EXHIBIT 4
EXECUTION COPY
EXECUTION COPY
US $2,000,000,000
5-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 5, 2004
AMONG
MASCO CORPORATION AND
MASCO EUROPE S.A.R.L.,
AS BORROWERS
THE BANKS PARTY HERETO
AND
CITIBANK, N.A.,
AS SYNDICATION AGENT
SUMITOMO MITSUI BANKING CORPORATION,
AS DOCUMENTATION AGENT
AND
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS ADMINISTRATIVE AGENT
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X.X. XXXXXX SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
Joint Lead Arrangers and Joint Book Runners
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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............................................... 14
SECTION 1.03. Types of Borrowings............................................................... 15
ARTICLE II: THE CREDITS.............................................................................. 15
SECTION 2.01. Borrowings; Swingline Loans....................................................... 15
SECTION 2.02. Notice of Borrowing............................................................... 18
SECTION 2.03. Notice to Banks; Funding of Loans................................................. 18
SECTION 2.04. Noteless Agreement; Evidence of Indebtedness...................................... 20
SECTION 2.05. Maturity of Loans................................................................. 21
SECTION 2.06. Interest Rates.................................................................... 21
SECTION 2.07. Facility Fees..................................................................... 22
SECTION 2.08. Optional Termination or Reduction of Commitments.................................. 22
SECTION 2.09. Mandatory Termination of Commitments.............................................. 23
SECTION 2.10. Prepayments....................................................................... 23
SECTION 2.11. General Provisions as to Payments................................................. 24
SECTION 2.12. Funding Losses.................................................................... 25
SECTION 2.13. Computation of Interest and Fees.................................................. 25
SECTION 2.14. Withholding Tax Exemption......................................................... 26
SECTION 2.15. Judgment Currency................................................................. 26
SECTION 2.16. Lending Installations............................................................. 27
SECTION 2.17. The Letter of Credit Facility..................................................... 27
SECTION 2.18. Increase of Aggregate Commitment.................................................. 34
ARTICLE III: CONDITIONS.............................................................................. 36
SECTION 3.01. All Borrowings.................................................................... 36
SECTION 3.02. Effectiveness of this Agreement................................................... 36
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......................................................... 41
SECTION 4.10. Compliance with Laws.............................................................. 41
SECTION 4.11. Foreign Employee Benefit Matters.................................................. 41
ARTICLE V: COVENANTS................................................................................. 41
SECTION 5.01. Information....................................................................... 41
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SECTION 5.02. Financial Covenants............................................................... 43
SECTION 5.03. Limitations on Subsidiary Debt.................................................... 44
SECTION 5.04. Negative Pledge................................................................... 45
SECTION 5.05. Consolidations, Mergers and Sale of Assets........................................ 46
SECTION 5.06. Compliance with Laws.............................................................. 47
SECTION 5.07. Use of Proceeds................................................................... 47
SECTION 5.08. Insurance......................................................................... 47
SECTION 5.09. Inspection........................................................................ 47
ARTICLE VI: DEFAULTS................................................................................. 48
SECTION 6.01. Events of Default................................................................. 48
SECTION 6.02. Notice of Default................................................................. 50
ARTICLE VII: THE AGENT............................................................................... 50
SECTION 7.01. Appointment and Authorization..................................................... 50
SECTION 7.02. Agent and Affiliates.............................................................. 51
SECTION 7.03. Action by Agent and Liability of Agent............................................ 51
SECTION 7.04. Reliance on Documents and Counsel................................................. 51
SECTION 7.05. Employment of Agents.............................................................. 51
SECTION 7.06. Indemnification................................................................... 52
SECTION 7.07. Credit Decision................................................................... 52
SECTION 7.08. Successor Agent................................................................... 52
SECTION 7.09. Agent's and Arrangers' Fee........................................................ 52
SECTION 7.10. Agent, Arrangers, Documentation Agent, Syndication Agent.......................... 53
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...................................... 59
SECTION 9.04. Right of Set-off; Sharing of Set-Offs............................................. 60
SECTION 9.05. Amendments and Waivers............................................................ 60
SECTION 9.06. Successors and Assigns............................................................ 61
SECTION 9.07. Collateral........................................................................ 64
SECTION 9.08. Confidentiality................................................................... 64
SECTION 9.09. Severalty of Obligations.......................................................... 65
SECTION 9.10. Illinois Law; Submission to Jurisdiction.......................................... 65
SECTION 9.11. Counterparts; Integration......................................................... 65
SECTION 9.12. WAIVER OF JURY TRIAL; SERVICE OF PROCESS.......................................... 65
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SECTION 9.13. USA Patriot Act................................................................... 66
ARTICLE X: GUARANTY.................................................................................. 66
SECTION 10.01. Guarantee of Obligations.......................................................... 66
SECTION 10.02. Nature of Guaranty................................................................ 67
SECTION 10.03. Waivers and Other Agreements...................................................... 67
SECTION 10.04. Obligations Absolute.............................................................. 67
SECTION 10.05. No Investigation by Banks or Agent................................................ 68
SECTION 10.06. Indemnity......................................................................... 68
SECTION 10.07. Subordination, Subrogation, Reinstatement, Etc.................................... 68
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 C-3 - Form of Opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP
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 L/C Request
Exhibit G - Form of Commitment and Acceptance
SCHEDULES
Commitment Schedule
Pricing Schedule
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5-YEAR REVOLVING CREDIT AGREEMENT
This 5-YEAR REVOLVING CREDIT AGREEMENT dated as of November 5, 2004
is entered into among MASCO CORPORATION and MASCO EUROPE S.A.R.L., a company
organized as a societe a responsabilite limitee under the laws of the Grand
Duchy of Luxembourg, having its registered office at 00, Xxxx x'xxxxxxxx
Xxxxxxx, X-0000 Xxxxxxxx and registered with the Luxembourg Register of Commerce
and Companies under number B68.104, as borrowers, the BANKS party hereto as
lenders, CITIBANK, N.A., as Syndication Agent, SUMITOMO MITSUI BANKING
CORPORATION, as Documentation Agent, and BANK ONE, NA (Main Office Chicago), as
administrative agent. 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 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 or increased from time to time pursuant to the terms
hereof.
"AGREED SWINGLINE 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
Swingline Currency which the applicable Borrower requests the Swingline Lender
to include as an Agreed Swingline 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
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currency of the jurisdiction 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
5-Year Revolving Credit Agreement dated as of November 5, 2004, 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.
"APPROVED FUND" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Bank, (b) an affiliate of a Bank or (c) an
entity or an affiliate of an entity that administers or manages a Bank.
"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.
"ARRANGERS" means X.X. Xxxxxx Securities Inc. and Citigroup Global
Markets Inc.
"ASSIGNEE" has the meaning set forth in Section 9.06(C).
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Bank and an assignee (with the consent of any party whose
consent is required by Section 9.06), and accepted by the Administrative Agent,
in the form of Exhibit D or any other form approved by the Administrative Agent.
"BANK" means each financial institution listed on the signature
pages hereof, each Proposed New Bank which becomes a Bank pursuant to Section
2.18, 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(I), 6.02, Article VII, 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, and its successors (including JPMorgan Chase Bank, N.A.,
following the merger of Bank One, NA (Main Office Chicago) with and into
JPMorgan Chase Bank; it being understood and agreed that each reference herein
and in the Exhibits and Schedules hereto to Bank One, NA (Main Office Chicago),
whether individually or in its capacity as Administrative Agent,
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Swingline Lender, Issuing Bank or otherwise, shall mean and include any such
successor).
"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).
"CLOSING DATE" means November 5, 2004.
"COMMERCIAL PAPER BORROWING" means a Borrowing to the extent the
proceeds thereof are to be used to repay the Company's outstanding commercial
paper, as certified by the Company in the related Notice of Borrowing.
"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, (ii) with respect to any Proposed Increase Bank or Proposed
New Bank, the Effective Commitment Amount allocated to such Proposed Increase
Bank or Proposed New Bank pursuant to Section 2.18(B) or (iii) 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 AND ACCEPTANCE" has the meaning set forth in Section
2.18(C).
"COMMITMENT INCREASE NOTICE" has the meaning set forth in Section
2.18(A).
"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
permitted successors.
"COMPANY'S 2003 FORM 10-K" means the Company's annual report on Form
10-K for the year ended December 31, 2003, 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
3
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 of determination
(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 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, 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
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.
"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
4
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.
"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 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).
"EFFECTIVE COMMITMENT AMOUNT" has the meaning set forth in Section
2.18(B).
"ELIGIBLE AGREED SWINGLINE 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 Swingline
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
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introduced, (y) such currency is, in 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 Swingline
Currency until such time as the Swingline Lender agrees to reinstate such
currency as an Agreed Swingline Currency and promptly, but in any event within
five (5) 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 Swingline 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 (5) 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.
"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.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
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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" 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 as the Agent may from time to time specify to the Company, the
relevant Borrowers and each Bank as its "Eurocurrency Payment Office" for such
currency.
"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 denominated in a Syndicated Currency for the relevant Interest Period, the
rate appearing on Page 3750 of the Dow Xxxxx Market Service ("SERVICE") (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to deposits in such Syndicated Currency in the London interbank market) at
approximately 11:00 a.m. (London time) two (2) Eurocurrency Business Days prior
to the commencement of such Interest Period, as the rate for deposits in such
Syndicated Currency with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"Eurocurrency Reference Rate" with respect to such Eurocurrency Loan for such
Interest Period shall be the rate at which deposits in the applicable Syndicated
Currency of $5,000,000 (or the Equivalent Amount) and for a maturity comparable
to such Interest Period are offered by the principal London office of the Agent
(or any of its affiliates) in immediately
7
available funds in the London interbank market at approximately 11:00 a.m.
(London time) two (2) Eurocurrency Business Days prior to the commencement of
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).
"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
8
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 Xxxxx'x 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,
(B) with respect to each Floating Rate Borrowing, the period
commencing on the date of such Borrowing and ending ninety (90) days
thereafter or other mutually agreeable period acceptable between Agent and
the Borrower; provided that:
9
(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 Bank or any of its affiliates (other than Bank One or any of its
affiliates) which has agreed, in its sole discretion, to issue one or more
Letters of Credit, and which Bank or affiliate is 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 Bank's capacity as an Issuing
Bank hereunder with respect to any and all Letters of Credit issued by such Bank
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 AMOUNT" has the meaning set forth in Section 2.17(B)(ii)(b)
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 set forth in Section 2.07
of this Agreement and "Usage Percentage" (as defined in the Pricing Schedule),
"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).
