the capital stock of The Trane Company, Trane Export Inc.,
WABCO Company, Standard Sanitary Manufacturing Company, WABCO Standard
Trane Holdings, Inc. and the foreign subsidiaries listed on Schedule I
hereto to ASII and (iv) following the completion of the transactions
described in clause (iii), the capital stock of ASII to Holding, all
with the result that the corporate structure of Holding and its
subsidiaries will be as set forth in Schedule II hereto and (b) all
Liens on any capital stock existing under the Security Documents and
all Guarantees under the Guarantee Documents will remain in full force
and effect notwithstanding the transfer of the capital stock of any
Guarantor, grantor or pledged entity."
"Restricted Group" shall mean each of ASII and Trane Export
Inc., The Trane Company, WABCO Company, Standard Sanitary Manufacturing
Company, WABCO Standard Trane Holdings, Inc., American Standard
Incorporated and American Standard Trane Brands, Inc.
"Spin-Off" shall mean the consummation of the transaction
described in clause (a) (iv) of the definition of Reorganization.
ARTICLE II. MISCELLANEOUS AMENDMENTS
SECTION 2.01. Amendment of Article I. The following new
definition is hereby inserted in its proper alphabetical position in Article I
of the Credit Agreement:
"1998 Debt Securities" shall mean senior unsecured and/or
subordinated unsecured debt securities of ASI in an aggregate principal
amount not greater than $500,000,000, not maturing or subject to any
sinking fund or any mandatory redemption, prepayment, repurchase or
defeasance requirement prior to February 1, 2002, and unconditionally
guaranteed by Holding but not by any Subsidiary of ASI.
SECTION 2.02. Amendment of Section 3.04(a). Section 3.04(a) of
the Credit Agreement is hereby amended by the insertion of the following
sentence at the end of such Section:
"Notwithstanding the foregoing, ASI may use the proceeds of
borrowings hereunder in an aggregate amount not to exceed $15,000,000
in any fiscal year to make optional sinking fund payments with respect
to its 9-1/4% Sinking Fund Debentures."
SECTION 2.03. Amendment of Article III. Article III of the
Credit Agreement is hereby amended by adding a new Section 3.21 that reads in
its entirety as follows:
"SECTION 3.21. Year 2000. ASI and its Subsidiaries have
undertaken a good faith effort, and made such inquiries as in their
judgment are prudent, to identify and provide for the correction of and
all reprogramming required to permit the proper functioning, in and
following the year 2000, of (i) each Credit Party's computer systems
and equipment containing embedded microchips (including systems and
equipment supplied by others or with which such Credit Party's systems
interface) with the intent, as of December 22, 1998, of providing that
the testing of all such systems and equipment, as so corrected or
reprogrammed, will be completed by September 30, 1999. Neither ASI nor
any other Credit Party has reason to believe that the cost to any
Credit Party of such correction or reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 computer readiness to
such Credit Party (including, without limitation, correction and
reprogramming errors and the failure of others' (excluding the Lenders)
systems or equipment) will result in a Default or a Materially Adverse
Effect. To the best knowledge of ASI and each other Credit Party,
except for such of the correction and reprogramming referred to in the
preceding sentence as may be necessary, the computer and management
information systems of each Credit Party and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the
term of this Agreement to be, sufficient to permit such Credit Party to
conduct its business without a Materially Adverse Effect."
