15
ASSIGNMENT AND AMENDMENT AGREEMENT dated as of
February 9, 1995, among AMERICAN STANDARD COMPANIES INC.,
formerly known as ASI Holding Corporation, a Delaware
corporation ("Holding"); AMERICAN STANDARD INC., a
Delaware corporation ("ASI"); the Subsidiaries of ASI
listed on the signature pages hereto (the "ASI
Subsidiaries" and, together with Holding and ASI, the "ASI
Parties"); the financial institutions listed in Schedule I
hereto, in their respective capacities as parties to the
Original Credit Documents referred to below (the "Original
Lenders"); and the financial institutions listed in
Schedule II hereto (the "Continuing Lenders"); including
CHEMICAL BANK, as Administrative Agent for the Original
Lenders and Continuing Lenders (in such capacity, the
"Agent") and as Collateral Agent for the Original Lenders
and the Continuing Lenders (in such capacity, the
"Collateral Agent").
Preliminary Statement
A. Holding, ASI and the ASI Subsidiaries are parties to a
Credit Agreement dated as of June 1, 1993 (as amended and in effect immediately
prior to the effectiveness of the transactions contemplated by this Agreement,
the "1993 ASI Credit Agreement"), with the Original Lenders. The ASI Parties
desire to amend and restate the 1993 ASI Credit Agreement and to restructure all
outstanding loans and commitments thereunder (including by providing for the
repayment of certain of such loans) and have requested that the Original Lenders
and the Continuing Lenders enter into this Agreement for that purpose.
B. The Continuing Lenders are willing to amend and restate the
1993 ASI Credit Agreement in the form of the Amended and Restated Credit
Agreement executed and delivered herewith (the "Amended and Restated Credit
Agreement"), among the ASI Parties and the Continuing Lenders, and to
restructure the outstanding loans and commitments under the 1993 ASI Credit
Agreement on the terms and conditions set forth herein and in the Amended and
Restated Credit Agreement.
C. ASI has notified all the Original Lenders and the
Continuing Lenders of the scheduled date for the effectiveness of the
assignments and amendments contemplated hereby (which shall be the Effective
Date referred to in Section III).
D. Each of ASI and the ASI Subsidiaries that are to borrow on
the Effective Date under the Amended and Restated Credit Agreement has delivered
to the Agent, in accordance with the Amended and Restated Credit Agreement, a
Borrowing Request (as defined therein), which specifies (i) the amounts and
currencies of loans that it desires to be advanced to it on the Effective Date
that are not already outstanding under the 1993 ASI Credit Agreement, and (ii)
the amounts and currencies of loans made to it that are outstanding under the
1993 ASI Credit Agreement and that are to remain outstanding thereunder on the
Effective Date (the loans described in this clause (ii) being collectively
called the "Continuing Loans"). The foregoing Borrowing Requests are referred to
herein collectively as the "Effective Date Loan Notices".
E. The parties (other than the Withdrawing Lenders, as defined
below) desire that the Continuing Loans remain outstanding as indebtedness under
the Amended and Restated Credit Agreement, that letters of credit issued and
outstanding under the 1993 ASI Credit Agreement remain outstanding under the
Amended and Restated Credit Agreement and that the guarantees of, and security
interests securing, obligations under the 1993 ASI Credit Agreement and the
other "Credit Documents" as defined therein (collectively, the "Credit
Documents") be amended to the extent provided herein and, in such original or
amended form (as applicable), continue to guarantee and to secure obligations
under the Amended and Restated Credit Agreement and the Credit Documents.
F. The Original Lenders that will not be Continuing Lenders
(the "Withdrawing Lenders") desire to be released from their obligations under,
and all the Original Lenders desire to assign and transfer to the Continuing
Lenders (to the extent not retained by them as Continuing Lenders) their
interests and rights under, the 1993 ASI Credit Agreement.
Accordingly, the parties hereto hereby agree as follows:
I. ASSIGNMENT AND AMENDMENT
SECTION 1.01. Funding Memorandum. On or prior to the Effective
Date, the Agent and ASI shall prepare a funding memorandum (the "Funding
Memorandum") setting forth (i) with respect to each borrower under the 1993 ASI
Credit Agreement, the amounts and currencies of its outstanding loans thereunder
as of the Effective Date and any differences between such amounts and currencies
compared to the amounts and currencies of the loans that will continue to be
outstanding under, or be made under, the Amended and Restated Credit Agreement
on the Effective Date based on the Effective Date Loan Notices, (ii) the
respective amounts and currencies of the Continuing Loans that will continue to
be held on the Effective Date by Original Lenders currently holding such
Continuing Loans as a result of such Original Lenders also being Continuing
Lenders (such Continuing Loans being the "Retained Continuing Loans"), (iii) the
respective amounts and currencies of the Continuing Loans that will be assigned
on the Effective Date pursuant to Section 1.02 by Original Lenders currently
holding such Continuing Loans (the "Assigning Lenders") as a result of such
Original Lenders being Withdrawing Lenders or having commitments under the
Amended and Restated Credit Agreement that are inconsistent with the retention
of all the Continuing Loans currently held by them (such Continuing Loans being
the "Assigned Continuing Loans") and, as to each category of Assigned Continuing
Loans, the amount of such Loans, if any, to be purchased by each Continuing
Lender (the Continuing Lenders purchasing Assigned Continuing Loans of any
category being called the "Applicable Continuing Lenders" in respect thereof),
(iv) the letters of credit to be outstanding under the 1993 ASI Credit Agreement
as of the Effective Date, and (v) the respective amounts to be paid and received
by the parties hereto on the Effective Date pursuant to Section 1.06.