"LENDING INSTALLATION" means, with respect to a Bank or the Agent,
the office,
10
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, as the same
may be extended, amended or renewed in accordance with the terms of this
Agreement.
"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.
"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 as a societe a responsabilite limitee under
the laws of the Grand Duchy of Luxembourg, having its registered office at 00,
Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the Luxembourg
Register of Commerce and Companies under number B68.104, and its permitted
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, 2003, as reflected in the financial statements referred
to in Section 4.04(A).
"MATERIAL DEBT" means Debt of the Company and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate outstanding principal amount exceeding $75,000,000, other than (i) the
Loans and L/C Obligations and (ii) Debt owing to the Company or any of its
Subsidiaries.
"MATERIAL FOREIGN PENSION PLAN" has the meaning set forth in Section
6.01(J).
"MATERIAL PLAN" has the meaning set forth in Section 6.01(J).
"XXXXX'X" 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
11
during such five year period.
"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.
"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 CREDIT AGREEMENTS" means each of (i) that certain Amended and
Restated 5-Year Revolving Credit Agreement entered into as of November 8, 2002
among the Borrowers, the financial institutions parties thereto and Bank One, as
administrative agent, as the same may be amended, restated, supplemented,
renewed, extended, refinanced or otherwise modified as of the date hereof, and
(ii) that certain Amended and Restated 364-Day Revolving Credit Agreement, dated
as of November 7, 2003 among the Borrowers, Bank One, 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 as of the date hereof.
"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
12
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.
"PROPOSED INCREASE BANK" has the meaning set forth in Section
2.18(B).
"PROPOSED NEW BANK" has the meaning set forth in Section 2.18(B).
"REFUNDING" has the meaning set forth in Section 5.03(B).
"REFUNDING BORROWING" means a Borrowing or a Letter of Credit
issuance, amendment, renewal or extension 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, amended, renewed or extended by the Issuing Bank.
"REGISTER" has the meaning set forth in Section 9.06(C)(iv).
"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).
"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" has the meaning set forth in Section 2.01(B).
"SWINGLINE LENDER" means Bank One.
"SWINGLINE LOAN" means any loan made by the Swingline Lender
pursuant to
13
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.
"SYNDICATION AGENT" shall mean the Syndication Agent named in the
first paragraph of this Agreement.
"TERMINATION DATE" means November 5, 2009 or, if such day is not a
Eurocurrency Business Day, the next preceding Eurocurrency Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"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 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
14
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).
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 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 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 3.01(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 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 Swingline Currency other than Dollars) during the period
on and after the Closing Date to but excluding the Termination Date
in any Agreed Swingline Currency in the aggregate principal
15
Dollar Amount not to exceed the lesser of (a) $200,000,000 (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 Swingline 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. Subject to
Section 2.09, each Swingline Loan denominated in Dollars or euro
shall be repaid with interest on the seventh (7th) day after such
Swingline Loan is made (or such shorter period with respect to
principal or interest as the Swingline Lender and the applicable
Borrower shall have agreed). Each Swingline Loan denominated in an
Agreed Swingline Currency other than Dollars or euro shall be repaid
with interest on the thirtieth (30th) day after such Swingline Loan
is made (or such shorter period with respect to principal or
interest 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 (4) 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 as a Floating Rate Loan to the applicable
Borrower from the Banks. If any Swingline Loan is not repaid (or
extended as permitted by clause (i) above) 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 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
(without delivery of a Notice of 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 Swingline 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,
16
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 3.01, other than the Swingline Lender making
a Swingline Loan when it had received written notice from the
Company, Masco Europe or any Bank 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(H) or (I)) 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 Swingline 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 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 in clause (iii)(a)
above and (y) in the case of such Bank, the Federal Funds Effective
Rate for the first three (3) days and at the interest rate specified
in clause (iii)(a) above thereafter.
17
SECTION 2.02. Notice of Borrowing. Except as provided in Section
2.01(B)(ii), 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. (Chicago 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,
(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, and
(E) whether and to what extent such Borrowing is a Commercial
Paper Borrowing.
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. (Chicago 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 applicable Borrower. 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 (Chicago 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 Chicago or London, as the case may be, to the Agent at its relevant
address specified in writing to the Banks (or such other address as may be
specified in writing by the Agent to the Banks so long as such address is
in the United
18
States, London or Luxembourg). 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 (or an affiliate thereof) in London (or
Luxembourg), 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:
(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
19
(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. (Chicago time) at least one (1) Domestic Business Day,
in the case of a conversion into or continuation of a Floating Rate Loan, three
(3) Eurocurrency Business Days, in the case of a conversion into or continuation
by the Company of a Eurocurrency Loan denominated in Dollars, or five (5)
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.
(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.
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(C) The entries maintained in the accounts maintained pursuant to
subsections (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 subsections (A) and (B) above.
SECTION 2.05. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof and interest thereon 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.
(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 (3)
Eurocurrency Business Days, then for such other period of time not longer
than six months as the Agent may elect, or, if the
21
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 Swingline 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.
(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) Fees accrued under this Section shall be payable quarterly in
arrears on the date fifteen (15) 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 (3) 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.
22
(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.
(A) The Borrowers may (i) prepay any Floating Rate Borrowing or
any Swingline Loan (other than a Swingline Loan bearing a fixed rate of
interest) at any time without penalty on the same day, (ii) prepay any
Swingline Loan bearing a fixed rate of interest in a manner agreed to
between the Borrowers and the Swingline Lender, and (iii) upon at least
five (5) 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 (2) 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
two (2) Eurocurrency Business Days or Domestic
23
Business Days, as applicable, prior to 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 or at any other Lending Installation of the Agent with respect
to such obligation, in any such case, 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 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 Effective Rate for the first three (3) 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 or in Dollars if converted
pursuant to Section 2.01(B)(iii). 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
24
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 or at any Lending Installation, in any such case, as 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 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 fifteen (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).
25
SECTION 2.14. Withholding Tax Exemption.
(A) At least five (5) 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 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
26
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 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, (i) 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) and (ii)
Masco Europe or any other foreign Subsidiary constituting an L/C Account
Party shall be liable only to repay Reimbursement Obligations, fees,
costs, expenses, indemnities or other obligations owing with respect to
27
Letters of Credit issued for the account of Masco Europe or such other
foreign Subsidiary.
(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
$250,000,000 (the "L/C Amount") 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)).
(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 F 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.
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(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 3.01 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, amend or renew 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.
(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
29
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.
(Chicago 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. (Chicago time) on such Draw Date), for the
account of the Banks, the amount of each 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).
30
(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 cash 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 (15) 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 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 (15) 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 (for distribution
31
to each Bank), 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; provided, however, that the failure to
provide such schedules or information shall not result in any liability on
the part of the Issuing Bank. 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
jure 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
32
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 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,
33
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 Account Party or another person that any required document is
forged or materially fraudulent.
SECTION 2.18. Increase of Aggregate Commitment.
(A) At any time, the Company may arrange (in consultation with the
Agent) for the Aggregate Commitment to be increased by an aggregate amount
of up to $250,000,000 without the prior written consent of any Banks not
participating in such increase; provided, that (i) any such increase shall
be in a minimum aggregate principal amount of $50,000,000 or any larger
multiple of $1,000,000 and (ii) the Aggregate Commitment shall at no time
exceed $2,250,000,000. The Company shall provide notice of such proposed
increase in a written notice to the Agent and the Banks not less than
twenty (20) Domestic Business Days prior to the proposed effective date of
such increase, which notice (a "Commitment Increase Notice") shall specify
the amount of the proposed increase in the Aggregate Commitment and the
proposed effective date of such increase. No Bank shall have any
obligation to increase its Commitment pursuant to a Commitment Increase
Notice, and the Company shall not be required to offer any Bank an
opportunity to participate in the requested increase.
(B) Not later than three (3) Domestic Business Days prior to the
proposed effective date, the Company shall notify the Agent of (i) any
existing Bank (each, a "Proposed Increase Bank") that shall have agreed to
increase its Commitment in connection with such Commitment Increase Notice
and (ii) any financial institution that shall have agreed to become a
"Bank" party hereto (each, a "Proposed New Bank") in
34
connection with such Commitment Increase Notice. Each Proposed Increase
Bank and Proposed New Bank, and the allocation of the proposed increase in
the Aggregate Commitment, shall be subject to the consent of the Agent,
the Swingline Lender and the Issuing Bank (which consent shall not be
unreasonably withheld). If the Company shall not have arranged for
existing Banks and Proposed New Banks to commit to increases in their
Commitment or new Commitments, as applicable, in an aggregate amount equal
to the proposed increase in the Aggregate Commitment, then the Company
shall be deemed to have reduced the amount of its Commitment Increase
Notice to the aggregate amount of such increases and new Commitments. The
Agent shall notify the Company and the Banks on or before the Domestic
Business Day immediately prior to the proposed effective date of the
amount of each Proposed Increase Bank's incremental and aggregate
commitment and each Proposed New Bank's Commitment (the "Effective
Commitment Amount") and the amount of the Aggregate Commitment, which
amount shall be effective on the following Domestic Business Day.
(C) Any increase in the Aggregate Commitment shall be subject to
the following conditions precedent: (i) the Company shall have reaffirmed
its guarantee of the obligations of Masco Europe, such reaffirmation to be
in writing and in form and substance reasonably satisfactory to the Agent,
(ii) as of the date of the Commitment Increase Notice and as of the
proposed effective date of the increase in the Aggregate Commitment, all
representations and warranties shall be true and correct in all material
respects as though made on such date (unless any such representation and
warranty is made as of a specific date, in which case, such representation
and warranty shall be true and correct in all material respects as of such
date) and no Default or Event of Default shall have occurred and then be
continuing, (iii) the Borrowers, the Agent, the Swingline Lender, the
Issuing Bank and each Proposed New Bank or Proposed Increase Bank shall
have executed and delivered a Commitment and Acceptance ("Commitment and
Acceptance") substantially in the form of Exhibit G hereto, (iv) the
Borrowers and any Proposed New Bank shall otherwise have executed and
delivered such other instruments, documents and agreements as the Agent
shall have reasonably requested in connection with such increase, and (v)
any Proposed New Bank shall have completed and submitted to the Agent an
Administrative Questionnaire. If any fee shall be charged by the Banks and
is agreed to by the Company in connection with any such increase, such fee
shall be in accordance with then prevailing market conditions, which
market conditions shall have been reasonably documented by the Agent to
the Company. Upon satisfaction of the conditions precedent to any increase
in the Aggregate Commitment, the Agent shall promptly advise the Company
and each Bank of the effective date of such increase. Upon the effective
date of any increase in the Aggregate Commitment that is provided by a
Proposed New Bank, such Proposed New Bank shall be a party to this
Agreement as a Bank and shall have the rights and obligations of a Bank
hereunder. Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment on the part of any Bank to increase its
Commitment hereunder at any time.