SECTION 2.04. Amendment to Section 6.04(d). Section 6.04(d) of
the Credit Agreement is hereby amended to read in its entirety as follows:
"(d) (i) the 1998 Debt Securities and the guarantee thereof by
Holding; (ii) the New Debt Securities and the guarantee thereof by
Holding; provided that any Net Cash Proceeds thereof in excess of
$150,000,000 are used on or prior to December 31, 1998, and such
remaining $150,000,000 of Net Cash Proceeds are used on or prior to
June 1, 1999, in either case to purchase pursuant to a tender offer or
to redeem the 10-1/2% Senior Subordinated Discount Debentures, the
10-7/8% Senior Notes or ASI's 9-7/8% Senior Subordinated Notes due 2001
and, pending any such redemption, to temporarily prepay Revolving
Credit Loans outstanding under the Credit Agreement and (iii) other
Indebtedness of ASI the Net Cash Proceeds of which are used (x) to
finance the acquisition, redemption or prepayment of Indebtedness or
(y) to refinance any Indebtedness issued to finance the acquisition or
prepayment of the 10-7/8% Senior Notes; so long as (A) if the
Indebtedness so acquired, redeemed or prepaid is outstanding under any
revolving credit or similar commitment other than the Credit Agreement,
such commitment is permanently reduced by an amount equal to the amount
of such acquisition, redemption or prepayment, and (B) any such new
Indebtedness referred to in this clause (iii) is subordinated to the
Obligations to at least the same extent, if any, and is otherwise on
terms (including maturity, interest rate, amortization and prepayment
and redemption requirements, and, in the good faith judgment of ASI,
covenants and events of default) at least as favorable to ASI and the
Lenders as the Indebtedness being acquired, redeemed or prepaid and, in
the case of Indebtedness permitted under clause (iii)(y), such
Indebtedness is issued no later than June 30, 1998;".
SECTION 2.05. Amendment of Section 6.10. Section 6.10 of the
Credit Agreement is hereby amended by amending the table to read in its entirety
as follows:
"Measuring Date Ratio
Last day of March in the year 1997 4.25:1
Last day of December in the year 1997 3.50:1
Last day of June in the year 1998 3.25:1
Last day of December in the year 1998 3.50:1
Last day of March in the year 1999 3.75:1
Last day of September in the year 1999 3.5:1
Last day of December in the year 1999 3.25:1
Last day of December in the year 2000 3.00:1
Last day of December in the year 2001 2.75:1
and last day of each fiscal quarter thereafter"
SECTION 2.06. Amendment of Section 6.11. Section 6.11 of the
Credit Agreement is hereby amended by amending the table to read in its entirety
as follows:
"Measuring Date Ratio
Last day of March in the year 1997 1.75:1
Last day of December in the year 1997 2.00:1
Last day of June in the year 1998 2.25:1
Last day of December in the year 1998 2.25:1
Last day of March in the year 1999 2.10:1
Last day of September in the year 1999 2.20:1
Last day of December in the year 1999 2.50:1
Last day of December in the year 2000 2.75:1
Last day of June in the year 2001 3.25:1
and last day of each fiscal quarter thereafter"
SECTION 2.07. Amendment of Article X. Article X of the Credit
Agreement is hereby amended by adding a new Section 10.21 that reads in its
entirety as follows:
"SECTION 10.21. European Economic and Monetary Union. (a)
Definitions. In this Section 10.21 and in each other provision of
this Agreement to which reference is made in this Section 10.21
expressly or impliedly, the following terms have the meanings
given to them in this Section 10.21:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this Agreement
expected to be January 1, 1999) or the date on which circumstances
arise which (in the opinion of the Administrative Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated
by the Treaty on European Union.
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single
or unified European currency (whether known as the euro or otherwise),
being in part the implementation of the third stage of EMU;
"euro" means the single currency of participating member
states of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state;
"participating member state" means each state so described
in any EMU legislation;
"Target Operating Day" means any day that is not (i) a
Saturday or Sunday, (ii) Christmas Day or New Year's Day or (iii) any
other day on which the Trans European Automated Real-Time Gross
Settlement Express Transfer System ("Target") (or any successor
settlement system) is not operating (as determined by the
Administrative Agent; and
"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.
(b) Effectiveness of Provisions. The provisions of paragraphs
(c) to (j) below (inclusive) shall be effective at and from the commencement of
the third stage of EMU, provided, that if and to the extent that any such
provision relates to any state (or the currency of such state) that is not a
participating member state on the commencement of the third stage of EMU, such
provision shall become effective in relation to such state (and the currency of
such state) at and from the date on which such state becomes a participating
member state.