SECTION 1.02. Assignments. Subject to the conditions set forth
in Article III, effective on the Effective Date, (a) each Assigning Lender
hereby assigns and transfers to the Applicable Continuing Lenders, without
recourse, representation or warranty (other than as expressly set forth in
Article II), all its Assigned Continuing Loans of each category and all its
related rights and interests under the Credit Documents, and (b) the Applicable
Continuing Lenders hereby purchase and accept all such Assigned Continuing
Loans, rights and interests. Notwithstanding the foregoing, (i) the Assigning
Lenders shall retain the exclusive right under the Credit Documents to receive
and retain the payments referred to in clauses (a) and (c) of Section 1.06, and
(ii) the Assigning Lenders shall retain all their rights under the Credit
Documents in respect of indemnification and expense reimbursement obligations,
including under Sections 2.12, 2.14, 2.18 and 10.01 of the 1993 ASI Credit
Agreement, which shall survive the amendment and restatement of the 1993 ASI
Credit Agreement without prejudice to the rights of the Continuing Lenders under
the Amended and Restated Credit Agreement (and for purposes of such Section
2.14, the assignments of the Assigned Continuing Loans on the Effective Date
shall be treated as prepayments of such Loans, as provided in Section
1.06(a)(iii)). In implementation of the foregoing, the Original Lenders agree to
use their best efforts to deliver to the Agent, on or prior to the Effective
Date (or as promptly as possible thereafter), all promissory notes issued under
the 1993 ASI Credit Agreement (the "Original Notes"), or written certification
that such Original Notes are lost or cannot be located; provided that (A)
failure to deliver the Original Notes shall not affect the validity of the
assignments provided for herein and (B) each Original Lender that fails so to
deliver its Original Notes hereby agrees to indemnify the ASI Parties against
any loss, cost or expense resulting from such failure. The Agent shall surrender
to ASI on the Effective Date, for cancellation, all Original Notes received by
the Agent, it being understood that loans outstanding under the Amended and
Restated Credit Agreement are to be evidenced as provided therein.
SECTION 1.03. Amendment and Restatement. Subject to the
conditions set forth in Article III, on the Effective Date, upon the
consummation of the assignments referred to in Section 1.02, (a) the 1993 ASI
Credit Agreement shall be amended and restated in the form of the Amended and
Restated Credit Agreement, (b) the Continuing Loans shall constitute Loans
outstanding under, and as defined in, the Amended and Restated Credit Agreement
in accordance with the Effective Date Loan Notices (and, for purposes of the
Amended and Restated Credit Agreement, the Continuing Lenders shall be deemed to
have advanced their respective Continuing Loans under the Amended and Restated
Credit Agreement on the Effective Date as though made pursuant to Borrowing
Requests delivered thereunder), (c) the interests, rights and obligations of
each Continuing Lender shall be limited to those set forth in the Amended and
Restated Credit Agreement and the Credit Documents as amended (if applicable)
pursuant to the Credit Documents Amendment Agreement dated as of the date hereof
among Holding, ASI, the ASI Subsidiaries and the Collateral Agent (the "Credit
Documents Amendment") and (d) certain of the Credit Documents (and all interests
of any party thereunder, including all security interests whatsoever) shall be
amended pursuant to the Credit Documents Amendment as described in Schedule 1.03
and shall continue in full force and effect for the benefit of the Continuing
Lenders, and all references in any thereof to the 1993 ASI Credit Agreement or
to any such other Credit Documents shall be deemed references to the Amended and
Restated Credit Agreement or to such Credit Documents as amended thereby (if
applicable), as the Amended and Restated Credit Agreement or such Credit
Documents may hereafter be amended, supplemented or otherwise modified from time
to time.