(D) Upon the execution and delivery of such Commitment and
Acceptance, the Agent shall reallocate any outstanding Loans ratably among
the Banks after giving effect to each such increase in the Aggregate
Commitment; provided, that the Borrowers hereby agree to compensate each
Bank for all losses, expenses and liabilities incurred by
35
such Bank in connection with the sale and assignment of any Eurocurrency
Loans hereunder on the terms and in the manner as set forth in Section
2.12.
ARTICLE III: CONDITIONS
SECTION 3.01. 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, amend, renew or
extend 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 as required by Section 2.02 or (iii) the Issuing Bank of a L/C
Request as required by Section 2.17(C), as applicable;
(B) the fact that, immediately after such Borrowing, Swingline
Loan or Letter of Credit issuance, amendment, renewal or extension, (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 $250,000,000;
(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, amendment, renewal or extension, as
applicable (other than a Refunding Borrowing), no Default shall have
occurred and be continuing; and
(D) the fact that the representations and warranties of the
Borrowers contained in this Agreement (except, in the case of a Refunding
Borrowing or a Commercial Paper 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, amendment, renewal or extension, as applicable.
Each Borrowing, Swingline Loan or Letter of Credit issuance,
amendment, renewal or extension made hereunder shall be deemed to be a
representation and warranty by the Borrower requesting such Borrowing, Swingline
Loan or Letter of Credit issuance, amendment, renewal or extension on the date
of such Borrowing, Swingline Loan or Letter of Credit issuance, amendment,
renewal or extension, as applicable, as to the facts specified in subsections
(B), (C) and (D) of this Section.
SECTION 3.02. 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
36
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 C-1 hereto, (ii) Linklaters Xxxxxx, Luxembourg counsel of Masco
Europe, substantially in the form of Exhibit C-2 hereto, and, in each
case, covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request and (iii)
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Agent and addressed to the
Banks, with respect to the enforceability of this Agreement and the Notes
issued on the Closing Date, substantially in the form of Exhibit C-3;
(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 each of 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, including, without
limitation, (i) copies of the Certificate of Incorporation or Articles of
Association of each Borrower, together with all amendments thereto, each
certified by the appropriate governmental officer in its respective
jurisdiction of organization, (ii) (a) in the case of the Company, a
certificate of good standing certified by the Secretary of State of
Delaware and a certificate of good standing certified by the Secretary of
State of Michigan, and (b) in the case of Masco Europe, a duly certified
excerpt from the Register of Commerce and Companies in Luxembourg, and a
non-bankruptcy certificate with respect to Masco Europe, and (iii) a
secretary's certificate of each Borrower certifying (a) resolutions of the
board of directors of such Borrower authorizing the execution, delivery
and performance of this Agreement and the Notes, (b) the names and true
signatures of the incumbent officers or managers of such Borrower, as
applicable, authorized to sign the Agreement and the Notes, (c) that there
have been no changes in the Certificate of Incorporation or Articles of
Association of such Borrower, as applicable, since the date of the
certification thereof by the applicable governmental authority in clause
(i) above, and (d) the by-laws or similar document as in effect on the
date of such certification;
(E) Evidence satisfactory to the Agent that the Prior Credit
Agreements have terminated and that all obligations,
indebtedness and liabilities outstanding under the Prior Credit Agreements
have been repaid in full, or the Company has arranged for such termination
and repayment from the proceeds of the initial Loans hereunder (in either
37
case, as documented in a payoff letter in form and substance reasonably
satisfactory to the Agent);
(F) Evidence satisfactory to the Agent that the Company has paid
to the Agent, the Syndication Agent and the Arrangers the fees agreed to
in the fee letters described in Section 7.09; and
(G) such other documents, instruments and agreements as the Agent
may reasonably request.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
The Company (and to the extent applicable thereto, Masco Europe)
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
38
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), 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 them 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, 2003 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 2003 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, 2004 and the
related unaudited condensed statements of consolidated income and
consolidated cash flows for the six months then ended, set forth in the
Company's quarterly report for the fiscal quarter ended June 30, 2004 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 six-month period (subject to normal
year-end adjustments).
39
(C) No Material Adverse Change has occurred or is continuing.
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, 2002. 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.
40
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.
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 Foreign
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 furnish to the Agent for
distribution to each of the Banks (including, if so desired, by means of
electronic communications in accordance with Section 9.01):
(A) as soon as available and in any event within the earlier of
(i) ninety-five (95) days after the end of each Fiscal Year and (ii) the
date on which the following items are required to be delivered to the
Securities and Exchange Commission, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such
41
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 the earlier of
(i) fifty (50) days after the end of each of the first three quarters of
each Fiscal Year and (ii) the date on which the following items are
required to be delivered to the Securities and Exchange Commission, a
condensed consolidated balance sheet of 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 or her 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 the delivery of each set of financial
statements referred to in subsections (A) and (B) above, a certificate of
the chief financial officer or the treasurer of the Company (i) 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, (ii) stating,
to the best of his or her knowledge, whether any Default exists on the
date of such certificate and (iii) if any Default then exists, setting
forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(D) within ten (10) 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 ten (10) 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 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;
(F) 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
42
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 subsection (F) exceeds $25,000,000;
(G) promptly and in any event not more than ten (10) 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;
(H) 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; and
(I) 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 $3,600,000,000, and shall be adjusted at the
end of each Fiscal Quarter commencing with the Fiscal Quarter ending on
September 30, 2004, 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
43
Consolidated Net Worth made pursuant to this clause (i) 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).
(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 60%; provided, however, that for
the purposes of the limitations provided in, and computations under, this
Section 5.02(B), "Debt" shall not include (a) with respect to the Company,
any Refunding Debt of the Company to the extent that and for so long as
such Debt constitutes Refunding Debt, and (b) with respect to any
Subsidiary, any Debt of such Subsidiary (including any Refunding Debt) to
the extent that and for so long as such Debt is exempt from the incurrence
test in Section 5.03(A) as a result of the application of Section 5.03(B)
or (C).
The foregoing covenants will be tested on a consolidated basis as of the end of
each Fiscal Quarter.
SECTION 5.03. Limitations on Subsidiary Debt.
(A) The Company will not at any time permit any Consolidated
Subsidiary to create, incur, issue, guarantee, assume or suffer to exist
any Debt if, immediately after giving effect thereto, the aggregate
outstanding amount of Debt (determined at that time) of all Consolidated
Subsidiaries (other than Debt owed to the Company or one or more other
Consolidated Subsidiaries) would exceed 20% of Consolidated Net Worth
(calculated as of the last day of the most recently ended Fiscal Quarter).
(B) Subsection (A) above shall not prevent (i) 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; provided, that subsection (A) shall apply to the extent that
the aggregate principal amount of any such extending, renewing or
Refunding Debt exceeds the aggregate principal amount of the Debt being
extended, renewed or refunded, or (ii) the creation, incurrence, issuance,
guarantee or assumption of Debt owed to or
44
owned by the Company or a Consolidated Subsidiary. For purposes of this
subsection (B) and Section 5.02(B), Debt (whether constituting Debt of the
Company or of any Subsidiary) is deemed to be for the purpose of
"REFUNDING" other Debt if and to the extent that (i) no later than five
(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 specified Debt is repaid and
(iii) such specified Debt to be refunded is repaid within forty-five (45)
days after the refunding Debt is incurred; it being understood and agreed
that (x) upon repayment of the specified Debt with proceeds of the
refunding Debt, the refunding Debt shall constitute Consolidated Debt for
the purposes of Section 5.02(B), and (y) to the extent that the specified
Debt is not so repaid within forty-five (45) days after the refunding Debt
is originally incurred, the refunding Debt shall constitute Consolidated
Debt for purposes of Section 5.02(B) and shall be deemed to be incurred as
Debt for the purposes of Section 5.03(A) on the forty-sixth (46th) day
after such original incurrence.
(C) For purposes of the limitations provided in, and computations
under, Section 5.03(A), (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 20% 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 that is owed by any other Consolidated
Subsidiary so that the disposed 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) by the Company or any Consolidated
Subsidiary of its right to repayment of Debt that is owing by any
Consolidated Subsidiary 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, 2004 and continuing to exist on the
Closing Date securing Debt outstanding on June 30, 2004 and continuing to
exist on the Closing Date 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;
45
provided that the obligations secured by such Lien are not increased and
are not secured by any additional assets;
(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
ninety (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;
provided that the obligations secured by such Lien are not increased and
are not secured by any additional assets;
(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; provided that the obligations secured
by such Lien are not increased and are not secured by any additional
assets;
(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 subsections of this Section; provided that such Debt is not
increased and is not secured by any additional assets;
(G) any Lien in favor of the holder of 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(K) 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 subsections of this Section; provided that the aggregate
outstanding principal amount of Debt secured by all such Liens shall not
at any time exceed 15% of Consolidated Net Worth (calculated as of the
last day of the most recently ended Fiscal Quarter).
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
46
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, 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 the Prior Credit
Agreements 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, on behalf of itself or any requesting Bank, 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
47
intervals, having due regard for the ongoing business of the Company and its
Subsidiaries, as the Agent, on behalf of itself or any requesting Bank, 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 any Reimbursement Obligation or (ii) within five (5) days of
the due date thereof, any interest, fees or other amounts payable under
this Agreement;
(B) the Company or, if applicable, Masco Europe shall fail to
observe or perform any covenant contained in Sections 5.02 to 5.05,
inclusive;
(C) the Company shall fail to observe or perform its guaranty of
the Guaranteed Obligations pursuant to Article X hereof;
(D) the Company or Masco Europe shall fail to observe or perform
(i) any covenant in Section 5.01(D) for twenty (20) days after written
notice thereof has been given to the Company by the Agent at the request
of any Bank or (ii) any covenant or agreement contained in this Agreement
(other than those covered by subsection (A) or (B) above or clause (i) of
this subsection D) for thirty (30) days after written notice thereof has
been given to the Company by the Agent at the request of any Bank;
(E) 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 3.01 as to the
satisfaction of the condition of borrowing set forth in clause (i) of
Section 3.01(C) 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;
(F) 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;
(G) the Company or any Consolidated Subsidiary shall fail to
observe or perform any term, covenant or agreement contained in any
instrument or agreement (other than this Agreement) by which it is bound
relating to Debt (other than Acquired Debt in an aggregate outstanding
principal amount not exceeding $75,000,000) and the effect of all such
failures, events and conditions (each a "default") is to cause the
maturity
48
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;
(H) 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;
(I) 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 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 sixty (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;
(J) 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 $75,000,000 (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 $75,000,000 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 $75,000,000
(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 subsection
49
(J) 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;
(K) a judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Company or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of forty-five (45) days; or
(L) 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;
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, amend, renew or extent 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 subsection (H) or (I) 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(D) 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 of the Banks
irrevocably appoints the Agent as its agent and authorizes the Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
50
SECTION 7.02. Agent and Affiliates. The financial institution
serving as the Agent hereunder shall have the same rights and powers in its
capacity as a Bank as any other Bank and may exercise the same as though it were
not the Agent, and such financial institution and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any of the Borrowers or any their respective Subsidiary or other affiliate as if
it were not the Agent hereunder.