(c) Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a participating member state shall be
redenominated into the euro unit in accordance with EMU legislation, provided,
that if and to the extent that any EMU legislation provides that following the
commencement of the third stage of EMU an amount denominated either in the euro
or in the national currency unit of a participating member state and payable
within that participating member state by crediting an account of the creditor
can be paid by the debtor either in the euro unit or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member
state shall be made in the euro unit.
(e) Business Days. (i) With respect to any amount denominated
or to be denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in
(A) London, New York City and, in the case of any Loan or
Borrowing, any other financial center in which funding or
payment of such Loan or Borrowing is to occur in accordance
with the terms of this Agreement, and
(B) Frankfurt am Main, Germany (or such principal financial
center or centers in such participating member state or
states as the Administrative Agent may
from time to time nominate for this purpose).
(ii) For purposes of determining any date on which the LIBO
Rate is determined under this Agreement for any Loan denominated in the euro (or
any national currency unit) for any Interest Period therefor and for purposes of
determining the first and last day of any Interest Period, references in this
Agreement to "Business Days" shall be deemed to be references to "Target
Operating Days".
(f) Payments to the Administrative Agent. Sections 2.02 and
2.17 shall be construed so that, in relation to the payment of any amount of
euro units or national currency units, such amount shall be made available to
the Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
(g) Payments by the Administrative Agent to the Lenders. Any
amount payable by the Administrative Agent to the Lenders under this Agreement
in the currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With
respect to the payment of any amount denominated in the euro or in a national
currency unit, the Administrative Agent shall not be liable to any Borrower or
any of the Lenders in any way whatsoever for any delay, or the consequences of
any delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent if the Administrative Agent
shall have taken all relevant steps to achieve, on the date required by this
Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be, in a
national currency unit) to the account with the bank in the principal financial
center in the participating member state which any Borrower or, as the case may
be, any Lender shall have specified for such purpose. In this paragraph (h),
"all relevant steps" means all such steps as may be prescribed from time to time
by the regulations or operating procedures of such clearing or settlement system
as the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or
Fees expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London Interbank Market or, as the case may be, the Paris
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or rounding prescribed by
any EMU legislation and without prejudice to the respective liabilities for
indebtedness of any Borrower to the Lenders and the Lenders to any Borrower
under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid to
or by the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(ii) except as expressly provided in this Section 10.21, each
provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time
specify to be necessary or appropriate to reflect the introduction of
or changeover to the euro in participating member states.
(k) Increased Costs. Each Borrower shall from time to time, at
the request of the Administrative Agent, pay to the Administrative Agent for the
account of each Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction of, changeover to
or operation of the euro in any participating member state.
(l) Section 2.02(c). The phrase "the financial center of the
country of the currency of such Loan" in Section 2.02(c) of the Agreement will
be deemed, with respect to any Loan denominated in the euro, to read "the
financial center of any county that has adopted the currency of such Loan."
ARTICLE III. CONSENT AND AMENDMENTS RELATING TO REORGANIZATION
The undersigned Lenders hereby consent to, and agree that
nothing in Section 6.02 shall prohibit, the completion of the Reorganization,
and ASI agrees that the Reorganization, if commenced, will be completed in
accordance with the definition thereof not later than January 15, 2000. At such
time the Spin-Off has been completed, the Credit Agreement shall be amended
without further action on the part of the parties thereto as set forth in the
succeeding paragraphs of this Article III:
(a) Each reference to "ASI" (other than any such reference
referred to in Section 1.03 of the Credit Agreement added pursuant to
paragraph (e) below) will be changed to a reference to "each of ASI and
ASII" in the definitions of:
Cash Available for Principal Payments; Change in Control;
Domestic Obligations; Guarantor; Materially Adverse Effect;
Net Joint Venture Investments; and Working Capital and in
Sections 2.11(d) (third and sixth references); 3.04(b);
3.08(b); 3.08(d) ; 3.09 (first and third references); 3.20
(second reference); 3.21; 4.01; Article V, paragraph A (second
reference only); 5.11(a)(ii); 6.05(c) (first reference),
6.07(a); 6.08(d); 6.09(b); Article VI, paragraph B and 10.01
(and any reference in any of the foregoing sections to "ASI
and its Subsidiaries" will be changed to a reference to "ASI
and ASII and their respective Subsidiaries").