SECTION 1.04 Consents and Releases. The ASI Parties hereby
consent and agree to the transactions to be effected by Sections 1.02 and 1.03
and hereby release, effective on the Effective Date, the Withdrawing Lenders
from all their obligations under the Credit Documents other than any obligations
they may have under Section 2.18(g) of the 1993 ASI Credit Agreement. The
Continuing Lenders and the ASI Parties acknowledge that certain of the Credit
Documents are being amended and restated, as provided in Section 1.03, forthwith
upon consummation of the assignments referred to in Section 1.02 and,
accordingly, the Continuing Lenders and the ASI Parties agree that, upon the
effectiveness of the amendment and restatement provided for in Section 1.03, the
obligations of the ASI Parties (other than as set forth herein) and the
Continuing Lenders shall be limited to those set forth in the Amended and
Restated Credit Agreement and the Credit Documents as amended (if applicable).
SECTION 1.05. Letters of Credit. On the Effective Date, each
letter of credit issued and outstanding under the 1993 ASI Credit Agreement (a
"Continuing Letter of Credit") shall continue to constitute a Letter of Credit
issued under, and as defined in, the Amended and Restated Credit Agreement, with
the same effect as though issued thereunder on the Effective Date. Each
Continuing Lender that shall have issued a Continuing Letter of Credit (a
"Continuing Issuing Bank") shall be deemed to be an "Issuing Bank", as defined
in the Amended and Restated Credit Agreement, in respect of such Continuing
Letter of Credit for all purposes of the Credit Documents, entitled to the
benefits thereof; and each Issuing Bank Agreement (as defined in the 1993 ASI
Credit Agreement) in effect on the Effective Date shall continue to constitute
an Issuing Bank Agreement under the Amended and Restated Credit Agreement. The
ASI Parties and the Continuing Lenders consent to the foregoing and each
Continuing Issuing Bank agrees that, on and after the Effective Date, the
Original Lenders shall be released from their participations acquired under the
1993 ASI Credit Agreement in such Continuing Letters of Credit issued by it,
without prejudice to the rights of such Continuing Issuing Bank in respect of
the participations acquired by Continuing Lenders under the Amended and Restated
Credit Agreement in respect of such Continuing Letters of Credit. Each
Continuing Issuing Bank and the ASI Parties also hereby acknowledge and agree
that, on and after the Effective Date, the compensation payable by the ASI
Parties to such Continuing Issuing Bank with respect to its Continuing Letters
of Credit shall be as set forth in the Issuing Bank Agreement executed and
delivered by ASI and such Continuing Issuing Bank, as contemplated by the
Amended and Restated Credit Agreement.
SECTION 1.06. Payments. Subject to the conditions set forth in Article III
hereof, on the Effective Date:
(a) each ASI Party that is a borrower under the 1993 ASI Credit
Agreement shall pay, and ASI shall cause each such borrower to pay, to the
Agent, in the manner and currencies required under the 1993 ASI Credit
Agreement for distribution to the Original Lenders in accordance with the
1993 ASI Credit Agreement, an amount equal to the sum of (i) all accrued
and unpaid interest on all the loans of such ASI Party outstanding under
the 1993 ASI Credit Agreement, regardless of whether such loans are being
prepaid on such date, (ii) the aggregate principal amount of all the loans
(excluding only Continuing Loans) of such ASI Party outstanding under the
1993 ASI Credit Agreement (and the amounts referred to in this clause (ii)
shall be applied to prepay such loans on the Effective Date), and (iii)
without limiting clause (b)(ii) of Section 1.02, all fees and other
amounts, including without limitation any break funding costs arising as a
result of the payments provided for herein (to the extent ASI has received
prior notice thereof), accrued and unpaid (whether or not then due) by such
ASI Party under the 1993 ASI Credit Agreement or any Credit Document (and
for purposes of this clause (iii), each assignment of an Assigned
Continuing Loan shall be treated as a prepayment thereof on the Effective
Date in determining break funding costs due under the 1993 ASI Credit
Agreement);
(b) each Continuing Lender shall pay to the Agent, in accordance with
Section 2.02(c) of the Amended and Restated Credit Agreement, (i) the
amounts of the loans (other than Continuing Loans) to be made by such
Continuing Lender under the Amended and Restated Credit Agreement on the
Effective Date based upon the Effective Date Loan Notices and the Funding
Memorandum, and (ii) amounts equal to the principal amounts of the Assigned
Continuing Loans that will constitute outstanding loans of such Continuing
Lender under the Amended and Restated Credit Agreement based upon such
Effective Date Loan Notices and the Funding Memorandum;
(c) the Agent shall pay (i) to the Original Lenders from the funds
received by it pursuant to clause (a)(i) above, all accrued and unpaid
interest in respect of the Loans of such Lenders outstanding under the 1993
ASI Credit Agreement on the Effective Date; (ii) to the Original Lenders
from the funds received by it pursuant to clause (a)(ii) above, the
aggregate principal amounts of the respective loans (other than Continuing
Loans) of such Lenders outstanding under the 1993 ASI Credit Agreement on
the Effective Date; (iii) to the Assigning Lenders from the funds received
by it pursuant to clause (b)(ii) above, the aggregate principal amounts of
the respective Assigned Continuing Loans of such Lenders outstanding on the
Effective Date; and (iv) to the Original Lenders from the funds received by
it pursuant to clause (a)(iii) above, all fees and other amounts, including
break funding costs determined in accordance with the 1993 ASI Credit
Agreement and such clause (a)(iii), accrued and unpaid (whether or not than
due) to such Lenders by reason of the assignments and prepayments provided
for herein or otherwise under the 1993 ASI Credit Agreement (but only to
the extent that ASI has received prior notice thereof);
(d) the ASI Parties that are parties to the Amended and Restated Credit
Agreement shall pay to the Agent, in the manner and currencies required
under the Amended and Restated Credit Agreement for distribution to the
Continuing Lenders in accordance with the Amended and Restated Credit
Agreement, all fees and other amounts payable to the Continuing Lenders
pursuant to Section III(g) hereof on the Effective Date; and
(e) the Agent shall pay to each ASI Party that is a borrower under the
Amended and Restated Credit Agreement, from the funds received by it
pursuant to clause (b)(i) above, the balance of such funds remaining for
the account of such ASI Party.
The obligations of the Continuing Lenders under clause (b)
above are several and not joint. The parties acknowledge that not all the break
funding costs under the 1993 ASI Credit Agreement have been notified to ASI, and
ASI shall pay such costs in accordance with the 1993 ASI Credit Agreement.
II. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS
SECTION 2.01. Representations and Warranties of Original
Lenders. (a) Each of the Assigning Lenders represents and warrants, as of the
Effective Date, to the Continuing Lenders that it is the beneficial and record
owner of the Assigned Continuing Loans to be assigned by it as contemplated by
Section 1.02; and that it has not sold, transferred or created any participating
interest in or lien upon such Assigned Continuing Loans (except participating
interests which will terminate upon the assignment provided for in Section
1.02).
(b) Each of the Original Lenders represents and warrants to
the Continuing Lenders that it has the power and authority to execute, deliver
and perform its obligations under this Agreement and that this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforceability of creditors' rights generally and by general
principles of equity.
SECTION 2.02. Representations and Warranties of Continuing
Lenders. Each Continuing Lender represents and warrants to the Original Lenders
that it has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and that this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforceability of creditors' rights generally and by general principles of
equity.
SECTION 2.03. Representations and Warranties of the ASI
Parties. Each of the ASI Parties represents and warrants to the Withdrawing
Lenders that it has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement and that this Agreement constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforceability of creditors' rights generally and by general
principles of equity or, in the case of the ASI Parties that are Foreign
Subsidiaries, applicable laws disclosed in legal opinions delivered pursuant to
the 1993 ASI Credit Agreement or the Amended and Restated Credit Agreement, as
applicable. Except for certain corporate reorganizations which have been
disclosed in writing to the Administrative Agent, each of the ASI Parties
represents and warrants (as to itself and its Subsidiaries and the shares of
capital stock, or parts, as applicable, pledged by it and them) to the
Continuing Lenders that, as of the date hereof, (a) as to the pledge of shares
of capital stock of any Domestic Subsidiary, such shares of capital stock
constitute 100% of the issued and outstanding capital stock of such Domestic
Subsidiary owned by ASI Parties and their Subsidiaries and required to be
pledged under the 1993 ASI Credit Agreement or the Amended and Restated Credit
Agreement, (b) as to the pledge of shares of capital stock or parts, as
applicable, of any Foreign Subsidiary pledged by ASI or any Subsidiary to secure
Domestic Obligations, such shares of capital stock or parts, as applicable,
constitute at least 65% in the aggregate of the issued and outstanding capital
stock of such Foreign Subsidiary owned by ASI, Holding and any Domestic
Subsidiary and required to be pledged under the 1993 ASI Credit Agreement or the
Amended and Restated Credit Agreement and (c) as to the pledge of shares of
capital stock or parts, as applicable, of any Foreign Subsidiary pledged by ASI
or any Subsidiary to secure Obligations other than Domestic Obligations, such
shares of capital stock or parts, as applicable, constitute 100% of the issued
and outstanding stock of such Foreign Subsidiary owned by ASI Parties and their
Subsidiaries and required to be pledged under the 1993 ASI Credit Agreement or
the Amended and Restated Credit Agreement.