SECTION 7.03. Action by Agent and Liability of Agent. The Agent
shall not have any duties or obligations except those expressly set forth
herein. Without limiting the generality of the foregoing, (A) the Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (B) the Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Agent is
required to exercise in writing as directed by the Required Banks (or such other
number or percentage of the Banks as shall be necessary under the circumstances
as provided in Section 9.05), and (C) except as expressly set forth herein, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to any of the Borrowers or any of
their Subsidiaries that is communicated to or obtained by the financial
institution serving as Agent or any of its affiliates in any capacity. The Agent
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Banks (or such other number or percentage of the
Banks as shall be necessary under the circumstances as provided in Section 9.05)
or in the absence of its own gross negligence or willful misconduct. The Agent
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Agent by a Borrower or a Bank, and the Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Agent.
SECTION 7.04. Reliance on Documents and Counsel. The Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Agent may consult with legal
counsel (who may be counsel for any of the Borrowers), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
SECTION 7.05. Employment of Agents. The Agent may perform any and
all its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Agent. The Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective affiliates and their respective directors, officers, employees,
agents and advisors. The exculpatory provisions of the preceding sections shall
51
apply to any such sub-agent and to its affiliates and their respective
directors, officers, employees, agents and advisors of the Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Agent.
SECTION 7.06. Indemnification. To the extent that the Company fails
to pay any amount required to be paid by it to the Agent, the Issuing Bank or
the Swingline Lender under Section 9.03(A) or (B), each Bank severally agrees to
pay to the Agent, the Issuing Bank or the Swingline Lender, as the case may be,
ratably in accordance with such Bank's Commitment (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Agent, the Issuing Bank or the Swingline Lender in its
capacity as such.
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 from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 7.08. Successor Agent. Subject to the appointment and
acceptance of a successor Agent as provided in this section, the Agent may
resign at any time by notifying the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Banks and shall have accepted such appointment within thirty (30)
days after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent which shall be a
bank with an office in New York, New York, or an affiliate of any such bank,
having a combined capital and surplus of at least $250,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by any Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After the Agent's
resignation hereunder, the provisions of this Article VII and Section 9.03(A)
and (B) shall continue in effect for the benefit of such retiring Agent, its
sub-agents, its affiliates and their respective directors, officers, employees,
agents and advisors in respect of any actions taken or omitted to be taken by
any of them while it was acting as Agent.
SECTION 7.09. Agent's and Arrangers' Fee. The Company shall pay to
each of the Agent and the Arrangers for their own account such fees as agreed
upon between the Company, the Agent and the Arrangers and set forth in one or
more separate fee letters among the Agent, the Syndication Agent, the Arrangers
and the Company.
52
SECTION 7.10. Agent, Arrangers, Documentation Agent, Syndication
Agent. None of the Agent, the Arrangers, the Documentation Agent or the
Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than 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
Swingline 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
Swingline Currency, as applicable, shall be suspended, and (y) if the Syndicated
Currency or Agreed Swingline 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 (2) 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
53
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 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
54
subdivision thereof or imposed by the jurisdiction in which such
Bank's principal executive office or Applicable Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding,
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
fifteen (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 ninety (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
(5) 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
55
change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital of such
Bank (or its Parent) as a consequence of such Bank's obligations hereunder
to a level below that which such Bank (or its Parent) could have achieved
but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within fifteen
(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 ninety (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 Swingline 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 Swingline 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 Swingline 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 (4) 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
Swingline Currency or Syndicated Currency, as the case may be, in which the
56
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.
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 (5) 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, all of
such Affected Banks' 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
57
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.
ARTICLE IX: MISCELLANEOUS
SECTION 9.01. Notices.
(A) 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.
(B) Notices and other communications to the Banks hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Agent and
the applicable Bank. The Agent or any Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(C) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto or, in the case of any Bank, by notice to the Agent and the
Company. Except as otherwise provided in Subsection (A) above, all notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the
date of receipt.
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.
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SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(A) The Company shall pay (i) all reasonable out-of-pocket
expenses of the Agent and the Arrangers, including reasonable fees and
disbursements of counsel for the Agent and the Arrangers, in connection
with the preparation, negotiation, documentation, syndication,
distribution (including, without limitation, via the internet), and
administration of this Agreement, any waiver or consent hereunder or any
modification or 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 Arrangers and each Bank, including reasonable fees and
disbursements of counsel, independent public accountants and other
experts, 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
Arrangers 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 to the extent that they (i) do not relate to or arise
out of this Agreement or (ii) relate solely to the activities of the
parties hereto (other than the Company and its Affiliates) in connection
herewith and (y) neither the Agent, the Arrangers nor any Bank shall have
the right to be indemnified hereunder for its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
(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.
(D) To the extent permitted by applicable law, neither Borrower
shall assert, and each Borrower hereby waives, any claim against the
Agent, any Arrangers and any Bank and any of their respective directors,
officers, employees, agents or affiliates, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of,
this Agreement or any agreement or instrument contemplated hereby, the
execution,
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delivery and performance by the Borrowers of this Agreement, the borrowing
of any Loan, the issuance of any Letter of Credit hereunder or the use of
the proceeds thereof.
SECTION 9.04. Right of Set-off; Sharing of Set-Offs.
(A) If an Event of Default shall have occurred and be continuing,
each Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set-off and apply any and all deposits
at any time held and other obligations at any time owing by such Bank to
or for the credit or the account of either of the Borrowers against any of
and all the obligations of such Borrower now or hereafter existing under
this Agreement held by such Bank, irrespective of whether or not such Bank
shall have made any demand under this Agreement. The rights of each Bank
under this subsection are in addition to other rights and remedies
(including other rights of set-off) which such Bank may have.
(B) 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.
(A) 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), provided that no such amendment or waiver shall, unless
signed (x) by each Bank adversely affected thereby, (i) increase or
decrease the Commitment of any Bank (except for (a) a ratable decrease in
the Commitments of all the Banks and (b) increases in the Commitments
consummated in accordance with Section 2.18 which shall only require Bank
consents to the extent provided in such Section), (ii) reduce the
principal of or rate of interest on any Loan or Reimbursement Obligation
or any fees hereunder or (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or Reimbursement Obligation or any
fees hereunder or for the
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termination of the Commitments, or (y) by each Bank (i) change the
percentage of the Commitments or of the aggregate unpaid principal amount
of the Loans or Reimbursement Obligations, or the number of Banks, which
shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (ii) amend the
definition of Syndicated Currency, (iii) release the Company from its
Guaranteed Obligations under Article X, (iv) amend Section 2.03(B),
Section 9.04, this Section 9.05 or (v) amend any Bank's right to receive
pro rata distributions of payments and proceeds hereunder (including as
set forth in the last sentence of Section 2.10 and in Section 9.04(B)).
For purposes of clarification, (a) increases or decreases to the Swingline
Amount shall only require the approval of the Borrowers, the Required
Banks, the Agent and the Swingline Lender and (b) increases or decreases
to the L/C Amount shall only require the approval of the Borrowers, the
Required Banks, the Agent and the Issuing Bank.
SECTION 9.06. Successors and Assigns.
(A) General. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any affiliate of the
Issuing Bank that issues any Letter of Credit), except that (i) no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Bank (and any
attempted assignment or transfer by any Borrower without such consent
shall be null and void), except as provided in Section 5.05 and (ii) no
Bank may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted
hereby (including any affiliate of the Issuing Bank that issues any Letter
of Credit), Participants (to the extent provided in subsection (B) of this
Section) and, to the extent expressly contemplated hereby, the respective
affiliates, directors, officers, employees, agents and advisors of each of
the Agent, the Issuing Bank, Swingline Lender and the Banks) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(B) Participations.
(i) Any Bank may, without the consent of the Company, the
Agent, the Issuing Bank or the Swingline Lender, sell participations
to one or more banks or other entities (a "Participant") in all or a
portion of such Bank's rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans owing to it
and its L/C Interests); provided that (a) such Bank's obligations
under this Agreement shall remain unchanged, (b) such Bank shall
remain solely responsible to the other parties hereto for the
performance of such obligations and (c) the Company, the Agent, the
Issuing Bank, the Swingline Lender and the other Banks shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any
61
provision of this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without the consent
of the Participant, agree to any amendment, modification or waiver
described in clauses (i), (ii) or (iii) of Section 9.05 that affects
such Participant. Subject to subsection (E) of this Section, the
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.11(D), 2.12 and 8.03 to the same extent as if
it were a Bank and had acquired its interest by assignment pursuant
to subsection (C) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section
9.04(A) as though it were a Bank, provided such Participant agrees
to be subject to Section 9.04(B) as though it were a Bank.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.11(D) or 8.03 than the applicable
Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Company's prior
written consent. A Participant that is not incorporated under the
laws of the United States of America or a state thereof shall not be
entitled to the benefits of Section 2.11(D) unless the Company is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to comply with
Section 2.14 as though it were a Bank.
(C) Assignments.
(i) (Subject to the conditions set forth in clause (ii)
below, any Bank may assign to one or more Banks or other
institutions (each an "Assignee") all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitment, the Loans at the time owing to it and its L/C Interests)
with the prior written consent (such consent not to be unreasonably
withheld) of:
(a) the Company, provided that no consent of the
Company shall be required for an assignment to (1) a Bank or
an affiliate of a Bank that is a financial institution or (2)
if an Event of Default has occurred and is continuing, any
other Assignee,
(b) the Agent;
(c) the Issuing Bank; and
(d) the Swingline Lender.