(b) Each reference to "ASI" (other than any such reference
referred to in Section 1.03 of the Credit Agreement added pursuant to
paragraph (e) below) will be changed to a reference to "either of ASI
or ASII" in the definitions of:
Applicable Rate (first reference); Capital Expenditures;
Designated Subsidiary; Domestic Subsidiary; Excluded
Subsidiary; Foreign Subsidiary; Guarantee; Indebtedness;
Intercompany Indebtedness; Intercompany Merger and Transfer
Conditions, clause (B),(C) and (D); Investment; LDC Holding
Company; Net Cash Proceeds; Non-Material Subsidiary; Pension
Plan; Perfection Certificate; Permitted Encumbrances, clauses
(v) and (vi); Prepayment Event; Real Property; Reporting
Divisions; Restricted Junior Payment and Subsidiary and in
Sections 3.01; 3.04(a)(clause E only); 3.08(e); 3.09 (second
reference); 3.13; 3.19; 3.20 (first reference); 5.01(e);
5.01(f); 5.01(g); 5.01(h); 5.11(a)(i); 5.11(b)(ii) (other than
the first reference); Article VI, paragraph A, second
reference only; 6.01; 6.02(a); 6.03(f), (i), (j), (n), 6.04
(d), (e), (g), (h), (l), (n), (o) through (s), (u);
6.05(b),(c) (second reference), (f), (g), (l), (m); 6.07(c);
6.08(a), (e), (i), (f) and the two sentences following clause
(h); 6.09 lead-in; last sentence of 6.10 (first reference);
6.13; 6.14; 6.15; 6.17; 7.03 (second reference); 7.04 (other
than the second reference which will be deemed to be a
reference to "ASI and ASII "); Article VII, first two
references in final paragraph (i) and 10.10(c) (second and
third references).
(c) the definition of "EEIG" is hereby amended to read as
follows:
"EEIG" shall mean Standard Europe, a European
Economic Interest Grouping initially organized by French and
Italian Subsidiaries of ASI to act as a Borrower hereunder.
(d) the definition of "Index Debt" is hereby amended to read
as follows:
"Index Debt" shall mean the senior unsecured
non-credit enhanced (with any guarantee by Holding not deemed
to be credit enhancement for this purpose) long-term public
indebtedness for borrowed money of ASI.
(e) the definition of "Subsidiary" is hereby amended to read
as follows:
"Subsidiary" shall mean, with respect to any
Borrower, any subsidiary of such Borrower. Unless otherwise
specified, references to Subsidiaries generally shall be
deemed to refer to subsidiaries of ASI and subsidiaries of
ASII.
(f) the following definitions are added in the appropriate
alphabetical order in Article I:
"ASB" shall mean American Standard Trane Brands,
Inc., a Delaware corporation and a wholly owned subsidiary of
ASINC.
"ASINC" shall mean American Standard Incorporated, a
Delaware corporation and a wholly owned subsidiary of ASII.
"Fourth Amendment" shall mean the Fourth Amendment
dated as of December 22, 1998 to this Agreement.
"Reorganization" shall have the meaning assigned to such
term in the Fourth Amendment.
"Restricted Group" shall have the meaning assigned to
such term in the Fourth Amendment.
"Spin-Off" shall have the meaning assigned to such term in
the Fourth Amendment.
(g) Article I of the Credit Agreement is hereby amended by
adding a new Section 1.03 that reads in its entirety as follows:
"SECTION 1.03. Financial Terms Following Reorganization. All
references in financial terms or definitions, financial covenants and
financial statement delivery requirements to consolidated statements of
ASI or consolidated amounts of ASI (or to amounts of ASI and its
Subsidiaries or Consolidated Subsidiaries) will be deemed to be
references to combined consolidated statements of ASI and ASII or
combined consolidated amounts of ASI and ASII, as the case may be;
provided that all numbers and financial baskets will remain unchanged
as in effect prior to the Spin-Off and will apply in the aggregate to
ASI and ASII."