SECTION 2.04. Certain Agreements Among ASI Parties and
Continuing Lenders. The ASI Parties that are parties to the Amended and Restated
Credit Agreement and the Continuing Lenders agree that, for all purposes of the
Credit Documents, the transactions contemplated hereby, including the payments
contemplated by Section 1.06 and the transactions contemplated by Sections 1.02,
1.03 and 1.04, shall be deemed to constitute part of the "Transactions" as
defined in the Amended and Restated Credit Agreement. In the event that the
Offering (as defined in the Amended and Restated Credit Agreement) shall occur
contemporaneously with the initial Borrowings under the Amended and Restated
Credit Agreement, it is understood and agreed that such Borrowings shall be
deemed to have occurred immediately prior to the Offering.
III. CONDITIONS
The transactions contemplated by Sections 1.02, 1.03, 1.04 and
1.05 shall become effective only upon the satisfaction, on a single date (which
shall be the Effective Date) on or prior to March 31, 1995, of the following
conditions (capitalized terms used in this Section III and not otherwise defined
herein shall have the meanings assigned to them in the Amended and Restated
Credit Agreement):
(a) all the payments referred to in Section 1.06 shall have been made;
(b) each Continuing Lender shall have received a duly executed Note, if
requested by such Continuing Lender, in respect of each Credit Facility
under which it has a Commitment, complying with the provisions of Section
2.06 of the Amended and Restated Credit Agreement; provided that the
receipt of executed Swingline Notes by the Swingline Lender requesting
Swingline Notes shall not be a condition to the effectiveness of this
Agreement or to the obligation of any Continuing Lender to make Loans
(other than Swingline Loans to be evidenced thereby);
(c) the Agent shall have received, on behalf of the Lenders, legal
opinions from each of Debevoise & Xxxxxxxx, counsel to the Credit Parties,
Xxxxxxx X. Xxxxxxx, Esq., Acting General Counsel of ASI, and such foreign
counsel to ASI and the Subsidiary Borrowers and other counsel as shall have
been requested by the Agent, each such opinion to be dated the Effective
Date and addressed to the Issuing Banks, the Administrative Agent and the
Lenders, as to such matters as the Agent may reasonably request, and the
Borrowers hereby instruct each such counsel to deliver such opinions;
(d) the representations and warranties set forth in Article III of the
Amended and Restated Credit Agreement and in each Credit Document shall be
true and correct in all material respects on and as of such date with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date;
(e) all legal matters incidental to this Agreement, the Amended and
Restated Credit Agreement, the Borrowings thereunder, the Credit Documents
and the Transactions shall be satisfactory to the Lenders and to Cravath,
Swaine & Xxxxx, counsel for the Agent;
(f) the Agent shall have received, on behalf of the Lenders, (i) in the
case of any Credit Party of which the certificate or articles of
incorporation (or other analogous document) has been changed since June 1,
1993, a copy of the certificate or articles of incorporation (or other
analogous document), including all amendments thereto, of such Credit
Party, certified (where reasonably available, in the case of any Credit
Party organized outside the United States) as of a recent date by the
Secretary of State (or other appropriate Governmental Authority) of the
state (or country) of its organization, or other evidence reasonably
satisfactory to the Agent as to the organization of such Credit Party; (ii)
a certificate as to the good standing or subsistence (or other analogous
certification), to the extent available, of each of the Credit Parties as
of a recent date, from the appropriate Secretary of State (or other
appropriate Governmental Authority) or other evidence reasonably
satisfactory to the Agent as to the good standing of such Credit Party;
(iii) a certificate of the Secretary or Assistant Secretary (or other
Responsible Officer, in the case of Credit Parties that do not have a
Secretary or an Assistant Secretary) of each Credit Party dated the
Effective Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws (or other analogous documents to the extent
available) of such Credit Party as in effect on the Effective Date and at
all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Credit Party
(and, if necessary, resolutions duly adopted by the shareholders or other
equity owners of such Credit Party) authorizing the execution, delivery and
performance of the Amended and Restated Credit Agreement and the Credit
Documents to which such Credit Party is or is to be a party and, in the
case of the Borrowers, the Borrowings, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation (or analogous documents)
of such Credit Party have not been amended since the date of the last
amendment thereto shown on the certificate (or other analogous
certification or such other evidence reasonably satisfactory to the Agent)
furnished pursuant to clause (i) above or, if no such certificate is
required to be furnished under (i) above, since June 1, 1993, and (D) as to
the incumbency and specimen signature of each officer executing the Amended
and Restated Credit Agreement, any Credit Document or any other document
delivered in connection herewith on behalf of such Credit Party; (iv) a
certificate of another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the certificate pursuant
to clause (iii) above; and (v) such other documents as the Lenders, the
Issuing Banks or Cravath, Swaine & Xxxxx, counsel for the Agent, may
reasonably request;
(g) the Agent shall have received, on behalf of the Lenders, an
Officer's Certificate of ASI, dated the Effective Date, confirming
compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.01 of the Amended and Restated Credit Agreement insofar as
such conditions precedent relate to ASI and its Subsidiaries;
(h) the Agent shall have received all Fees and other amounts due and
payable on or prior to the Effective Date, including reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by
any of the Borrowers hereunder or under any Credit Document (to the extent
invoices and statements therefor have been received);
(i) the Security Documents and the Guarantee Documents shall be in full
force and effect on the Effective Date. The Collateral Agent on behalf of
the holders of the Obligations shall have a security interest in the
Collateral of the type and priority described in each Security Document,
perfected to the extent contemplated by Section 3.09 of the Amended and
Restated Credit Agreement;
(j) the Agent shall have received, on behalf of the Lenders, a
satisfactory Perfection Certificate dated the Effective Date from ASI,
demonstrating the perfection, to the extent contemplated by Section 3.09 of
the Amended and Restated Credit Agreement, of the Liens granted under the
Security Documents;
(k) the Offering shall have occurred (or shall occur contemporaneously
with the initial Borrowings under the Amended and Restated Credit
Agreement) on the terms and conditions disclosed to the Lenders prior to
execution and delivery of this Agreement (or other terms and conditions
approved by the Lenders). The Agent shall have received, on behalf of the
Lenders, copies of all documentation executed and delivered in connection
with the Offering;
(l) the Lenders shall have received a satisfactory pro forma
consolidated balance sheet for ASI, reflecting the Transactions, and a
satisfactory statement of sources and uses of funds in connection with the
Transactions, in each case certified by a Financial Officer of ASI;
(m) after giving effect to all Borrowings made on the Effective Date,
the Total Revolving Credit Commitment will exceed the aggregate outstanding
principal amount of Revolving Credit Loans and Swingline Loans by an amount
that equals or exceeds $150,000,000 (adjusted as necessary to take account
of exchange rate fluctuations occurring after the delivery of the Funding
Memorandum);
(n) ASI shall have taken all actions, if any, necessary to designate
its liabilities in respect of the Obligations as senior indebtedness for
purposes of the subordination provisions of its subordinated indebtedness
(including, in the case of ASI, the Subordinated Securities), and the
Obligations shall constitute senior indebtedness for such purposes;
(o) the Agent shall have received, on behalf of the Lenders, a report
from ASI's independent insurance broker, together with any other evidence
reasonably requested by the Lenders, demonstrating that the insurance
described in Schedule 3.20 of the Amended and Restated Credit Agreement is
in effect;
(p) except as contemplated by the Transactions and as otherwise
disclosed to the Lenders prior to the execution and delivery of this
Agreement and the Amended and Restated Credit Agreement, there shall not
have occurred any Prepayment Event or any other material change in the
capitalization or corporate structure of Holding or the Borrowers since the
date of the most recent balance sheet referred to in Section 3.08 of the
Amended and Restated Credit Agreement;
(q) the Transactions, including the extensions of credit (and in
particular the incurrence of the Loans and the issuance of the Letters of
Credit) under the Amended and Restated Credit Agreement, the continuance of
the Liens created by the Security Documents and the consummation of the
Offering, shall have been approved or exempted by all requisite
Governmental Authorities, and all such approvals or exemptions, including
any conditions imposed thereby, shall be in form and substance acceptable
to the Lenders. No action shall have been taken by any Governmental
Authority which restrains or prevents or seeks to restrain or prevent, or
imposes or seeks to impose materially adverse conditions upon, any of the
Transactions;
(r) no action, suit, litigation or similar proceeding at law or in
equity or by or before any court or other Governmental Authority shall
exist or, in the case of litigation by a Governmental Authority, be
threatened, with respect to any of the Transactions which would in the
reasonable opinion of the Lenders be likely to result in a Materially
Adverse Effect;
(s) all aspects of the structure and documentation of the Transactions
and all corporate and other proceedings taken or to be taken in connection
therewith and all documents incidental thereto, in each case to the extent
not otherwise provided for herein, shall be reasonably satisfactory in form
and substance to the Agent and to Cravath, Swaine & Xxxxx, counsel for the
Agent, and the Lenders shall have received copies of all such documents as
the Lenders may reasonably request; and
(t) the Agent shall have received, on behalf of the Lenders, the duly
executed Credit Documents Amendment Agreement referred to in Schedule 1.03
executed by each person which is a party to any Credit Document.
Satisfaction of the foregoing conditions shall be conclusively evidenced by (i)
receipts executed and delivered by the Agent and ASI, in the case of the
condition set forth in clause (a) above and (ii) the making of the payments
described in Section 1.06 on the Effective Date, in the case of the conditions
set forth in clauses (b) through (t) above; provided that execution and delivery
of the receipts referred to in clause (i) above shall not affect the rights of
any party hereto to receive amounts due and payable to it and not actually
received by such party. Unless and until the transactions contemplated by
Sections 1.02, 1.03, 1.04 and 1.05 become effective as provided above, the
Credit Documents shall remain in full force and effect in accordance with their
respective terms and the rights and obligations of the parties thereto shall not
be affected hereby.
IV. MISCELLANEOUS
SECTION 4.01. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns (including, in the case of the Original
Lenders, all banks or other persons which shall become Lenders under and as
defined in the 1993 ASI Credit Agreement hereafter and prior to the Effective
Date and, in the case of the Continuing Lenders, all banks or other persons
which shall hereafter become Lenders under and as defined in the Amended and
Restated Credit Agreement).
SECTION 4.02. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 4.03. Amendment. This Agreement may be waived, modified or amended
only by a written agreement executed by each of the parties hereto.
SECTION 4.04. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same agreement. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 4.05. No Novation. Neither this Agreement nor the execution,
delivery or effectiveness of the Amended and Restated Credit Agreement shall
extinguish the obligations for the
payment of money outstanding under the 1993 ASI Credit Agreement or discharge or
release the Lien or priority of any pledge agreement or any other security
therefor. Nothing herein contained shall be construed as a substitution or
novation of the obligations outstanding under the 1993 ASI Credit Agreement or
instruments securing the same, which shall remain in full force and effect,
except to any extent modified hereby or by instruments executed concurrently
herewith. Nothing implied in this Agreement, the Amended and Restated Credit
Agreement, or any other document contemplated hereby or thereby shall be
construed as a release or other discharge of any Borrower or any Guarantor or
any Pledgor under any Credit Document from any of its obligations and
liabilities as a "Borrower", "Guarantor" or "Pledgor" under the 1993 ASI Credit
Agreement or the Credit Documents. Each of the 1993 ASI Credit Agreement and the
Credit Documents shall remain in full force and effect, until (as applicable)
and except to any extent modified hereby or in connection herewith.
Notwithstanding any provision of this Agreement or the Amended and Restated
Credit Agreement, the provisions of Sections 8.05 and 10.01 of the 1993 ASI
Credit Agreement, including all defined terms used therein, will continue to be
effective as to all matters arising out of or in any way related to facts or
events existing or occurring prior to the Effective Date.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first above written.
AMERICAN STANDARD COMPANIES INC.,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and
Treasurer
AMERICAN STANDARD INC.,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and
Treasurer
AMERICAN STANDARD (UK) LIMITED,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
AMERICAN STANDARD CREDIT INC.,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President &
Treasurer
WABCO STANDARD TRANE INC.,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
WABCO STANDARD GMBH,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
WABCO STANDARD TRANE B.V.,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
STANDARD EUROPE, a European Economic Interest Grouping,
by /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
CHEMICAL BANK, individually and as Administrative Agent
by /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
by /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
by /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Assistant Vice President
BANK OF AMERICA ILLINOIS,
by /s/ Xxxxxxx X. Xxx Xxxxxx
Name: Xxxxxxx X. Xxx Xxxxxx
Title: Vice President
BANK OF SCOTLAND,
by /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
by /s/ Xxxx Xxx Xxxxx
Name: Xxxx Xxx Xxxxx
Title: Vice President
BANQUE INDOSUEZ,
by /s/ Xxxx X. Sabre
Name: Xxxx X. Sabre
Title: First Vice President
by /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: First Vice President
BANQUE PARIBAS,
by /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
by /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
by /s/ E. Xxxxxxx Xxxxxx
Name: E. Xxxxxxx Xxxxxx
Title: Authorized Signatory
CERES FINANCE, LTD.
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Director
CITIBANK, N.A.,
by
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
COMPAGNIE FINANCIERE de CIC et de l'UNION
EUROPEENNE,
by
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: First Vice President
by
/s/ Xxxxx X'Xxxxx
Name: Xxxxx X'Xxxxx
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by
/s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
CREDIT SUISSE,
by
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate
by
/s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title: Member of Senior Management
CREDITO ITALIANO SpA,
by
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
CRESCENT CAPITAL CORP., as Portfolio Manager and
Attorney-in-Fact for CRESCENT/MACH I, L.P.,
by
/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH and/or CAYMAN
ISLANDS BRANCH,
by
/s/ Xxxxxxxxxxx X. Xxxx
Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President
by
/s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Asst. Vice President
DRESDNER BANK AG, NEW YORK and GRAND CAYMAN
BRANCHES,
by
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxxxx X. Miltag
Name: Xxxxxx X. Miltag
Title: Vice President
XXXXX XXXXX PRIME RATE RESERVES,
by
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FALCON 94, LIMITED,
by
/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF BOSTON,
by
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
FLEET BANK OF MASSACHUSETTS, N.A.,
by
/s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXX FINANCIAL, INC.,
by
/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
KEYPORT LIFE INSURANCE COMPANY,
by CHANCELLOR SENIOR SECURED MANAGEMENT, as
Portfolio Advisor
by
/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: V.P. & Chief Investment Officer
XXXXXX COMMERCIAL PAPER, INC.,
by
/s/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
by XXXXXXX XXXXX ASSET MANAGEMENT, L.P., as
Investment Advisor,
by
/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.,
by
/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
NATIONAL CITY BANK,
by
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Notwithstanding the foregoing, Prospect Street
Senior Portfolio, L.P. has created a lien upon
and security interest in the assigned Continuing
Loans assigned by it as contemplated by
Section 1.02 in favor of Citibank, N.A., which
lien and security interest shall be released
upon the sale and assignment hereunder and
receipt by it of payment in respect thereof.
Name: Xxxx X. Xxxxxxx
Title:
Vice President
PROSPECT STREET SENIOR PORTFOLIO, L.P.,
by PROSPECT STREET
SENIOR LOAN CORP., Managing General Partner,
by
/s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
**Subject to the representation that anything to
the contrary in Section 2.01(a) notwithstanding,
Restructured Obligations Backed By Senior Assets
B.V. has created a lien and security interest in
the Assigned Continuing Loans to be assigned by
it as contemplated by Section 1.02 in favor of
State Street Bank and Trust Company, which lien
and security interest shall be released upon the
effectiveness of this agreement.
**RESTRUCTURED OBLIGATIONS BACKED BY SENIOR ASSETS,
, B.V.,
by ABN TRUST COMPANY
(NEDERLAND) BV, its Managing Director,
by
/s/ J. J. Keijsper
-------------------
Name: J.J. Keijsper
Title:Proxy Holder
by
/s/ Th. Spijkerman
Name: Th.Spijkerman
Title:Proxy Holder
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
SOCIETE GENERALE,
by
/s/ Xxxxxxxxx Galatisto
Name: Xxxxxxxxx Galatisto
Title: Vice President
**Subject to the representation that anything to **STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR the contrary in Section 2.01(a) notwithstanding,
ASSETS 2 (XXXX 2), Stichting Restructured Obligations Backed By Senior Assets 2
(XXXX 2) has created a lien and by ABN TRUST COMPANY security interest in the
Assigned Continuing (NEDERLAND) B.V., its Managing Director, Loans to be
assigned by it as contemplated by Section 1.02 in favor of State Street Bank and
by Trust Company, which lien and security interest /s/ J. J. Keijsper shall be
released upon the effectiveness of this Name: J. agreement. J. Keijsper Title:
Proxy Holder
by
/s/ Th. Spijkerman
Name: Th.
Spijkerman
Title:
Proxy Holder
STRATA FUNDING LTD.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: V.P./Agent
THE CHASE MANHATTAN BANK, N.A.,
by
/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
THE FUJI BANK, LIMITED,
by
/s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxx
Title: Vice President and Manager
THE HOKKAIDO TAKUSHOKU BANK LTD.,
by
/s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, TRUST COMPANY,
by
/s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Senior Vice President and Senior
Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
by
/s/ Xxxx X. XxXxxxx
Name: Xxxx X. XxXxxxx
Title: Deputy General Manager
THE LONG-TERM CREDIT BANK OF JAPAN (DEUTSCHLAND) AG,
by
/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Member of the Board of Managing
Directors
by
/s/ Norifumi Takada
Name: Norifumi Takada
Title: Advisor to Management
THE MITSUBISHI BANK, LTD.,
by
/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION,
by
/s/ Xxxxxxxx Xxxxx xx Xxxx
Name: Xxxxxxxx Xxxxx xx Xxxx
Title: Senior Vice President
THE SAKURA BANK, LTD.,
by
/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President and Manager
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
by
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
by
/s/ Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxx
Title: Joint General Manager
THE SUMITOMO TRUST AND BANKING CO., LTD., NEW YORK
BRANCH,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President Manager,
Corporate Finance II Dept
THE TORONTO-DOMINION BANK,
by
/s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: MGR, CR ADMW
THE TRAVELERS INSURANCE COMPANY,
by
/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
UNION BANK OF FINLAND, LTD.,
by
/s/ Xxxxxx Xxxxxxxxxx/Xxxx X Xxxx
Name: Xxxxxx Xxxxxxxxxx/Xxxx X. Xxxx
Title: Senior Vice President/Vice
President
UNITED STATES NATIONAL BANK OF OREGON,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
VAN XXXXXX XXXXXXX PRIME RATE INCOME TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice Pres. and Portfolio Mgr.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
by
/s/ Xxxxxxx X. Xxx Xxxxxx
Name: Xxxxxxx X. Xxx Xxxxxx
Title: Vice President