(ii) Assignments shall be subject to the following additional
conditions:
(a) except in the case of an assignment to a Bank or
an affiliate of a Bank or an Approved Fund or an assignment of
the entire remaining amount of the assigning Bank's
Commitment, Loans or L/C Interests, the amount of the
Commitment, Loans or L/C Interests of the assigning Bank
subject to each such assignment (determined as of the date the
Assignment
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and Assumption with respect to such assignment is delivered to
the Agent) shall not be less than $10,000,000 and in multiples
of $1,000,000 unless each of the Company and the Agent
otherwise consent, provided that no such consent of the
Company shall be required if an Event of Default has occurred
and is continuing;
(b) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Bank's
rights and obligations under this Agreement;
(c) the parties to each assignment shall execute and
deliver to the Agent an Assignment and Assumption, together
with a processing and recordation fee of $4,000; and
(d) the Assignee, if it shall not be a Bank, shall
deliver to the Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
clause (iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations
of a Bank under this Agreement, and the assigning Bank thereunder
shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of
the assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.11(D), 2.12, 8.03 and 9.03).
Any assignment or transfer by a Bank of rights or obligations under
this Agreement that does not comply with this Section 9.06 shall be
treated for purposes of this Agreement as a sale by such Bank of a
participation in such rights and obligations in accordance with
subsection (B) of this Section.
(iv) The Agent, acting for this purpose as an agent of the
Company, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Banks, and the
Commitment of, and principal amount of the Loans and L/C Draft owing
to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and
the Company, the Agent, the Issuing Bank, Swingline Lender and the
Banks may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Bank hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Company, the Issuing Bank,
the Swingline Lender and any Bank, at any reasonable time and from
time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Bank and an Assignee, the
Assignee's completed
63
Administrative Questionnaire (unless the Assignee shall already be a
Bank hereunder), the processing and recordation fee referred to in
subsection (C)(ii) of this Section and any written consent to such
assignment required by subsection (C)(i) of this Section, the Agent
shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if
either the assigning Bank or the Assignee shall have failed to make
any payment required to be made by it pursuant to Sections
2.01(B)(ii) and (iii), 2.03(B), 2.11(B), 2.17(E) and (F), 7.03, 7.06
or otherwise, the Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this clause.
(vi) 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) Additional Pledges and Assignments. Any Bank may at any time
pledge or assign a security interest in all or any portion of its rights
under this Agreement to secure obligations of such Bank, including without
limitation any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Bank as a party hereto.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Confidentiality. Each Bank agrees that all
documentation and other information made available by the Borrowers to such Bank
under the terms of this Agreement shall (except to the extent requested or
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 in breach of its obligations
under this Section 9.08, 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 this Agreement;
provided that (i) such Bank may disclose such documentation and other
information to any other Bank or to its affiliates or any other bank or other
institution to which such Bank sells, assigns or proposes to sell a
participation in or to assign its interest 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 assignee or potential purchaser or assignee
64
of such Bank's interest in any Loan or its L/C Interest, (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 and (iv) such Bank may disclose such documentation and other
information with the prior written consent of the Company. Notwithstanding any
other provisions in this Agreement, each Arranger, the Agents, the Borrowers and
each Bank hereby confirms that the Company and the Company's officers,
directors, employees, attorneys and accountants and other advisors shall not be
limited from disclosing the U.S. tax treatment or U.S. tax structure
contemplated hereby.
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 THE INTERNAL LAWS
(INCLUDING 735 ILCS SECTION 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICTS OF LAW PROVISIONS) 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 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
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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.
SECTION 9.13. USA Patriot Act. Each Bank hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of such Borrower and other information
that will allow such Bank to identify such Borrower in accordance with the Act.
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 Banks
regardless of any defense or setoff or counterclaim which Masco Europe may
have or assert, and regardless of any other condition or contingency.
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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 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
67
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 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 to the
68
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 and in cash 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.
69
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
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
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 REVOLVING CREDIT AGREEMENT
BANK ONE, NA (MAIN OFFICE CHICAGO), as
Agent, as a Bank, as the Swingline Lender and
as an Issuing Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-------------------------------------------
Name:Xxxxxxxxxxx Xxxxxxxx
Title:Director
1 Bank Xxx Xxxxx
XX0-0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail:xxxxxx_xxxxx@xxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
CITIBANK, N.A., as a Bank and as Syndication
Agent
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telephone Number:(000)000-0000
Telecopy Number:(000) 000-0000
E-Mail: xxxxxx.x.xxxx@xxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
SUMITOMO MITSUI BANKING CORPORATION,
as a Bank and as Documentation Agent
By: /s/ Xxxxxx XxXxxxx
-------------------------------------------
Name: Xxxxxx XxXxxxx
Title: Vice President & Department Head
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: 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 REVOLVING CREDIT AGREEMENT
BARCLAYS BANK PLC, as a Bank
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Manager
000 Xxxx Xxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Xxxxx.Xxx@Xxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
BNP PARIBAS, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: xxxxxxxxxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
KEY BANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
000 Xxxxxx Xxxxxx
Xxxxxxxx: XX-00-00-0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Xxxxxx_Xxxxxx@XxxXxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
ROYAL BANK OF CANADA, as a Bank
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-Fact
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Nigel. Xxxxx@xxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
SUNTRUST BANK, as a Bank
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
000 Xxxxxxxxx Xxxxxx
10th Floor, MC 1928
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxx.xxxxxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
COMERICA BANK, as a Bank
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
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 REVOLVING CREDIT AGREEMENT
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By: /s/ Xxxxxx Warning
-------------------------------------------
Name: Xxxxxx Warning
Title: Assistant Vice President
By: /s/ Xx Xxxxxx
-------------------------------------------
Name: Xx Xxxxxx
Title: Assistant Vice President
Commerzbank AG
Chicago Branch
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxxxxx@xxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a Bank
By: /s/ B. Xxxxxxx Xxxxxx, Xx.
-------------------------------------------
Name: B. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
0000 Xxxxxxx Xxxx.
Xxxxxxx,XX 00000
Attention: Xxxxx Xxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Xxxxx.Xxxx@xxxxxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
XXXXXXX XXXXX BANK USA, as a Bank
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
00 X. Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Xxxxx_Xxxxx@xx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxx Xxxxxx
0xx Xxxxx, Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxxx.xxxxxxx@xxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Bank
By: /s/ Shinicho Munechika
-------------------------------------------
Name:Shinicho Munechika
Title: Deputy General Manager
000 Xxxx 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 REVOLVING CREDIT AGREEMENT
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx XX, XX 8050
Xxxxxxx,XX 00000
Attention: Xxxxxx Xxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: Xxxxxx.Xxxxxx@xxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
DANSKE BANK A/S, as a Bank
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxx X. X'Xxxxx
-------------------------------------------
Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
Danske Bank A/S
New York Branch
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx/Xxxxx X. Xxxxxx
Telephone Number: (000) 000-0000
(000) 000-0000
Telecopy Number: 212) 984-9567
E-Mail: XXXX@xx.xxxxxxxxxx.xxx
XXX@xx.xxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
DEXIA BANQUE INTERNATIONALE A
LUXEMBOURG SA, as a Bank
By: /s/ M. Andr'e Poorters
-------------------------------------------
Name: M. Andr'e Poorters
Title: Senior Vice President
By: /s/ M. Xxxx Xxxxxxxx
-------------------------------------------
Name: M. Xxxx Xxxxxxxx
Title: Vice President
00, xxxxx x'Xxxx
X-0000 XXXXXXXXXX
Attention: Xxxx Xxxxxxxx
Telephone Number: (00352) 4590 2705
Telecopy Number: (00352) 4590 3444
E-Mail: xxxx.xxxxxxxx@xxxxx-xxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
FIFTH THIRD BANK, EASTERN MICHIGAN, as a Bank
By: /s/ Xxxxx X. Nazareth
-------------------------------------------
Name: Xxxxx X. Nazareth
Title: Vice President
0000 Xxxx Xxxxxx, Xxxxx 0000
Mail Drop: JTWN5F
Xxxxxxxxxx, XX 00000
Attention; Xxxxx X. Nazareth
Telephone Number: (000) 000-0000
Telecopy Number. (000) 000-0000
E-Mail: Xxxxx.Xxxxxxxx@00.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
MIZUHO CORPORATE BANK, LTD, as a Bank
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
and Team Leader
0000 Xxxxx Xxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxxx (Xxxxxx)Xxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000/2
E-Mail: Xxxxxxxx.Xxxxx@xxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
NORDEA BANK FINLAND PLC, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President Credit
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: First Vice President
Nordea Bank Finland Plc
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Banking
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail: Xxxxxx.Xxxxxxxxxx@xxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
THE BANK OF NEW YORK, as a Bank
By:/s/ Xxxxxxx XxXxxxxxx
-------------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx XxXxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
E-Mail; XXxXXXXXXX@XXXXXXXX.XXX
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY, as a Bank
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
00 Xxxxx XxXxxxx Xxxxxx, X-0
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X'Xxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxx0@xxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
UFJ BANK LIMITED, as a Bank
By: /s/ Xxxxxxx X. Small
-------------------------------------------
Name: Xxxxxxx X. Small
Title: Senior Vice President
00 Xxxx 00xx Xxxxxx
XxxXxxx, XX 00000
Attention: Xxxxxxx X. Small
Telephone Number: (000)000-0000
Telecopy Number: (000) 000-0000
E-Mail: Xxxxxxx_Xxxxx@xxxxxxx.xx.xx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION, as a
Bank
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
000 X. Xxxxxxxxx Xxxxxx
Mailcode: MK-WI-TGCB
Xxxxxxxxx, XX 00000
National Corporate Banking Division
Attention: Xxxx Xxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxx.xxxxx@xxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
XXXXX FARGO BANK, N.A., as a Bank
By: /s/ Xxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxxxxx@xxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
BANCA XXXXXX - CHICAGO BRANCH, as a
Bank
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Enrico Verdoscia
-------------------------------------------
Name: Enrico Verdoscia
Title: Senior Vice President
000 X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxxxx@xxxxxxxxx.xxx
xxxxxxxxxx@xxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
BANCA NAZIONALE DEL LAVORO SPA, NEW
YORK BRANCH, as a Bank
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Relationship Manager
By: /s/ Francesco Di Mario
-------------------------------------------
Name: Francesco Di Mario
Title: Senior Manager
00 Xxxx 00xx Xxxxxx 00xx Xxxxx
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 REVOLVING CREDIT AGREEMENT
KBC BANK, N.V., as a Bank
By: /s/ Xxxx Xxxxxx Xxxx
-------------------------------------------
Name: XXXX XXXXXX Xxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: XXXX XXXXXX
Title: VICE PRESIDENT
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: xxxxxxx.xxxxxxxxx@xxx.xx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
SANPAOLA IMI S.P.A., as a Bank
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: General Manager
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
E-Mail: Xxxxxx.Xxxxxxx@xxxxxxxxxxx.xxx
SIGNATURE PAGE TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
COMMITMENT SCHEDULE
(5-YEAR REVOLVING CREDIT AGREEMENT)
Name of Bank Commitment
------------ ---------------
Bank One, NA (Main Office Chicago) $ 197,500,000
Citibank, N.A $ 197,500,000
Sumitomo Mitsui Banking Corporation $ 140,000,000
Barclays Bank PLC $ 100,000,000
BNP Paribas $ 100,000,000
KeyBank National Association $ 100,000,000
Royal Bank of Canada $ 100,000,000
SunTrust Bank $ 100,000,000
Comerica Bank $ 80,000,000
Commerzbank AG, New York and Grand Cayman Branches $ 80,000,000
Bank of America, N.A $ 65,000,000
Xxxxxxx Xxxxx Bank USA $ 65,000,000
PNC Bank, National Association $ 65,000,000
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $ 65,000,000
Wachovia Bank, National Association $ 65,000,000
Danske Bank A/S $ 40,000,000
Dexia Banque Internationale a Luxembourg SA $ 40,000,000
Fifth Third Bank, Eastern Michigan $ 40,000,000
Mizuho Corporate Bank, LTD $ 40,000,000
Nordea Bank Finland Plc $ 40,000,000
The Bank of New York $ 40,000,000
The Northern Trust Company $ 40,000,000
UFJ Bank Limited $ 40,000,000
U.S. Bank National Association $ 40,000,000
Xxxxx Fargo Bank, N.A $ 40,000,000
Banca Di Roma - Chicago Branch $ 20,000,000
Banca Nazionale del Lavoro SpA, New York Branch $ 20,000,000
KBC Bank, N.V $ 20,000,000
SanPaolo IMI S.p.A $ 20,000,000
TOTAL COMMITMENTS: $ 2,000,000,000
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 8.0 9.0 12.5 15.0 17.5
Letter of Credit Fee 29.5 38.5 50.0 60.0 82.5
Eurocurrency Margin if
the Usage Percentage
is less than or equal
to 50% 17.0 26.0 37.5 47.5 70.0
Eurocurrency Margin if
the Usage Percentage
is more than 50% 29.5 38.5 50.0 60.0 82.5
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 or 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 or 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 or 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 or 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.