(h) Section 6.02(a)(i)(C) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(C) ASI or any Subsidiary may transfer assets to any
Designated Subsidiary or to ASI; and"
(i) Section 6.08(g) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(g) (i) advances made or cash dividends paid by ASI or ASII
to Holding to the extent the amounts received by Holding are paid by
Holding to ASII or ASI, respectively, within 5 Business Days of its
receipt thereof and (ii) advances made or cash dividends paid to
Holding which advances or dividends are used to exercise rights or to
satisfy liabilities or pay expenses of Holding incurred in compliance
with Article VI.B, including any payments due under agreements and
arrangements permitted by Article VI.B, taxes, liabilities incurred in
connection with the registration or issuance of its capital stock or
compliance with reporting obligations arising therefrom, or customary
indemnification obligations to officers and directors; and
(j) The following new Section 6.18 is hereby inserted at the
end of Article VI of the Credit Agreement:
"SECTION 6.18. Restricted Group. Holding covenants and agrees
that it shall cause each member of the Restricted Group (a) to engage
only in those activities in which such member was engaged immediately
prior to the Spin-Off; provided, that such member may also serve as a
holding company for Foreign Subsidiaries engaged in businesses not
inconsistent with Section 6.1, (b) to continue at all times to be at
least a direct Designated Subsidiary of ASII with the remaining capital
stock owned by another Designated Subsidiary and (c) not to incur,
create, assume or permit to exist any Indebtedness other than (i)
Indebtedness outstanding on the date of the Fourth Amendment (including
the Obligations) and (ii) Indebtedness owed to Holding, ASI or a
Domestic Subsidiary of ASI that is evidenced by one or more promissory
notes that are pledged as security for the Obligations under a Pledge
Agreement in form and substance satisfactory to the Administrative
Agent."
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Each of Holding, ASI and the other Borrowers hereby represents
and warrants (but, in the case of representations and warranties relating to
Credit Parties and their Subsidiaries, only as to itself and its Subsidiaries,
it being understood that Holding and ASI make all representations and warranties
as to all parties) to each Lender and the Administrative Agent that this
Amendment (a) has been duly authorized, executed and delivered by Holding, ASI
and each other Borrower or Credit Party and constitutes the legal, valid and
binding obligation of each such person enforceable against it in accordance with
its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforceability of creditors' rights generally and by general
principles of equity, and (b) will not conflict in any respect material to the
rights or interests of the Lenders with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute (with notice or
lapse of time or both) a default under, or result in a required prepayment of,
or (other than as permitted by the Credit Agreement as amended hereby or as
contemplated by the Security Documents) result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the properties or
assets of any Credit Party or any of its Subsidiaries pursuant to the terms of,
any indenture, mortgage, deed of trust, agreement or other instrument to which
any Credit Party is a party or by which it may be subject.
ARTICLE V. EFFECTIVENESS
SECTION 5.01. Effectiveness of Article II Amendments. The
Amendments provided for in Article II of this Fourth Amendment shall become
effective on a date (the "Article II Effective Date") when the following
conditions precedent shall have been satisfied:
(a) the Administrative Agent shall have received, on behalf of
the Lenders, an Officer's Certificate of ASI, dated the Article II
Effective Date, confirming compliance with the conditions precedent set
forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement
insofar as such conditions precedent relate to ASI and its
subsidiaries;
(b) all legal matters incidental to this Amendment shall be
satisfactory to the Administrative Agent and to Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent; and
(c) the signature lines at the foot of this Amendment shall
have been executed by Lenders sufficient to effect this Amendment under
the terms of the Credit Agreement; and
(d) ASI shall have paid to the Administrative Agent, for the
account of each Lender, a non-refundable amendment fee in an amount
equal to .20%of such Lender's Total Commitment as of the Article II
Effective Date; provided that ASI shall have no liability for any such
amendment fee if this Amendment does not become effective. Such
amendment fee shall be payable in immediately available funds on the
Article II Effective Date.