"STATUS" means either Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status.
"USAGE PERCENTAGE" means, as of any date of determination, a percentage equal to
(i) the aggregate principal amount of outstanding Loans and L/C Obligations at
such time, divided by (ii) the Aggregate Commitment at such time (which, after
the Commitments have been terminated shall be based on the aggregate of the
Loans and L/C Obligations at such time).
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 higher 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.
EXHIBIT A
FORM OF NOTE
__________,_______
__________________
For value received, [MASCO CORPORATION, a Delaware corporation]
[MASCO EUROPE S.A.R.L., a company organized as a societe a responsabilite
limitee under the laws of the Grand Duchy of Luxembourg, having its registered
office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the
Luxembourg Register of Commerce and Companies under number B68.104] (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.
This note is one of the Notes referred to in the 5-Year Revolving
Credit Agreement dated as of November 5, 2004 among the Borrower, [Masco
Corporation] [Masco Europe S.a.r.l., a company organized as a societe a
responsabilite limitee under the laws of the Grand Duchy of Luxembourg, having
its registered office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and
registered with the Luxembourg Register of Commerce and Companies under number
B68.104], 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
This note shall be construed in accordance with and governed by the
internal laws (including 735 ILCS Section 105/5-1 et seq. but otherwise without
regard to the conflicts of law provisions) 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 ________________________________
[By __________________________________
Title _______________________________]
2
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
EXHIBIT B
SWINGLINE NOTE
________, ____
_______________
For value received, [MASCO CORPORATION, a Delaware corporation]
[MASCO EUROPE S.A.R.L., a company organized as a societe a responsabilite
limitee under the laws of the Grand Duchy of Luxembourg, having its registered
office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the
Luxembourg Register of Commerce and Companies under number B68.104] (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 Swingline 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 5-Year Revolving
Credit Agreement dated as of November 5, 2004 among the Borrower [Masco
Corporation] [Masco Europe S.a.r.l., a company organized as a societe a
responsabilite limitee under the laws of the Grand Duchy of Luxembourg, having
its registered office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and
registered with the Luxembourg Register of Commerce and Companies under number
B68.104] , 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
This note shall be construed in accordance with and governed by the
internal laws (including 735 ILCS Section 105/5-1 et seq. but otherwise without
regard to the conflicts of law provisions) 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 ____________________________
[By ______________________________
Title ___________________________]
1
Swingline 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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2
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 Ladies and Gentlemen:
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 as a societe a responsabilite limitee under the laws of the
Grand Duchy of Luxembourg, having its registered office at 00, Xxxx x'xxxxxxxx
Xxxxxxx, X-0000 Xxxxxxxx and registered with the Luxembourg Register of Commerce
and Companies under number B68.104 ("Masco Europe") and the other Subsidiaries
of the Company. I am familiar with the 5-Year Revolving Credit Agreement dated
as of November 5, 2004 (the "Credit Agreement") among the Company, Masco Europe,
the Banks party thereto as lenders, Citibank, N.A., as Syndication Agent,
Sumitomo Mitsui Banking Corporation, 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 3.02(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
1
Company or of any agreement, judgment, injunction, order, decree or other
instrument known to 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.
For the purposes of my opinion in paragraphs 3 as it relates to the
Company, I have assumed with your permission that the laws of the State of
Illinois are identical to those of the state of Michigan.
This opinion letter is furnished by me solely for your benefit and
the benefit of your successors and assignees and future participants under the
Loan Agreement, and it may not be relied upon, quoted from or delivered to any
person without my prior written consent other than such successors, assignees
and participants. This opinion letter may be disclosed (i) to your legal counsel
and the legal counsel of such successors, assignees and participants, (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 my prior consent.
Very truly yours,
Xxxx X. Xxxxxxx
Senior Vice President-
General Counsel
2
EXHIBIT C-2
OPINION OF
COUNSEL FOR MASCO EUROPE
1
0 Xxx Xxxxx Xxxxxx
Xxxxxxx X.X. Xxx 0000
X-0000 Xxxxxxxxxx
Telephone (352) 26 081
Facsimile (000)00 00 00 00
Direct Line x000 000000
Direct Fax x000 0000 0000
xxxxxx.xxxxx@xxxxxxxxxx.xxx
To the Lenders and the Agent referred to below
c/o Bank One, NA (Main Office Chicago), as
Agent
5 November 2004
Dear Sirs,
MASCO EUROPE S.A.R.L. - US $ 2,000,000,000 FIVE YEAR REVOLVING CREDIT AGREEMENT
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 5-Year Revolving Credit Agreement dated 5 November
2004 (the "CREDIT AGREEMENT") among Masco Corporation ("MASCO"), the
Borrower, the banks party thereto as lenders (the "LENDERS"), Citibank NA
as Syndication Agent, Sumitomo Mitsui Banking Corporation 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 3.02 (B) of the
Credit Agreement.
In this opinion:
"NOTES" means any promissory notes of the Borrower evidencing the
obligations of the Borrower under 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:
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 xxx.xxxxxxxxxx.xxx/xxxxxxxxxx for important information on the
regulatory position of the firm.
3.1 A final draft of the Credit Agreement dated 5 November 2004.
3.2 Certified coordinated Articles of Incorporation of the Borrower
dated 18 June 2004 and certified by public notary on 21 July 2004
(the "ARTICLES").
3.3 An excerpt from the Luxembourg Register of Commerce and Companies
concerning the Borrower dated 10 September 2004 (the "EXCERPT").
3.4 A copy of the resolutions of the managers of the Borrower dated 28
October, 2004 (the "RESOLUTIONS").
3.5 A certificate signed by Xxxxxx X. Xxxxxxxx on behalf of the board of
managers of the borrower dated 5 November 2004.
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 Credit Agreement constitutes valid and binding obligations of
the Borrower under the laws of the State of Illinois applicable
thereto.
4.4 The Articles have not been amended and remain in full force and
effect without modification.
4.5 The Excerpt remains in full force and effect without modification.
4.6 The Resolutions are true records of the proceedings described in
them and remain in full force and effect without modification.
4.7 The Credit Agreement has been or will be duly executed in or
substantially in the form of the final draft examined by us.
4.8 The choice of the laws of Illinois as the governing law of the
Credit Agreement has been made in good faith and will be regarded as
valid and binding as a matter of such laws, which will be upheld by
the courts of Illinois as a matter of the relevant law and all
other relevant laws (other than the laws of Luxembourg).
4.9 The Credit Agreement has the same meaning and effect under the laws
of Illinois by which it is expressed to be governed as it would have
if it was interpreted under Luxembourg law by a Luxembourg court
and there are no provisions of this law which would render this
opinion incorrect in any respect.
4.10 The Borrower has its principal establishment and its centre of main
interests in Luxembourg.
4.11 The Credit Agreement, when signed by all the parties, will be valid,
binding and enforceable on each party (other than the Borrower)
under the laws of Illinois by which it is expressed to be governed.
Page 2 of 6
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 Credit
Agreement and to execute the Notes.
5.3 The execution, delivery and performance by the Borrower of the
Credit 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 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 Credit Agreement or the
execution of the Notes.
5.5 The execution, delivery and performance of the Credit 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 Credit
Agreement.
5.7 Any final civil or commercial judgment rendered by any State or
Federal Court of competent jurisdiction located in the State of
Illinois in an action to enforce the obligations of the Borrower
under the Credit Agreement will be enforceable in Luxembourg subject
to Luxembourg ordinary rules on enforcement ("exequatar") of
foreign judgments. Pursuant to such rules, an enforceable judgment
rendered by any US court based on contract would not directly be
enforceable in Luxembourg. However, a party who obtains a judgment
in a US court may initiate enforcement proceedings in Luxembourg
("exequatur), by requesting enforcement of the US judgment before
the District Court ("Tribunal d'Arrondissement), pursuant to Section
678 of the New Luxembourg Code of Civil Procedure. The District
Court will authorize the enforcement in Luxembourg of the US
judgment if it is satisfied that the following conditions are met:
- the judgment rendered by any State or Federal Court of
competent jurisdiction- located in the State of Illinois is
enforceable ("executoire") in the State of Illinois
respectively;
- the jurisdiction of the State or Federal Court of the State
of Illinois is founded according to Luxembourg private
international law rules and to the applicable domestic US
jurisdiction rules;
- the State or Federal Court of the State of Illinois has
applied to the dispute the substantive law which would have
been applied by Luxembourg courts;
- the principles of natural justice have been complied with;
and
Page 3 of 6
- the judgment rendered by any State or Federal Court of
competent jurisdiction: located in the State of Illinois
does not contravene the Luxembourg international public
policy.
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 Credit Agreement.
5.9 No stamp duty or registration or similar tax is payable under
Luxembourg law in connection with the parties entering into
the Credit Agreement or the Borrower executing the Notes, save
that registration may be ordered and a registration fee might
become payable if and; when the Credit Agreement were adduced
as evidence in a Luxembourg court or submitted to another
Luxembourg public authority ("autorite constituteee").
5.10 It is not necessary under the laws of Luxembourg in order to
enable the Agent or the Lenders to enforce their rights under
the Credit Agreement or any Notes to which the Borrower is a
party against the Borrower that the Agent or the Lenders
should be licensed qualified or otherwise entitled to carry
on business in Luxembourg. By reason of the execution,
delivery and performance of the Credit Agreement and the Notes
to which it is a party, neither the Agent nor any Lender 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 Credit 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.
6.6 Any obligation to pay a sum of money in a currency other than the
euro will be enforceable in Luxembourg in terms of euro only.
Monetary judgments may be expressed in a foreign currency or its
euro equivalent at the time of judgment or payment.
Page 4 of 6
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 Credit Agreement and/or the
Notes before a Luxembourg court or another Luxembourg public
authority ("autorite constitute") 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 Credit 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 Credit 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.
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 or 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 Lenders and
solely for the purpose of the execution and performance of the Credit
Agreement and/or the Notes. It is not to be transmitted to anyone else nor
is it to be relied upon by anyone else with the exception of the
prospective successors and assignees of the Lenders or for any other
purpose or quoted or referred to in any public document or filed with
anyone without our written consent; provided, 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
Page 5 of 6
(i) to regulatory authorities having jurisdiction over any of the
addressees hereof or their successors and assignees, and (ii) pursuant to
valid legal process, in each case without our prior consent.
Yours faithfully
Linklaters Xxxxxx
by
Xxxxxx XXXXX
Page 6 of 6
EXHIBIT C-3
OPINION OF
SIDLEY XXXXXX XXXXX & XXXX LLP
Attached
1
SIDLEY XXXXXX XXXXX & XXXX LLP
BEIJING BANK ONE PLAZA LOS ANGELES
BRUSSELS 00 X. XXXXXXXX XXXXXX XXX XXXX
CHICAGO XXXXXXX, XXXXXXXX 00000 SAN FRANCISCO
DALLAS TELEPHONE 000 000 0000 SHANGHAI
GENEVA FACSIMILE 312 853 7036 SINGAPORE
HONG KONG TOKYO
LONDON xxx.xxxxxx.xxx SINGAPORE WASHINGTON, D.C.
FOUNDED 0000 XXXXX
WRITER'S DIRECT NUMBER WRITER'S E-MAIL ADDRESS
November 5, 2004
To each of the Banks party to the
Credit Agreement referred to below
and to Bank One, NA (Main Office Chicago),
as Agent
Re: Masco Corporation and Masco Europe S.a.r.I.
Ladies and Gentlemen:
We have acted as special Illinois counsel to Bank One, NA (Main
Office Chicago), as Administrative Agent, in connection with that certain 5-Year
Revolving Credit Agreement, dated as of November 5, 2004 (the "Credit
Agreement"), among Masco Corporation, a Delaware corporation, (the "Company"),
Masco Europe S.a.r.I., a company organized as a societe a responsabilite
limitee under the laws of the Grand Duchy of Luxembourg, having its registered
office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the
Luxembourg Register of Commerce and Companies under number B68.104 ("Masco
Europe", and together with the Company, the "Borrowers"), the banks party
thereto as lenders (the "Banks") and Bank One, NA (Main Office Chicago), as
agent for the Banks (the "Agent"). Capitalized terms used herein and not
otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion letter, we have examined originals
or copies, certified or otherwise, of the following documents, each dated as of
the date hereof:
(a) the Credit Agreement; and
(b) the promissory notes dated November 5, 2004 executed by the
Company and the promissory notes dated November 5, 2004 executed by Masco Europe
in favor of (i) Citibank, N.A., (ii) Sumitomo Mitsui Banking Corporation, (iii)
BNP Paribas, (iv) KeyBank National Association, (v) Royal Bank of Canada, (vi)
SunTrust Bank, (vii) Commerzbank AG, New York and Grand Cayman Branches, (vi)
Bank of America, N.A., (viii) PNC Bank, National Association, (ix) Dexia Banque
International a Luxembourg SA, (x) Firth Third Bank, Eastern Michigan, (xi) The
Northern Trust Company, (xii) U.S. Bank National Association, (xiii) Xxxxx Fargo
Bank, N.A., and (xiv) KBC Bank, N.V.
SIDLEY XXXXXX XXXXX & XXXX LLP IS AN ILLINOIS LIABILITY LLABLITY PARTNERSHIP
PRACTICING IN AFFILIATION WITH OTHR SIDLEY XXXXXX XXXXX XXXX PARTNERSHIP
SIDLEY XXXXXX XXXXX & XXXX LLP CHICAGO
November 5, 2004
Page 2
The documents described in items (a) and (b) above are referred to
hereinafter as the "Loan Documents." In our examination of the Loan Documents,
we have assumed the authenticity of all such documents submitted to us as
originals, the conformity to authentic originals of all such documents submitted
to us as copies, the genuineness of all signatures, the due authorization,
execution and delivery by each of the parties executing such documents and such
other legal and factual assumptions as are described in this opinion letter.
In rendering the opinions set forth herein, we have assumed that:
(i) each party to the Loan Documents is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
or formation and each such party has the requisite corporate, banking or other
applicable power to enter into the Loan Documents; and the execution and
delivery of each of the Loan Documents have been duly authorized by all
necessary corporate, banking or other applicable action and proceedings
(including shareholder action and proceedings) on the part of such party;
(ii) the execution, delivery and performance of the Loan Documents
by each party to the Loan Documents do not require any action or approval by any
governmental agency or private party except for those which have been taken or
obtained, do not violate any provision of law applicable to such party, and do
not conflict with, result in a breach of or constitute a default under the
certificate of incorporation, charter or other organizational document, code of
regulations or by-laws (or any analogous governing document) of such party or
any indenture, agreement, or other instrument to which such party is a party or
by which such party is bound;
(iii) each party to the Loan Documents has duly executed and
delivered each of the Loan Documents; and
(iv) the Credit Agreement constitutes the valid and binding
obligation of each party thereto (other than the Borrowers), enforceable against
such parties in accordance with its terms.
Based upon the foregoing assumptions and examination of documents
and upon such investigation as we have deemed necessary, and subject to the
qualifications set forth in subparagraphs (a) through (e) below, we are of the
opinion as of the date hereof that the Loan Documents are enforceable against
the Borrowers in accordance with their respective terms.
Our opinion is expressly qualified as follows:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other laws
affecting creditors' rights generally and to the effect of general equitable
principles (whether considered in a proceeding in equity or at law). In applying
such principles, a court, among other things, might not allow a creditor to
accelerate maturity of a debt upon the occurrence of a default deemed immaterial
or
SIDLEY XXXXXX XXXXX & XXXX LLP CHICAGO
November 5, 2004
Page 3
for non-credit reasons or might decline to order a debtor to perform covenants.
Such principles applied by a court might include a requirement that a creditor
act with reasonableness and in good faith. In addition, a court may refuse to
enforce a provision of a Loan Document if it deems such provision to violate
public policy, including any provision indemnifying a party against liability
for its own wrongful or negligent acts.
(b) Certain provisions of the Loan Documents may be unenforceable
in whole or in part under the laws of the State of Illinois, but the inclusion
of such provisions does not affect the validity of the Loan Documents taken as a
whole; provided, however, that the unenforceability of remedial provisions may
result in delays in the enforcement of the Agent's rights and remedies under the
Loan Documents (and we express no opinion as to the economic consequences, if
any, of such delays). Except as set forth in subparagraph (a) above, the Loan
Documents taken as a whole contain adequate provisions for enforcing payment of
the obligations of the Borrowers thereunder.
(c) We render no opinion with respect to the enforceability of the
last two sentences of Section 9.06.(B)(i) and all of Section 9.06(B)(ii) of the
Credit Agreement.
(d) Our opinions expressed are limited to the law of the State of
Illinois, and we do not express any opinion herein concerning any other laws.
(e) We express no opinion as to the effect of the compliance or
noncompliance by the Agent or any of the Banks with any federal or state laws or
regulations applicable to the Agent or any of the Banks because of any such
entity's legal or regulatory status or the nature of such entity's business or
requiring the Agent or any of the Banks to qualify to conduct business in any
jurisdiction.
SIDLEY XXXXXX XXXXX & XXXX LLP CHICAGO
November 5, 2004
Page 4
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit and for the benefit of your
respective successors, assigns and participants in connection with the
transactions contemplated in the Credit Agreement and, except as set forth
above, may not be relied on in any manner or for any purpose by any other
person, nor any copies published, communicated or otherwise made available in
whole or in part to any other person or entity without our express prior written
consent, except that you may furnish copies thereof (1) to any party that
becomes a Bank after the date hereof pursuant to the Credit Agreement and to a
prospective assignee of or participant in the Loans, (2) to your independent
auditors and attorneys, (3) upon the request of any state or federal authority
or official having regulatory jurisdiction over you, and (4) pursuant to order
or legal process of any court or governmental agency or in any legal proceedings
involving the Credit Agreement or this opinion letter. We do not express any
opinion, either implicitly or otherwise, on any issue not expressly addressed
above. The opinions expressed above are based solely on factual matters in
existence as of the date hereof and laws and regulations in effect on the date
hereof. We assume no obligation to revise or supplement this opinion letter
should such factual matters change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise.
Very truly yours,
`
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells
and assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below (i) all of the Assignor's rights and obligations
in its capacity as a Bank under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including any letters of credit, guarantees, and swingline loans included in
such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Bank) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and
all other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ________________________
2. Assignee: ________________________
[and is an affiliate/Approved Fund of identify Bank](1)]
----------
(1) Select as applicable
1
3. Borrowers: Masco Corporation and Masco Europe S.a.r.l.
4. Agent: Bank One, NA (Main Office Chicago), as the
administrative agent under the Credit
Agreement
5. Credit Agreement: The $2,000,000,000 5-Year Revolving Credit
Agreement dated as of November 5, 2004
among Masco Corporation and Masco Europe
S.a.r.l., a company organized as a societe
a responsabilite limitee under the laws of
the Grand Duchy of Luxembourg, having its
registered office at 00, Xxxx x'xxxxxxxx
Xxxxxxx, X-0000 Xxxxxxxx and registered
with the Luxembourg Register of Commerce
and Companies under number B68.104, as the
Borrowers, the Banks parties thereto, Bank
One, NA (Main Office Chicago), as Agent,
and the other agents parties thereto
6. Assigned Interest:
Aggregate Amount of Amount of Percentage Assigned
Facility Commitment/Loans for all Commitment/ of
Assigned(2) Banks Loans Assigned Commitment/Loans(3)
----------- ------------------------ -------------- -------------------
$ $ %
$ $ %
$ $ %
Effective Date: _____________ ___, 20___[TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
----------
(2) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
Commitment," "L/C Interests," "Swingline Loans")
(3) Set forth, so at least 9 decimals, as a percentage of the Commitment/Loans
of all Banks thereunder.
2
By: _______________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: ________________________
Title:
Consented to and Accepted:
BANK ONE, NA (MAIN OFFICE
CHICAGO), as Agent
By: _______________________________
Title:
Consented to:
BANK ONE, NA (MAIN OFFICE
CHICAGO), as Swingline Lender
By: _______________________________
Title:
Consented to:
BANK ONE, NA (MAIN OFFICE
CHICAGO), as Issuing Bank
By: _______________________________
Title:
3
[Consented to:](4)
[NAME OF COMPANY]
By: _______________________________
Title:
----------
(4) To be added only if the consent of the Company is required by the terms of
the Credit Agreement.
4
ANNEX I
5-YEAR REVOLVING CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any Notes, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, Notes
or any collateral thereunder, (iii) the financial condition of the Borrowers,
any of their respective Subsidiaries or Affiliates or any other Person obligated
in respect of the Credit Agreement or Notes or (iv) the performance or
observance by the Borrowers, any of their respective Subsidiaries or Affiliates
or any other Person of any of their respective obligations under the Credit
Agreement or Notes.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Bank, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Agent or any other Bank, and (v) if it is a Bank not incorporated under
the laws of the United States of America or a state thereof, attached to the
Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Agent, the Assignor 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 action under the Credit
Agreement or Notes, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement and Notes are
required to be performed by it as a Bank.
1
2. Payments. From and after the Effective Date, the Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the
internal laws (including 735 ILCS Section 105/5-1 et seq. but otherwise without
regard to the conflicts of law provisions) of the State of Illinois.
2
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
Mail Code IL1-0429
000 X. Xxxxxxxx Xx.
Xxxxxxx, XX 00000-0000
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 5-Year Revolving Credit Agreement, dated as
of November 5, 2004, 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 as a societe a responsabilite limitee under the laws of
the Grand Duchy of Luxembourg, having its registered office at 00, Xxxx
x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the Luxembourg Register
of Commerce and Companies under number B68.104, the Banks party thereto,
Citibank, N.A., as Syndication Agent, Sumitomo Mitsui Banking Corporation, 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
_____________________________________________________________________
3
_____________________________________________
_____________________________________________
___________________________________
[___________________________________]
as Borrower
4
EXHIBIT E-1
NOTICE OF SWINGLINE LOAN
[Date]
Bank One, NA (Main Office Chicago), as Swingline Lender
Mail Code IL1-0429
000 X. Xxxxxxxx Xx.
Xxxxxxx, XX 00000-0000
Attention: ________________________(for a Swingline Loan in Dollars)
________________________(for a Swingline Loan in an Agreed Swingline
Currency other than Dollars)
The Borrower (as hereinafter named), hereby requests a Swingline
Loan pursuant to Section 2.01(B) of the 5-Year Revolving Credit Agreement, dated
as of November 5, 2004, 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 as a societe a responsabilite limitee under the laws of
the Grand Duchy of Luxembourg, having its registered office at 00, Xxxx
x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and registered with the Luxembourg Register
of Commerce and Companies under number B68.104, the Banks party thereto,
Citibank, N.A., as Syndication Agent, Sumitomo Mitsui Banking Corporation, 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 Swingline 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 Swingline Currency
other than Dollars, the agreed Interest Period shall be ____________
(iv) and the agreed upon interest rate shall be ________________________.
___________________________________
[___________________________________]
as Borrower
1
EXHIBIT F
FORM OF L/C REQUEST
[Date]
Bank One, NA (Main Office Chicago), as Agent
Mail Code IL1-0429
000 X. Xxxxxxxx Xx.
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
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 5-Year
Revolving Credit Agreement, dated as of November 5, 2004, 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 as a societe a
responsabilite limitee under the laws of the Grand Duchy of Luxembourg, having
its registered office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000 Xxxxxxxx and
registered with the Luxembourg Register of Commerce and Companies under number
B68.104, the Banks party thereto, Citibank, N.A., as Syndication Agent, Sumitomo
Mitsui Banking Corporation, 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
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.
Transmit by:
[ ] Courier [ ] Mail [ ] Full [ ] Telex/SWIFT [ ] Other (specify in detail):
Advising Bank (Name and Address): Account Party/Applicant(s) (Name and Address):
(Issuer use only unless Applicant designates advising bank)
Phone No. (_____) _____ Fax No. (_____)
To Beneficiary (Name and Address): Amount (Numeric)
______________________________________________
(Amount Written)
______________________________________________
[ ] +/-____%
______________________________________________
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:
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
2
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 5-Year Revolving Credit Agreement dated as of November 5,
2004 among Masco Corporation, Masco Europe S.a.r.l., a company organized as a
societe a responsabilite limitee under the laws of the Grand Duchy of
Luxembourg, having its registered office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000
Xxxxxxxx and registered with the Luxembourg Register of Commerce and Companies
under number B68.104, the financial institutions from time to time parties
thereto, Citibank, N.A., as syndication agent, Sumitomo Mitsui Banking
Corporation, 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
EXHIBIT G
FORM OF COMMITMENT AND ACCEPTANCE
Dated [_______________]
Reference is made to that certain Credit Agreement, dated as of November
5, 2004, among MASCO CORPORATION and MASCO EUROPE S.A.R.L., a company organized
as a societe a responsabilite limitee under the laws of the Grand Duchy of
Luxembourg, having its registered office at 00, Xxxx x'xxxxxxxx Xxxxxxx, X-0000
Xxxxxxxx and registered with the Luxembourg Register of Commerce and Companies
under number B68.104, as borrowers, the BANKS party hereto as lenders, CITIBANK,
N.A., as Syndication Agent, SUMITOMO MITSUI BANKING CORPORATION, as
Documentation Agent, and BANK ONE, NA (Main Office Chicago), as administrative
agent (the "AGENT") (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"). Terms defined in
the Credit Agreement are used herein with the same meaning.
Pursuant to Section 2.18 of the Credit Agreement, the Company has
requested an increase in the Aggregate Commitment from $______________ to
$_____________. Such increase in the Aggregate Commitment is to become effective
on the date (the "EFFECTIVE DATE") which is the later of (i) _________, ____ and
(ii) the date on which the conditions precedent set forth in Section 2.18(C) in
respect of such increase have been satisfied. In connection with such requested
increase in the Aggregate Commitment, the Company, the Agent and
_________________ (the "ACCEPTING BANK") hereby agree as follows:
1. Effective as of the Effective Date, [the Accepting Bank shall become a
party to the Credit Agreement as a Bank and shall have all of the rights and
obligations of a Bank thereunder and shall thereupon have a Commitment under and
for purposes of the Credit Agreement in a Dollar Amount equal to the] [the
Commitment of the Accepting Bank under the Credit Agreement shall be increased
from $_________ to the] Dollar Amount set forth opposite the Accepting Bank's
name on the signature page hereof.
[2. The Accepting Bank hereby (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Commitment and Acceptance and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire an interest thereunder and
become a Bank, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent of
its interest thereunder, shall have the obligations of a Bank thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Commitment and Acceptance and to purchase the an interest under the Credit
Agreement on the basis of which it has made such analysis and decision
independently and without reliance on the
2
Agent or any other Bank, and (v) if it is a Bank not incorporated under the laws
of the United States of America or a state thereof, attached to the Commitment
and Acceptance is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Accepting
Bank; and (b) agrees that (i) it will, independently and without reliance on 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 action under the Credit Agreement or Notes, and (ii) it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement and Notes are required to be performed by it as a
Bank] (5)
[3.] The Company hereby represents and warrants that as of the date hereof
and as of the Effective Date, (a) all representations and warranties of the
Company contained in Article IV of the Credit Agreement shall be true and
correct in all material respects as though made on such date (unless such
representation and warranty is made as of a specific date, in which case such
representation and warranty shall be true and correct in all material respects
as of such date; and (b) no event shall have occurred and then be continuing
which constitutes a Default or an Event of Default.
[4.] THIS COMMITMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (INCLUDING 735 ILCS SECTION
105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
[5.] This Commitment and Acceptance Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
----------
(5) To be included only in a Commitment and Acceptance for a Proposed New
Bank.
2
IN WITNESS WHEREOF, the parties hereto have caused this Commitment and
Acceptance Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
MASCO CORPORATION, as a Borrower
By: _______________________________________
Title: ____________________________________
MASCO EUROPE S.A.R.L., as a Borrower
By: _______________________________________
Title: ____________________________________
By: _______________________________________
Title: ____________________________________
Consented to and Accepted:
BANK ONE, NA (MAIN OFFICE CHICAGO), as Agent
By: _________________________________________
Title: ______________________________________
Consented to:
BANK ONE, NA (MAIN OFFICE CHICAGO), as Swingline Lender
By: _________________________________________
Title: ______________________________________
BANK ONE, NA (MAIN OFFICE CHICAGO), as Issuing Bank
By: _________________________________________
Title: ______________________________________
1
COMMITMENT ACCEPTING BANK
$ [BANK]
By: _____________________________
Title: __________________________
2