SECTION 5.02. Effectiveness of Article III Amendments. The
consent provided for in Article III of this Fourth Amendment shall become
effective on the date hereof and the amendments provided for in Article III of
this Fourth Amendment shall become effective on a date (the "Article III
Effective Date") when the following conditions precedent shall have been
satisfied:
(a) the Administrative Agent shall have received, on behalf of
the Lenders, an Officer's Certificate of ASI, dated the Article III
Effective Date, confirming compliance with the conditions precedent set
forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement
insofar as such conditions precedent relate to ASI and its
subsidiaries;
(b) all legal matters incidental to this Amendment shall be
satisfactory to the Administrative Agent and to Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent;
(c) the 10-7/8% Senior Notes shall have been redeemed in full;
(d) pursuant to Section 5.11 of the Credit Agreement, each of
ASINC and ASB shall have executed and delivered to the Administrative
Agent a Supplemental Guarantee, substantially in the form of Exhibit
H-1 to the Credit Agreement;
(e) pursuant to Section 5.11 of the Credit Agreement, each of
ASII and ASINC shall have executed and delivered to the Administrative
Agent a Supplemental Securities Pledge Agreement pursuant to which (x)
ASII shall have granted to the Administrative Agent for the benefit of
the Lenders a perfected security interest in the capital stock of ASINC
and (y) ASINC shall have granted to the Administrative Agent for the
benefit of the Lenders a perfected security interest in the capital
stock of ASB, together with undated stock powers;
(f) pursuant to Section 6.18 of the Credit Agreement, each
member of the Restricted Group shall have executed and delivered to the
Administrative Agent a Pledge Agreement in form and substance
satisfactory to the Administrative Agent pursuant to which such member
shall have granted to the Administrative Agent for the benefit of the
Lenders a perfected security interest in any Indebtedness owed to
Holding, ASI or a Domestic Subsidiary of ASI, together with a
promissory note evidencing such Indebtedness and undated instruments of
assignment;
(g) the Article II Effective Date shall have occurred;
(h) the Spin-Off shall have occurred;
(i) Each Guarantor or Pledgor involved in the Reorganization
shall have executed and delivered an instrument satisfactory to the
Administrative Agent acknowledging the continued effectiveness
commencing upon the completion of the Spin-Off and at all times
thereafter of all its existing pledges and guarantees of the
Obligations, including any future advances under the Credit Documents ;
and
(j) the Administrative Agent shall have received a legal
opinion of Xxxxxxx X. Xxxxxxx, addressed to the Issuing Banks, the
Administrative Agent and the Lenders, as to such matters as the
Administrative Agent may reasonably request.
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. Further Assurances Relating to the
Reorganization. (a) Holding agrees that promptly upon the consummation of the
Spin-Off and pursuant to Section 5.11 of the Credit Agreement, it will grant to
the Administrative Agent for the benefit of the Lenders a perfected security
interest in the capital stock of ASII pursuant to a Supplemental Securities
Pledge Agreement, together with undated stock powers.
(b) Each of Holding, ASII and ASI confirms that, pursuant to
Section 5.11 of the Credit Agreement, it will, and that it will cause any
Subsidiary to, pledge to the Administrative Agent all shares of capital stock of
any subsidiary that it did not own prior to the commencement of the
Reorganization and that it owns upon completion of the Spin-Off.
(c) Each of Holding, ASI and ASII agrees that, from time to
time at the request of the Administrative Agent or the Required Lenders, it will
promptly deliver a detailed, written report on the status of the Reorganization
and take such actions as the Administrative Agent or the Required Lenders may
request to perfect or maintain the Liens or maintain the Guarantees contemplated
by the Credit Agreement, as amended by the Fourth Amendment.
SECTION 6.02. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.03. Expenses. ASI shall pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, execution, delivery and enforcement of this
Amendment, including, but not limited to, the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the Administrative Agent.
The agreement set forth in this Section 6.02 shall survive the termination of
the Credit Agreement.
SECTION 6.04. Counterparts. This Amendment may be executed
in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute
but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers,
all as of the date first above written.
AMERICAN STANDARD COMPANIES INC.,
by
Name:
Title:
AMERICAN STANDARD INC.,
by
Name:
Title:
AMERICAN STANDARD CREDIT INC.,
by
Name:
Title:
WABCO STANDARD GMBH,
by
Name:
Title:
AMERICAN STANDARD (UK) CO.,
by
Name:
Title:
STANDARD EUROPE, a European Economic
Interest Grouping,
by
Name:
Title:
WABCO STANDARD TRANE INC.,
by
Name:
Title:
WABCO STANDARD TRANE B.V.,
by
Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by
Name:
Title:
CITIBANK, N.A., individually and as
Documentation Agent,
by
Name:
Title:
THE BANK OF NOVA SCOTIA, individually and as
Co-Syndication Agent,
by
Name:
Title:
BANK OF AMERICA NT & SA, individually and as
Co-Syndication Agent,
by
Name:
Title:
BANKERS TRUST COMPANY,
by
Name:
Title:
NATIONSBANK, N.A., individually and as
Co-Syndication Agent,
by
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCH,
by
Name:
Title:
by
Name:
Title:
THE BANK OF NEW YORK,
by
Name:
Title:
BANQUE PARIBAS,
by
Name:
Title:
by
Name:
Title:
CIBC INC.,
by
Name:
Title:
CIBC WOOD GUNDY plc,
by
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
by
Name:
Title:
by
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
by
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
by
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN, LIMITED,
by
Name:
Title:
THE SANWA BANK LIMITED, NEW YORK BRANCH,
by
Name:
Title:
THE SUMITOMO BANK, LTD.,
by
Name:
Title:
THE TORONTO-DOMINION BANK,
by
Name:
Title:
ABN AMRO BANK N.V., NEW YORK BRANCH,
by
Name:
Title:
by
Name:
Title:
ALLIED IRISH BANK plc, CAYMAN ISLANDS BRANCH,
by
Name:
Title:
by
Name:
Title:
ARAB BANKING CORPORATION,
by
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
by
Name:
Title:
by
Name:
Title:
BANK OF MONTREAL,
by
Name:
Title:
BANK OF SCOTLAND,
by
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
by
Name:
Title:
CREDIT AGRICOLE,
by
Name:
Title:
UNICREDITO ITALIANO, SpA,
by
Name:
Title:
by
Name:
Title:
FLEET NATIONAL BANK,
by
Name:
Title:
LLOYDS BANK, PLC,
by
Name:
Title:
by
Name:
Title:
XXXXXX BANK LTD.,
by
Name:
Title:
by
Name:
Title:
NATIONAL CITY BANK,
by
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
by
Name:
Title:
THE SAKURA BANK, LIMITED,
by
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by
Name:
Title:
COMERICA BANK,
by
Name:
Title:
ERSTE BANK,
by
Name:
Title:
FIRST UNION NATIONAL BANK,
by
Name:
Title:
STANDARD CHARTERED BANK,
by
Name:
Title:
by
Name:
Title:
THE SUMITOMO TRUST AND BANKING CO., LTD., NEW YORK BRANCH,
by
Name:
Title:
THE TOKAI BANK, LIMITED, NEW YORK BRANCH,
by
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON,
by
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
by
Name:
Title:
BAYERISCHE HYPO -- und VEREINSBANK AG, New York Branch,
by
Name:
Title:
DAI-ICHI KANGYO BANK, LIMITED,
by
Name:
Title:
FUJI BANK LIMITED,
by
Name:
Title:
TOYO TRUST & BANKING CO., LTD.,
by
Name:
Title:
NATEXIS BANQUE BFCE,
by
Name:
Title:
MARINE MIDLAND BANK, N.A.
by
Name:
Title:
Accepted and Acknowledged as of the date first above written:
AMERICAN STANDARD INTERNATIONAL, INC.,
by
Name:
Title:
STANDARD SANITARY
MANUFACTURING COMPANY,
by
Name:
Title:
THE TRANE COMPANY,
by
Name:
Title:
TRANE EXPORT INC.,
by
Name:
Title:
TRANE WABCO COMPANY,
by
Name:
Title:
WABCO STANDARD TRANE
HOLDINGS INC.,
by
Name:
Title:
