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EXHIBIT 4(i)
EXECUTION COPY
US $1,250,000,000
5-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 6, 2000
AMONG
MASCO CORPORATION AND
MASCO EUROPE S.A.R.L.,
AS BORROWERS
THE BANKS PARTY HERETO
AND
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, AND
CITIBANK, N.A.,
AS SYNDICATION AGENTS
BNP PARIBAS,
AS DOCUMENTATION AGENT
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
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BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Manager
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SIDLEY & AUSTIN
Bank One Plaza
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS....................................................................................1
SECTION 1.01. Definitions.......................................................................1
SECTION 1.02. Accounting Terms and Determinations..............................................13
SECTION 1.03. Types of Borrowings..............................................................14
ARTICLE II: THE CREDITS..................................................................................14
SECTION 2.01. Borrowings; Swingline Loans......................................................14
SECTION 2.02. Notice of Borrowing..............................................................16
SECTION 2.03. Notice to Banks; Funding of Loans................................................17
SECTION 2.04. Noteless Agreement; Evidence of Indebtedness.....................................19
SECTION 2.05. Maturity of Loans................................................................19
SECTION 2.06. Interest Rates...................................................................20
SECTION 2.07. Facility Fees and Utilization Fees...............................................20
SECTION 2.08. Optional Termination or Reduction of Commitments.................................21
SECTION 2.09. Mandatory Termination of Commitments.............................................21
SECTION 2.10. Prepayments......................................................................22
SECTION 2.11. General Provisions as to Payments................................................22
SECTION 2.12. Funding Losses...................................................................24
SECTION 2.13. Computation of Interest and Fees.................................................24
SECTION 2.14. Withholding Tax Exemption........................................................24
SECTION 2.15. Judgment Currency................................................................25
SECTION 2.16. Lending Installations............................................................25
ARTICLE III: CONDITIONS..................................................................................26
SECTION 3.01. Effectiveness....................................................................26
SECTION 3.02. All Borrowings...................................................................27
ARTICLE IV: REPRESENTATIONS AND WARRANTIES...............................................................27
SECTION 4.01. Corporate Existence and Power....................................................27
SECTION 4.02. Corporate and Governmental Authorization; No Contravention; Filing; No
Immunity.........................................................................28
SECTION 4.03. Binding Effect...................................................................28
SECTION 4.04. Financial Information............................................................29
SECTION 4.05. Litigation.......................................................................29
SECTION 4.06. Compliance with ERISA............................................................29
SECTION 4.07. Environmental Matters............................................................30
SECTION 4.08. Taxes............................................................................30
SECTION 4.09. Not an Investment Company........................................................30
SECTION 4.10. Compliance with Laws.............................................................30
SECTION 4.11. Foreign Employee Benefit Matters.................................................30
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ARTICLE V: COVENANTS.....................................................................................31
SECTION 5.01. Information......................................................................31
SECTION 5.02. Minimum Consolidated Net Worth...................................................33
SECTION 5.03. Limitations on Debt..............................................................33
SECTION 5.04. Negative Pledge..................................................................35
SECTION 5.05. Consolidations, Mergers and Sale of Assets.......................................36
SECTION 5.06. Compliance with Laws.............................................................36
SECTION 5.07. Use of Proceeds..................................................................36
SECTION 5.08. Insurance........................................................................36
SECTION 5.09. Inspection.......................................................................37
ARTICLE VI: DEFAULTS.....................................................................................37
SECTION 6.01. Events of Default................................................................37
SECTION 6.02. Notice of Default................................................................39
ARTICLE VII: THE AGENT...................................................................................39
SECTION 7.01. Appointment and Authorization....................................................39
SECTION 7.02. Agent and Affiliates.............................................................40
SECTION 7.03. Action by Agent..................................................................40
SECTION 7.04. Consultation with Experts........................................................40
SECTION 7.05. Liability of Agent...............................................................40
SECTION 7.06. Indemnification..................................................................40
SECTION 7.07. Credit Decision..................................................................40
SECTION 7.08. Successor Agent..................................................................41
SECTION 7.09. Agent's and Arranger's Fee.......................................................41
SECTION 7.10. Agent, Arranger, Documentation Agents, Syndication Agents........................41
ARTICLE VIII: CHANGE IN CIRCUMSTANCES....................................................................41
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.........................41
SECTION 8.02. Illegality.......................................................................42
SECTION 8.03. Increased Cost and Reduced Return................................................42
SECTION 8.04. Market Disruption................................................................44
SECTION 8.05. Substitute Loans.................................................................45
SECTION 8.06. Substitution of Bank.............................................................45
ARTICLE IX: MISCELLANEOUS................................................................................46
SECTION 9.01. Notices..........................................................................46
SECTION 9.02. No Waivers.......................................................................46
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.....................................46
SECTION 9.04. Sharing of Set-Offs..............................................................47
SECTION 9.05. Amendments and Waivers...........................................................48
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SECTION 9.06. Successors and Assigns...........................................................48
SECTION 9.07. Collateral.......................................................................51
SECTION 9.08. Confidentiality..................................................................51
SECTION 9.09. Severalty of Obligations.........................................................51
SECTION 9.10. Illinois Law; Submission to Jurisdiction.........................................51
SECTION 9.11. Counterparts; Integration........................................................51
SECTION 9.12. WAIVER OF JURY TRIAL; SERVICE OF PROCESS.........................................52
ARTICLE X: GUARANTY......................................................................................52
SECTION 10.01. Guarantee of Obligations.........................................................52
SECTION 10.02. Nature of Guaranty...............................................................53
SECTION 10.03. Waivers and Other Agreements.....................................................53
SECTION 10.04. Obligations Absolute.............................................................53
SECTION 10.05. No Investigation by Banks or Agent...............................................54
SECTION 10.06. Indemnity........................................................................54
SECTION 10.07. Subordination, Subrogation, Reinstatement, Etc...................................54
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Swingline Note
Exhibit C-1 - Form of Opinion of Counsel for the Company
Exhibit C-2 - Form of Opinion of Counsel for Masco Europe
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Notice of Borrowing
Exhibit E-1 - Form of Notice of Swingline Borrowing
Exhibit F - Form of Designation Agreement
SCHEDULES
Commitments Schedule
Pricing Schedule
Schedule 1 - Administrative Agent's Eurocurrency Payment Office
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5-YEAR REVOLVING CREDIT AGREEMENT
This 5-YEAR REVOLVING CREDIT AGREEMENT dated as of November 6,
2000 is among MASCO CORPORATION and MASCO EUROPE S.A.R.L., as borrowers, the
BANKS party hereto as lenders, COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, and CITIBANK, N.A., as Syndication Agents, BNP PARIBAS, as
Documentation Agent, and BANK ONE, NA, 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
becomes a Subsidiary after the date of this Agreement, Debt of such Person which
was outstanding before such Person became a Subsidiary and which was not created
in contemplation of such Person becoming a Subsidiary; provided that such Debt
shall no longer constitute "Acquired Debt" at any time that is more than six
months after such Person becomes a Subsidiary.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Company) duly completed by such Bank.
"AFFECTED BANK" has the meaning set forth in Section 8.06.
"AFFILIATE" means at any date a Person (other than a
Consolidated Subsidiary) whose earnings or losses (or the appropriate
proportionate share thereof) would be included in determining the Consolidated
Net Income of the Company and its Consolidated Subsidiaries for a period ending
on such date under the equity method of accounting for investments in common
stock (and certain other investments).
"AGENT" means Bank One, NA in its capacity as administrative
agent for the Banks hereunder, and its successors in such capacity.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments
of all the Banks, as reduced from time to time pursuant to the terms hereof.
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such
currencies remain Eligible Agreed Currencies, EURO, British Pounds Sterling,
Canadian Dollars and Danish Krone, and (iii) any other Eligible Agreed Currency
which the applicable Borrower requests the Swingline Lender to include as an
Agreed Currency hereunder and which is acceptable to the Swingline Lender. For
the purposes of this definition, each of the specific currencies referred to in
clause (ii), above, shall mean and be deemed to refer to the lawful currency of
the jurisdiction referred to in connection with such currency, e.g., "Danish
Krone" means the lawful currency of Denmark.
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"AGREEMENT," when used with reference to this Agreement, means
this 5-Year Revolving Credit Agreement dated as of November 6, 2000, 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 or the facility fees payable under Section 2.07, as the
case may be at any time, the percentage which is applicable at such time as set
forth in the Pricing Schedule.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect
to any amount of Dollars shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars on or as of such date, rounded up to the
nearest amount of such currency as determined by the Agent from time to time.
"ARRANGER" means Banc One Capital Markets, Inc.
"ASSIGNEE" has the meaning set forth in Section 9.06(C).
"BANK" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(C), and their
respective successors. For purposes of Sections 2.15, 2.16, 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 the Swingline Lender.
"BANK ONE" means Bank One, NA (Main office Chicago), a
national banking association.
"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).
"COMMITMENT" means (i) with respect to any Bank listed on the
Commitment Schedule, the amount set forth opposite the name of such Bank on the
Commitment Schedule, or (ii) with respect to any Assignee, the amount of the
transferor Bank's Commitment assigned to such Assignee pursuant to Section
9.06(C), in each case as such amount may be reduced from time to time pursuant
to Section 2.08 or 2.09 or changed as a result of an assignment pursuant to
Section 9.06(C).
"COMMITMENT PERCENTAGE" means at any date of determination,
with respect to
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any Bank, that percentage which the Commitment of such Bank then constitutes of
the Aggregate Commitment or, if the Commitments have expired or been terminated,
that percentage which the Commitment of such Bank constituted of the Aggregate
Commitment immediately prior to such expiration or cancellation.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached
hereto.
"COMPANY" means Masco Corporation, a Delaware corporation, and
its successors.
"COMPANY'S 1999 FORM 10-K" means the Company's annual report
on Form 10-K for the year ended December 31, 1999, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended.
"COMPANY'S EQUITY SECURITIES" means shares of any class of the
Company's capital stock or options, warrants or other equity rights to acquire
such shares.
"COMPUTATION DATE" is defined in Section 2.10(C).
"CONSOLIDATED ADJUSTED NET WORTH" means at any date (i)
Consolidated Net Worth at such date less (ii) the amount (if any) by which the
aggregate amount of all equity and other investments in Affiliates of the
Company reflected in such Consolidated Net Worth exceeds $250,000,000.
"CONSOLIDATED CURRENT ASSETS" means at any date the
consolidated current assets of the Company and its Consolidated Subsidiaries
determined as of such date.
"CONSOLIDATED DEBT" means at any date the Debt of the Company
and its Consolidated Subsidiaries (other than the guarantee obligations of the
Company pursuant to that certain Facility and Guaranty Agreement, dated as of
July 10, 2000, by and among the Company, Bank One, NA, as agent, and the other
financial institutions from time to time parties thereto), determined on a
consolidated basis as of such date.
"CONSOLIDATED NET INCOME" means, for any period, the
consolidated net income of the Company and its Consolidated Subsidiaries for
such period (considered as a single accounting period), but excluding the net
income or deficit of any Person (other than the equity in earnings or losses of
an Affiliate previously included in such consolidated net income determined
under the equity method of accounting for investments) prior to the effective
date on 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
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as of such date.
"CONSOLIDATED TOTAL LIABILITIES" means at any date the
aggregate of all liabilities or other items which would appear on the liability
side of a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of such date, except the amount so appearing which constitutes
Consolidated Net Worth.
"CONTINUING DIRECTOR" means any member of the Company's board
of directors who either (i) is a member of such board as of the Effective Date
or (ii) is thereafter elected to such board, or nominated for election by
stockholders, by a vote of at least two-thirds of the directors who are
Continuing Directors at the time of such vote; provided that an individual who
is so elected or nominated in connection with a merger, consolidation,
acquisition or similar transaction shall not be a Continuing Director unless
such individual was a Continuing Director prior thereto.
"CONVERSION/CONTINUATION NOTICE" is defined in Section
2.03(E).
"DEBT" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property,
except trade accounts payable, (iv) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (vi) all Debt of
others for which such Person is contingently liable. In calculating the amount
of any Debt at any date for purposes of this Agreement, accrued interest shall
be excluded to the extent that it would be properly classified as a current
liability for interest under the heading "Accrued liabilities" (and not under
the heading "Notes payable") in a balance sheet prepared as of such date in
accordance with the accounting principles and practices used in preparing the
balance sheet referred to in Section 4.04(A) and the related footnotes thereto.
"DEFAULT" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"DESIGNATION AGREEMENT" has the meaning set forth in Section
9.06(F)(i).
"DESIGNATED LENDER" means, with respect to each Designating
Lender, each Eligible Designee designated by such Designating Lender pursuant to
Section 9.06(F).
"DESIGNATING LENDER" means, with respect to each Designated
Lender, the Bank that designated such Designated Lender pursuant to Section
9.06(F).
"DM350,000,000 MULTICURRENCY REVOLVING CREDIT FACILITY" means
that certain DM350,000,000 Multicurrency Revolving Credit Facility evidenced by
that certain Credit Agreement, dated as of September 14, 1998, by and among
Masco GmbH, as borrower, the Company, as guarantor, the financial institutions
from time to time parties thereto, Commerzbank Aktiengsellschaft, as arranger
and Commerzbank International S.A., as agent, as
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the same may be amended, restated, supplemented or otherwise modified from time
to time.
"DM400,000,000 TERM LOAN FACILITY" means that certain
DM400,000,000 Term Loan Facility evidenced by that certain Credit Agreement,
dated as of July 9, 1997, by and among Masco GmbH, as borrower, the Company, as
guarantor, the financial institutions from time to time parties thereto,
Commerzbank Aktiengsellschaft, as arranger and Commerzbank International S.A.,
as agent, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"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 except a Saturday,
Sunday or other day on which commercial banks in Detroit, New York or Chicago
are authorized or required by law to close.
"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.
"EFFECTIVE DATE" has the meaning set forth in Section 3.01.
"ELIGIBLE DESIGNEE" means a special purpose corporation,
partnership, limited partnership or limited liability company that is
administered or sponsored by a Bank or an Affiliate of a Bank and (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged primarily in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and (iii) issues (or the parent of
which issues) commercial paper rated at least A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by ▇▇▇▇▇'▇.
"ELIGIBLE AGREED CURRENCY" means any currency other than
Dollars (i) that is readily available, (ii) that is freely traded, (iii) in
which deposits are customarily offered to banks in the London interbank market,
(iv) which is convertible into Dollars in the international interbank market and
(v) as to which an Equivalent Amount may be readily calculated. If, after the
designation by the Swingline Lender of any currency as an Agreed Currency, (x)
currency
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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 Swingline Lender,
no longer readily available or freely traded or (z) in the determination of the
Swingline Lender, an Equivalent Amount of such currency is not readily
calculable, the Swingline Lender shall promptly notify the Agent and the
applicable Borrower, and such currency shall no longer be an Agreed Currency
until such time as the Swingline Lender agrees to reinstate such currency as an
Agreed Currency and promptly, but in any event within five Business Days of
receipt of such notice from the Swingline Lender, the applicable Borrower shall
repay all Swingline Loans in such affected currency or convert such Swingline
Loans into Swingline Loans in Dollars or another Agreed Currency, subject to the
other terms set forth in Article II.
"ELIGIBLE SYNDICATED CURRENCY" means any currency other than
Dollars (i) that is readily available, (ii) that is freely traded, (iii) in
which deposits are customarily offered to banks in the London interbank market,
(iv) which is convertible into Dollars in the international interbank market and
(v) as to which an Equivalent Amount may be readily calculated. If, with respect
to any Syndicated Currency, (x) currency control or other exchange regulations
are imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, (y) such currency is, in the
determination of the Agent, no longer readily available or freely traded or (z)
in the determination of the Agent, an Equivalent Amount of such currency is not
readily calculable, the Agent shall promptly notify the Banks and the applicable
Borrower, and such currency shall no longer be a Syndicated Currency until such
time as all of the Banks agree to reinstate such currency as a Syndicated
Currency and promptly, but in any event within five Business Days of receipt of
such notice from the Agent, the applicable Borrower shall repay all Loans in
such affected currency or convert such Loans into Loans in Dollars, subject to
the other terms set forth in Article II.
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Union.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"EQUIVALENT AMOUNT" of any currency with respect to any amount
of Dollars at any date shall mean the equivalent in such currency of such amount
of Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA GROUP" means the Company, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.
"EURO" and/or "EUR" means the EURO referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the
European Union (as such currency moniker may change from time to time), or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of EMU.
"EUROCURRENCY BORROWING" is defined in Section 1.03.
"EUROCURRENCY BUSINESS DAY" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"EUROCURRENCY LENDING OFFICE" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Eurocurrency Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Eurocurrency Lending Office by
notice to the Company and the Agent.
"EUROCURRENCY LOAN" means a Loan to be made by a Bank which is
to bear interest at the Eurocurrency Rate in accordance with the applicable
Notice of Borrowing.
"EUROCURRENCY MARGIN" means a rate per annum determined in
accordance with the Pricing Schedule.
"EUROCURRENCY PAYMENT OFFICE" of the Agent shall mean, for
each of the Syndicated Currencies, the office, branch, affiliate or
correspondent bank of the Agent specified as the "Eurocurrency Payment Office"
for such currency in Schedule 1 hereto or such other office, branch, affiliate
or correspondent bank of the Agent as it may from time to time specify to the
Company, the relevant Borrowers and each Bank as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Loan
for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Eurocurrency Reserve Percentage, plus (ii) the Eurocurrency
Margin.
"EUROCURRENCY REFERENCE RATE" means, with respect to a
Eurocurrency Loan for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in the applicable
Syndicated Currency appearing on Reuters Screen FRBD or Reuters Screen FRBE, as
applicable, as of 11:00 a.m. (London time) two Eurocurrency Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD or Reuters Screen
FRBE is not available to the
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Agent for any reason, the applicable Eurocurrency Reference Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in the applicable Syndicated
Currency as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Eurocurrency Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available, the applicable Eurocurrency Reference Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which Bank One offers to place deposits in the applicable Syndicated
Currency with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Eurocurrency Business Days prior to the first day
of such Interest Period, in the approximate amount of Bank One's relevant
Eurocurrency Loan and having a maturity equal to such Interest Period.
"EUROCURRENCY RESERVE PERCENTAGE" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurocurrency Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING CREDIT AGREEMENTS" has the meaning set forth in
Section 3.01(F).
"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
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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
Plan, is required to be funded through a trust.
"GUARANTEED OBLIGATIONS" has the meaning set forth in Section
10.01(A).
"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- I by S&P and at least P- I by ▇▇▇▇▇'▇ or
(iii) time deposits with, including certificates of deposit issued by, any Bank
which was a party to this Agreement on the Effective 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,
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(B) with respect to each Floating Rate Borrowing, the period
commencing on the date of such Borrowing and ending 90 days thereafter
or other mutually agreeable period acceptable between Agent and the
Borrower; provided that:
(i) any Interest Period which would otherwise end on a
day which is not a Domestic Business Day shall be extended to
the next succeeding Domestic Business Day; and
(ii) no Borrower may select an Interest Period that
ends after the Termination Date.
(C) with respect to each Swingline Loan bearing a fixed rate
of interest, the period commencing on the date such Swingline Loan is
made by the Swingline Lender and ending on the date agreed to between
the Swingline Lender and the applicable Borrower in accordance with
Section 2.01(B).
"LENDING INSTALLATION" means, with respect to a Bank or the
Agent, the office, branch, subsidiary or affiliate of such Bank or the Agent
with respect to each Syndicated Currency listed on the administrative
information sheets provided to the Agent in connection herewith or otherwise
selected by such Bank or the Agent pursuant to Section 2.16.
"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 under the laws of the Grand Duchy of
Luxembourg, and its successors.
"MATERIAL DEBT" means Debt (other than the Loans) of the
Company and/or one or more of its Subsidiaries, arising (i) in one or more
related or unrelated transactions, in an aggregate outstanding principal amount
exceeding $50,000,000, (ii) under the 364-Day Credit Agreement, (iii) under the
DM400,000,000 Term Loan Facility, or (iv) under the DM350,000,000 Multicurrency
Revolving Credit Facility.
"MATERIAL FOREIGN PENSION PLAN" has the meaning set forth in
Section 6.01(I).
"MATERIAL PLAN" has the meaning set forth in Section 6.01(I).
"▇▇▇▇▇'▇" has the meaning set forth in the Pricing Schedule.
"MULTIEMPLOYER PLAN" means at any time an employee pension
benefit plan
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within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or, pursuant to an applicable
collective bargaining agreement, accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NATIONAL CURRENCY UNIT" means the unit of currency (other
than a EURO) of each member state of the European Union that participates in the
third stage of EMU.
"NOTES" means any promissory notes of the Borrowers,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrowers to repay the Loans, or the Swingline Note, as the case may be, and
"Note" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" is defined in Section 2.02.
"NOTICE OF SWINGLINE BORROWING" is defined in Section 2.02.
"PARENT" means, with respect to any Bank, any Person
controlling such Bank.
"PARTICIPANT" has the meaning set forth in Section 9.06(B).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Pricing Schedule attached hereto.
"PRIME RATE" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its Parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"PRIOR PLAN" means at any time (i) any Plan which at such time
is no longer maintained or contributed to by any member of the ERISA Group or
(ii) any Multiemployer Plan to which no member of the ERISA Group is at such
time any longer making contributions or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions.
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"REFUNDING BORROWING" means a Borrowing 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.
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REPLACEMENT BANK" has the meaning set forth in Section 8.06.
"REQUIRED BANKS" means at any time Banks having more than 50%
of the aggregate amount of the Commitments or, if the Commitments shall have
terminated, holding more than 50% of the aggregate unpaid principal amount of
the Loans.
"S&P" has the meaning set forth in the Pricing Schedule.
"SIGNIFICANT SUBSIDIARIES" means any of Masco Europe or any
one or more Subsidiaries which, if considered in the aggregate as a single
Subsidiary, would be a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the Securities Exchange Act of 1934. For purposes of this
Agreement, a type of event shall not be deemed to have occurred with respect to
Significant Subsidiaries unless such type of event has occurred with respect to
each of the Subsidiaries required to be included to constitute "Significant
Subsidiaries" as defined in the preceding sentence.
"SUBSIDIARY" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time owned by the Company or by the Company and one or more
Subsidiaries or by one or more Subsidiaries.
"SWINGLINE AMOUNT" is defined in Section 2.01(B).
"SWINGLINE LENDER" means Bank One.
"SWINGLINE LOAN" means any loan made by the Swingline Lender
pursuant to Section 2.01(B) and, if requested by the Swingline Lender, evidenced
by a Swingline Note.
"SWINGLINE NOTE" means any promissory note of the Borrowers
evidencing the Swingline Loans, in substantially the same form as Exhibit B
hereto, as amended, modified, supplemented or restated at the time such
Swingline Loan is made to the applicable Borrower.
"SYNDICATED CURRENCIES" means (i) Dollars and (ii) so long as
such currency shall remain an Eligible Syndicated Currency, EURO.
"SYNDICATION AGENTS" shall mean the Syndication Agents named
in the first paragraph of this Agreement.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day
Revolving Credit Agreement, dated as of November 6, 2000 among the Borrowers,
Bank One, NA, as Administrative Agent and the financial institutions from time
to time parties thereto as lenders,
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as the same may be amended, restated, supplemented or otherwise modified from
time to time.
"364-DAY REVOLVING TERMINATION DATE" is defined in Section
2.07.
"TERMINATION DATE" means November 4, 2005 or, if such day is
not a Eurocurrency Business Day, the next preceding Eurocurrency Business Day.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March
25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), as amended from time to time.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary
all of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent (and the Agent shall promptly notify each Bank of the contents of any such
notice) that the Company wishes to amend any covenant in Article V to eliminate
the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article V for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
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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 Effective 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 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 3.02(B)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing
limits, the Borrowers may borrow under this Section, repay, or to the
extent permitted by Section 2.10, prepay Loans and reborrow at any time
under this Section. 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 Currency other than
Dollars) during the period on and after the Effective Date to
but excluding the Termination Date in any Agreed Currency in
the aggregate principal Dollar Amount not to exceed the lesser
of (A) $150,000,000 (the "Swingline Amount") and (B) the
unused portion of the Aggregate Commitment as of such Business
Day. Each Swingline Loan shall be in a principal amount of
$1,000,000 or any integral multiple thereof, or if denominated
in an Agreed Currency other than Dollars, the Approximate
Equivalent Amount or such other minimum amounts and multiples
as the
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Swingline Lender shall determine. Each Swingline Loan shall
bear interest as set forth in Section 2.06. Each Swingline
Loan shall be repaid with interest on the thirtieth (30th) day
after such Swingline Loan is made (or such shorter period as
the Swingline Lender and the applicable Borrower shall have
agreed); provided, that upon receipt of written notice from
the applicable Borrower no fewer than four Eurocurrency
Business Days prior to such Swingline Loan's due date, the
Swingline Lender may in its sole and absolute discretion agree
to continue such Swingline Loan as a Swingline Loan for an
additional thirty (30) day period; provided, however, that no
Swingline Loan may be outstanding as a Swingline Loan for a
period greater than 180 consecutive days.
(ii) The Swingline Lender may at any time in its sole
and absolute discretion require that any Swingline Loan be
refunded by a Borrowing in Dollars to the applicable Borrower
from the Banks. If any Swingline Loan is not repaid by the
applicable Borrower on the date when due, each Bank will make
available a Borrowing the proceeds of which will be used to
repay the Swingline Loan. In each case, upon written notice
thereof by the Swingline Lender to the Agent, the Banks, the
relevant Borrower and the Company, the Company shall be deemed
to have requested a Borrowing in an amount equal to the Dollar
Amount of such Swingline Loan and such Borrowing shall be made
to refund such Swingline Loan (and the minimum amounts in
Section 2.01(A) are not applicable to such Borrowing). Any
Swingline Loan outstanding in an Agreed Currency other than
Dollars shall, upon the giving of such notice by the Swingline
Lender, immediately and automatically be converted to and
redenominated in Dollars equal to the Equivalent Amount of
each such Swingline Loan determined as of the date of such
conversion. Each Bank shall be absolutely and unconditionally
obligated to fund its Commitment Percentage of such Borrowing
or, if applicable, to purchase a participation interest in the
Swingline Loans pursuant to Section 2.01(B)(iii) and such
obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Bank has or may
have against the Swingline Lender, the Agent or the Company or
any of its Subsidiaries or anyone else for any reason
whatsoever (including without limitation any failure to comply
with the requirements of Section 3.02, other than the
Swingline Lender making a Swingline Loan when it had received
written notice from the Company, Masco Europe or any Lender of
the existence of a Default); (B) the occurrence or continuance
of a Default, subject to Section 2.01(B)(iii); (C) any adverse
change in the condition (financial or otherwise) of the
Company or any of its Subsidiaries; (D) any breach of this
Agreement by the Company or Masco Europe or any other Bank; or
(E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing (including
without limitation the Company's or Masco Europe's failure to
satisfy any conditions contained in Article III or any other
provision of this Agreement, so long as the Swingline Lender
did not have any specific written notice from the Company,
Masco Europe or a Bank that the conditions to making a
Swingline Loan were not satisfied at the time such Swingline
Loan was made).
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(iii) If, for any reason (including without limitation
as a result of the occurrence of a Default with respect to the
Company pursuant to Sections 6.01(G) or (H)) Loans may not be
made by the Banks as described in Section 2.01(B)(ii), then
(A) the relevant Borrower agrees that each Swingline Loan not
paid pursuant to Section 2.01(B)(ii) shall bear interest,
payable on demand by the Swingline Lender, at the rate per
annum equal to the sum of 2% plus the Floating Rate, (B) the
Borrowers agree that each Swingline Loan outstanding in an
Agreed Currency other than Dollars shall be immediately and
automatically converted to and redenominated in Dollars equal
to the Equivalent Amount of such Swingline Loan determined as
of the date of such conversion, and (C) effective on the date
each such Loan would otherwise have been made, each Bank
severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default,
in lieu of deemed disbursement of loans, to the extent of such
Bank's Commitment, purchase a participation interest in the
Swingline Loans by paying its Commitment Percentage thereof,
provided, however, that no Bank shall be obligated to purchase
such participation in a Swingline Loan made by the Swingline
Lender when it had received written notice from the Company,
Masco Europe or any lender of the existence of a Default. Each
Bank will immediately transfer to the Swingline Lender, in
same day funds, the amount of its participation. Each Bank
shall share based on its Commitment Percentage in any interest
which accrues thereon and in all repayments thereof. If and to
the extent that any Bank shall not have so made the amount of
such participating interest available to the Swingline Lender,
such Bank and the Company severally agree to pay to the
Swingline Lender forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the
Swingline Lender until the date such amount is paid to the
Swingline Lender, at (x) in the case of the Company, at the
interest rate specified above and (y) in the case of such
Bank, the Federal Funds Effective Rate for the first three
days and at the interest rate specified above thereafter.
SECTION 2.02. Notice of Borrowing. Each Borrower shall give
the Agent notice substantially in the form of Exhibit E (a "Notice of
Borrowing") not later than 10:00 a.m. (Detroit time) on (x) the date of each
Floating Rate Borrowing, (y) the third Eurocurrency Business Day before each
Eurocurrency Borrowing in Dollars to the Company, and (z) the fifth Eurocurrency
Business Day before each Eurocurrency Borrowing in EURO to the Company or in any
Syndicated Currency to Masco Europe, specifying:
(A) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Eurocurrency
Business Day in the case of a Eurocurrency Borrowing,
(B) the aggregate amount and Syndicated Currency of such
Borrowing,
(C) whether the Loans comprising such Borrowing are to be
Floating Rate Loans or Eurocurrency Loans, and
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(D) in the case of a Eurocurrency Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
The Company, or Masco Europe if authorized by the Company,
shall give the Swingline Lender notice of its request for each Swingline Loan
substantially in the form of Exhibit E-1 (a "Notice of Swingline Borrowing") not
later than 1:00 p.m. (Detroit time) on the same Business Day such Swingline Loan
in Dollars is requested to be made to the Company, and not later than the time
agreed upon by the applicable Borrower and the Swingline Lender with respect to
any other Swingline Loan. The Agent will make the Swingline Loans available to
the applicable Borrower at its relevant Eurocurrency Payment Office.
SECTION 2.03. Notice to Banks; Funding of Loans.
(A) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's
share (if any) of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(B) Not later than 12:00 Noon (Detroit time) on the date of
each Borrowing, and not later than 12:00 Noon (London time) on the date
of each Borrowing requested by Masco Europe, each Bank participating
therein shall (except as provided in subsection (C) of this Section)
make available its share of such Borrowing, in Federal or other funds
immediately available in Detroit or London, as the case may be, to the
Agent at its relevant address referred to in Section 9.01 or otherwise
specified in writing by the Agent to the Banks. Unless the Agent
determines that any applicable condition specified in Article III has
not been satisfied, the Agent will make the funds so received from the
Banks available to the Company at the Agent's aforesaid address in the
United States or, to Masco Europe by wire transfer in immediately
available funds to Masco Europe's account maintained at Bank One in
London, as applicable.
(C) If any Bank makes a new Loan hereunder on a day on which
the Borrower requesting such Loan is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the proceeds of
its new Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Bank to the Agent as
provided in subsection (B) of this Section, or remitted by such
Borrower to the Agent as provided in Section 2.11, as the case may be.
(D) Unless the Agent shall have received notice from a Bank
prior to the time of any Borrowing that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent
may assume that such Bank has made such share available to the Agent on
the date of such Borrowing in accordance with subsections (B) and (C)
of this Section and the Agent may, in reliance upon such assumption,
make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such
share available to the Agent, such Bank and the relevant Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to such Borrower until the date
such amount is repaid to the
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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
(ii) each such Eurocurrency Loan denominated in EURO
shall automatically continue as a Eurocurrency Loan in EURO
with an Interest Period of one month unless (x) such
Eurocurrency Loan is or was repaid in accordance with Section
2.10 or (y) the relevant Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurocurrency
Loan continue as a Eurocurrency Loan for the same or another
Interest Period.
Subject to the terms of Section 2.01(A), the Borrowers may
elect from time to time to convert all or any part of a Loan of any type into
any other type or types of Loans denominated in the same or any other Syndicated
Currency; provided that any conversion of any Eurocurrency Loan shall be made
on, and only on, the last day of the Interest Period applicable thereto. The
relevant Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion or continuation of a Loan
not later than 10:00 a.m. (Detroit time) at least one Domestic Business Day, in
the case of a conversion into or continuation of a Floating Rate Loan, three
Eurocurrency Business Days, in the case of a conversion into or continuation by
the Company of a Eurocurrency Loan denominated in Dollars, or five Eurocurrency
Business Days, in the case of either (x) a conversion into or continuation of a
Eurocurrency Loan denominated in EURO by the Company or (y) a conversion or
continuation of any Eurocurrency Loan by Masco Europe, prior to the date of the
requested conversion or continuation, specifying:
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(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 and (c) the amount of any sum
received by the Agent hereunder from each Borrower and each Bank's
share thereof.
(C) The entries maintained in the accounts maintained pursuant
to paragraphs (A) and (B) above shall be prima facie evidence of the
existence and amounts of the Loans (including the principal and
interest owing) therein recorded; provided, however, that the failure
of the Agent or any Bank to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay
the Loans (including the principal and interest owing) in accordance
with their terms.
(D) Any Bank or the Swingline Lender may request that its
Loans be evidenced by a Note. In such event, each Borrower requested by
such Bank or the Swingline Lender shall prepare, execute and deliver to
such Bank or Swingline Lender, as the case may be, a Note payable to
the order of such Bank or Swingline Lender in substantially the form of
Exhibit A in the case of any Bank or the form of Exhibit B in the case
of the Swingline Lender. Thereafter, the Loans evidenced by such Note
and interest thereon shall at all times (including after any assignment
pursuant to this Agreement) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to
this Agreement, except to the extent that any such Bank or assignee
subsequently returns any such Note for cancellation and requests that
such Loans once again be evidenced as described in paragraphs (A) and
(B) above.
SECTION 2.05. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
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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 Eurocurrency Business Days, then for such other period
of time not longer than six months as the Agent may elect, or, if the
circumstances described in Section 8.01 shall exist, at a rate
per annum equal to the sum of 2% plus the Floating Rate for such day).
(D) Each Swingline Loan shall bear interest (a) for Dollar
denominated Swingline Loans, at such rate as shall be quoted by the
Swingline Lender to the relevant Borrower, but which interest rate
shall not exceed the Floating Rate, and (b) for Swingline Loans
denominated in an Agreed Currency other than Dollars, at the applicable
local rate of interest as determined by the Swingline Lender and quoted
by the Swingline Lender to the relevant Borrower as adjusted for
associated cost rates or other applicable reserve rate, as applicable,
and, in each case, as agreed between the relevant Borrower and the
Swingline Lender at the time such Swingline Loan is made.
(E) The Agent shall determine each interest rate applicable to
the Loans (other than Swingline Loans) hereunder. The Swingline Lender
shall determine each interest rate applicable to the Swingline Loans
hereunder. The Agent shall give prompt notice to the relevant Borrowers
and the participating Banks, and the Swingline Lender shall give prompt
notice to the relevant Borrowers and the Agent, in each case, by telex,
cable or facsimile of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest
error (provided that the determination of such amount or amounts is
made on a reasonable basis).
SECTION 2.07. Facility Fees and Utilization Fees. 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
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Pricing Schedule. Such facility fee shall accrue for each day (i) from and
including the Effective 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 shall be repaid in their entirety, on the aggregate principal amount
of the Loans outstanding on such day. Fees accrued under this Section shall be
payable quarterly in arrears on the date fifteen days after the last day of each
March, June, September and December and upon the termination of the Commitments
in their entirety (and, if later, the date the Loans shall be repaid in their
entirety). Prior to the earlier of (a) the date of termination of the
"Commitments" and the repayment in full in cash of all of the "Loans" under (and
as such terms are defined in) the 364-Day Credit Agreement and (b) the
"Conversion Date" (as defined in the 364-Day Credit Agreement) (such date being
the "364-Day Revolving Termination Date"), for each day on which the sum of (x)
the aggregate principal amount of outstanding Loans hereunder plus (y) the
aggregate principal amount of outstanding "Loans" under (and as defined in) the
364-Day Credit Agreement exceeds 33% of the sum of (i) the Aggregate Commitment
hereunder plus (ii) the "Aggregate Commitment" under (and as defined in) the
364-Day Credit Agreement, a utilization fee at the per annum rate set forth on
the Pricing Schedule will accrue on the aggregate principal amount of
outstanding Loans for the ratable benefit of the Banks. From and after the
364-Day Revolving Termination Date, for each day on which the aggregate
principal amount of outstanding Loans exceeds 33% of the Aggregate Commitment, a
utilization fee at the per annum rate set forth on the Pricing Schedule will
accrue on the aggregate principal amount of outstanding Loans for the ratable
benefit of the Banks. No utilization fee shall accrue on the Swingline Loans.
For any date of determination, such utilization fee shall be calculated using
(i) for each Eurocurrency Loan, the Dollar Amount of such Eurocurrency Loan
determined as of the date two Eurocurrency Business Days prior to the Borrowing
Date, or, if applicable, date of conversion/continuation, of such Eurocurrency
Loan, (ii) for each Swingline Loan bearing a fixed rate of interest, the Dollar
Amount of such Swingline Loan determined as of the date the Swingline Lender
shall quote such fixed rate of interest to the applicable Borrower, and (iii)
for each Swingline Loan bearing a floating rate of interest, the Dollar Amount
of such Swingline Loan determined as of such date of determination.
SECTION 2.08. Optional Termination or Reduction of
Commitments.
(A) The Company may, upon at least three Eurocurrency Business
Days' notice to the Agent, (i) terminate the Commitments at any time,
if no Loans 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.
(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 then
outstanding (together with accrued
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interest thereon) shall be due and payable on such date (or such earlier date as
the Loans shall become due and payable pursuant to Article VI).
SECTION 2.10. Prepayments.
(A) The Borrowers (i) may prepay any Floating Rate Borrowing
or Swingline Loan at any time without penalty on the same day or (ii)
upon at least five Eurocurrency Business Days' notice to the Agent,
subject to Section 2.12, prepay any Eurocurrency Borrowing, in whole at
any time, or from time to time in part in amounts aggregating
$10,000,000 or any larger multiple of $1,000,000 (or the Approximate
Equivalent Amounts if denominated in EURO), by paying the principal
amount to be prepaid together with accrued interest thereon to the date
of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(B) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
(C) The Agent will determine the Dollar Amount of (i) each
Eurocurrency Borrowing as of the date two Eurocurrency Business Days
prior to the Borrowing Date, or if applicable, date of
conversion/continuation of such Borrowing, and (ii) all outstanding
Borrowings (including all Swingline Loans) on and as of the last
Eurocurrency Business Day of each quarter and on any other Eurocurrency
Business Day elected by the Agent in its discretion or upon instruction
by the Required Banks. Each day upon or as of which the Agent
determines Dollar Amounts as described in the preceding sentence is
herein described as a "Computation Date". If, on any Computation Date,
as a result of fluctuations in currency exchange rates the Dollar
Amount of (A) the aggregate principal amount of all outstanding Loans
exceeds one hundred five percent of the Aggregate Commitment, or (B)
the aggregate principal amount of all Eurocurrency Loans denominated in
EURO exceeds $787,500,000, or (C) the aggregate principal amount of all
outstanding Swingline Loans exceeds one hundred five percent of the
Swingline Amount, the Borrowers shall (x) in the case of an event
described in clause (A) above, immediately repay Loans in an aggregate
principal amount sufficient to eliminate any such excess and (y) in the
case of an event described in clause (B) or (C) above, on the earlier
of the next succeeding date of Borrowing of any Loan or date of
conversion or continuation of any Loan, repay the Loans in an aggregate
principal amount sufficient to eliminate any such excess.
SECTION 2.11. General Provisions as to Payments.
(A) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 1:00 p.m.
(local time) in the relevant currency on the date when due to the Agent
at its address referred to in Section 9.01 or at any other Lending
Installation of the Agent with respect to such obligation as specified
in writing by the Agent to the Borrowers. Whenever any payment of
principal of, or
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interest on, the Floating Rate Loans or of 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 Rate for the first three days
and at the Floating Rate thereafter.
(C) Each Loan shall be repaid and each payment of interest
thereon shall be paid in the currency in which such Loan was made or,
where such currency has converted to the EURO, in the EURO. All
payments required to be made by the Borrowers in Dollars hereunder will
be made in immediately available funds and all payments required to be
made by the Borrowers in a currency other than Dollars will be made in
the required currency and in same day or such other funds as the Agent
may determine to be customary for the settlement of deposits in such
currency at its Eurocurrency Payment Office for such currency and shall
be applied ratably by the Agent among the Banks. Each payment delivered
to the Agent for the account of any Bank shall be delivered promptly by
the Agent to such Bank in the same type of funds that the Agent
received at, (a) with respect to Floating Rate Loans and Eurocurrency
Loans denominated in Dollars, its address specified pursuant to Section
9.01 or at any Lending Installation specified in a notice received by
the Agent from such Bank and (b) with respect to Eurocurrency Loans
denominated in EURO, in the funds received from the Borrower at the
address of the Agent's Eurocurrency Payment Office for such currency.
The Agent is hereby authorized to charge any account of the relevant
Borrower designated by such Borrower as the account from which payments
are to be made and maintained with Bank One or any of its affiliates
for each payment of principal, interest and fees as it becomes due
hereunder.
(D) Subject to Section 2.14, all payments of principal of and
interest on the Loans and other amounts payable by the Borrowers to any
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
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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 other amounts
payable hereunder, after withholding or deduction for or on account
thereof, will not be less than any amount provided to be paid
hereunder.
SECTION 2.12. Funding Losses. If any Borrower makes any
payment of principal with respect to any Eurocurrency Loan (pursuant to Section
2.10, Article VI, Article VIII or otherwise) on any day other than the last day
of the Interest Period applicable thereto, or if any Borrower fails to borrow
any Eurocurrency Loan after notice has been given to any Bank in accordance with
Section 2.03(A) or if any Borrower fails to prepay any Eurocurrency Loan after
notice has been given to any Bank in accordance with Section 2.10(B), such
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or failure to borrow,
provided that such Bank shall have delivered to such Borrower a certificate as
to the amount of such loss or expense, which certificate shall be conclusive in
the absence of manifest error, provided that the determination of such loss or
expense is made on a reasonable basis.
SECTION 2.13. Computation of Interest and Fees. Interest on
Floating Rate Loans based on the Prime Rate and Swingline Loans shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first day but
excluding the last day) (unless otherwise agreed to for Swingline Loans between
the Swingline Lender and the applicable Borrower). All other interest and fees
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
SECTION 2.14. Withholding Tax Exemption.
(A) At least five Domestic Business Days prior to the first
date on which interest or fees are payable hereunder for the account of
any Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver
to each of the Company and the Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI and any
additional forms necessary for claiming complete exemption from United
States withholding taxes (or any successor or substitute forms),
certifying in either case that such Bank is entitled to receive
payments under this Agreement and the Loans 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
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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 without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and such
Bank advises the Company and the Agent that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
(B) For any period with respect to which a Bank has failed to
provide the Company, the Agent or the relevant Borrower with the
appropriate form as required by the foregoing subsection (unless such
failure is due to a change in treaty, law or regulation occurring after
the date on which such form originally was required to be provided),
such Bank shall not be entitled to compensation pursuant to the last
sentence of Section 2.11(D).
SECTION 2.15. Judgment Currency. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due from any
Borrower hereunder in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the specified currency with such other currency at the Agent's
main Chicago office on the Eurocurrency Business Day preceding that on which
final, non-appealable judgment is given. The obligations of such Borrower in
respect of any sum due to any Bank or the Agent hereunder shall, notwithstanding
any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Eurocurrency Business Day following receipt by such
Bank or the Agent (as the case may be) of any sum adjudged to be so due in such
other currency such Bank or the Agent (as the case may be) may in accordance
with normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Bank or the Agent, as the case may be,
in the specified currency, such Borrower agrees, to the fullest extent that it
may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or the Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Bank or the Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank under
Section 9.04, such Bank or the Agent, as the case may be, agrees to remit such
excess to such Borrower.
SECTION 2.16. Lending Installations. Each Bank will book its
Loans 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 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
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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.
ARTICLE III: CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become
effective on the date it is signed by all parties hereto, provided that neither
the Company nor Masco Europe may obtain funding of any Loans hereunder until the
date (the "Effective Date") which is the later of November 6, 2000 or the date
on which each of the following conditions shall have been satisfied (or waived
in accordance with Section 9.05):
(A) receipt by the Agent of counterparts hereof signed by 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) receipt by the Agent of an opinion of (x) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President-General Counsel of the Company, substantially in
the form of Exhibit C-1 hereto and (y) ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Lagae &
▇▇▇▇▇▇, 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;
(C) receipt by the Agent of a certificate of a duly authorized
officer of the Company, dated the Effective Date, certifying that (i)
as of such date no Default shall have occurred and be continuing, (ii)
as of such date the representations and warranties of the Company
contained in this Agreement are true in all material respects and (iii)
as of such date there has been no material adverse change in the
business condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries, considered
as a whole, from that reflected in the financial statements referred to
in Section 4.04(A);
(D) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Company and Masco Europe, the
corporate authority for and the validity of this Agreement and the
Loans, and any other matters relevant hereto, all in form and substance
satisfactory to the Agent;
(E) receipt by the Agent of a certificate of the chief
financial officer or chief accounting officer of the Company setting
forth in reasonable detail the calculations required to establish
whether the Company is in compliance with the requirements of Sections
5.02 to 5.04 inclusive as of last day of the most recently completed
fiscal quarter for which financial statements have been made publicly
available; and
(F) receipt by the Agent of evidence reasonably satisfactory
to it that, concurrently with the Banks making the initial Loans
hereunder, (x) all amounts
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outstanding under each of (i) that certain $1,000,000,000 Amended and
Restated Credit Agreement dated March 20, 2000 among the Company, the
banks parties thereto and Bank One, NA, as administrative agent, and
(ii) that certain $750,000,000 Amended and Restated Credit Agreement,
dated as of November 14, 1996, among the Company, the banks parties
thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as agent
(together, the "EXISTING CREDIT AGREEMENTS"), shall be paid in full,
and (y) each of the Existing Credit Agreements shall be terminated.
SECTION 3.02. All Borrowings. The obligation of any Bank to
make a Loan on the occasion of any Borrowing, or the Swingline Lender to make
any Swingline Loan hereunder, is subject to the satisfaction of the following
conditions:
(A) receipt by (i) the Agent of a Notice of Borrowing or (ii)
the Swingline Lender of a Notice of Swingline Borrowing, as applicable,
as required by Section 2.02;
(B) the fact that, immediately after such Borrowing or
Swingline Loan, (i) the aggregate outstanding Dollar Amount of the
Loans will not exceed the Aggregate Commitment, (ii) the aggregate
outstanding Dollar Amount of Eurocurrency Loans denominated in EURO
will not exceed $750,000,000, and (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;
(C) the fact that, immediately before and after such Borrowing
or Swingline Loan, (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 or any Swingline Loan, as applicable, 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, 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 or Swingline Loan, as applicable.
Each Borrowing or Swingline Loan made hereunder shall be
deemed to be a representation and warranty by the Borrower requesting such
Borrowing or Swingline Loan on the date of such Borrowing or Swingline Loan, as
applicable, as to the facts specified in clauses (B), (C) and (D) of this
Section.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company and
its Domestic Subsidiaries and Masco Europe are duly organized, validly existing
and in good standing under the laws of their respective jurisdiction of
formation, and have all requisite powers and all material governmental licenses,
authorizations, consents and approvals required to carry on their businesses,
considered as a whole, substantially as now conducted.
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SECTION 4.02. Corporate and Governmental Authorization; No
Contravention; Filing; No Immunity.
(A) The execution, delivery and performance by the Company and
Masco Europe of this Agreement and the Notes are within the Company's
and Masco Europe's respective corporate powers, have been duly
authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or
official (except filings under the Securities Exchange Act of 1934) and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or
by-laws or other constitutive documents of the Company or Masco Europe
or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or Masco Europe or result in the
creation or imposition of any Lien on any asset of the Company or any
of its Subsidiaries.
(B) To ensure the enforceability or admissibility in evidence
of this Agreement and each Note to which Masco Europe is a party in
Luxembourg, it is not necessary that this Agreement or any such Note to
which Masco Europe is a party or any other document be filed or
recorded with any court or other authority in Luxembourg or that any
stamp or similar tax be paid to or in respect of this Agreement or any
such Note. The qualification by any Bank or the Agent for admission to
do business under the laws of Luxembourg does not constitute a
condition to, and the failure to so qualify does not affect, the
exercise by any Bank or the Agent of any right, privilege, or remedy
afforded to any Bank or the Agent in connection with this Agreement or
any Note to which such Masco Europe is a party or the enforcement of
any such right, privilege, or remedy against Masco Europe. The
performance by any Bank or the Agent of any action required or
permitted under this Agreement or any Note will not (i) violate any law
or regulation of Luxembourg or any political subdivision thereof, (ii)
result in any tax or other monetary liability to such party pursuant to
the laws of Luxembourg or political subdivision or taxing authority
thereof (other than taxes on the overall net income of such Bank or its
Applicable Lending Office or franchise or similar taxes imposed by
Luxembourg to the extent such Bank or its Applicable Lending Office
shall be situated in 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
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creditors' rights generally and by general principles of equity, and the Notes
when executed and delivered in accordance with this Agreement will constitute
valid and binding obligations of the Company and Masco Europe enforceable
against it in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
SECTION 4.04. Financial Information.
(A) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1999 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 1999 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, 2000 and the
related unaudited condensed statements of consolidated income and
consolidated cash flows for the three months then ended, set forth in
the Company's quarterly report for the fiscal quarter ended June 30,
2000 as filed with the Securities and Exchange Commission on Form 10-Q,
a copy of which has been delivered to each of the Banks, fairly
present, on a basis consistent with the financial statements referred
to in subsection (A) of this Section, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for
such three-month period (subject to normal year-end adjustments).
(C) There has been no material adverse change since December
31, 1999 in the business or financial position of the Company and its
Consolidated Subsidiaries, considered as a whole, as reflected in the
financial statements referred to in subsection (B) of this Section.
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, is likely 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.
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
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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, 1996. The Company and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes shown as due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary, except such taxes, if any, as are being contested in good
faith and as to which, in the opinion of the Company, adequate reserves have
been provided. The charges, accruals and reserves on the books of the Company
and its Subsidiaries in respect of taxes or other like governmental charges are,
in the opinion of the Company, adequate.
SECTION 4.09. Not an Investment Company. The Company is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10. Compliance with Laws. The Company complies, and
has caused each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where (i) the necessity
of compliance therewith is contested in good faith by appropriate proceedings,
(ii) no officer of the Company is aware that the Company or the relevant
Subsidiary has failed to comply therewith or (iii) the Company has reasonably
concluded that failure to comply is not likely to have a material adverse effect
on the business, financial position or results of operations of the Company and
its Consolidated Subsidiaries, taken as a whole.
SECTION 4.11. Foreign Employee Benefit Matters. (a) Each
Material Employee Benefit Plan is in compliance with all laws, regulations and
rules applicable thereto and the
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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 otherwise hereunder
remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of
the Banks:
(A) as soon as available and in any event within 95 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income and cash flows
for such Fiscal Year, setting forth in each case in comparative form
the corresponding figures for the previous Fiscal Year, all reported on
by PricewaterhouseCoopers LLP or other independent public accountants
of nationally recognized standing, whose report shall be without
material qualification;
(B) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each Fiscal Year, a
condensed consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter, the related
condensed consolidated statement of income for such quarter and the
related condensed consolidated statements of income and cash flows for
the portion of such Fiscal Year ended at the end of such quarter,
setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all
in reasonable detail and certified, to the best of his knowledge
(subject to normal year-end adjustments), as to fairness of
presentation, and consistency with generally accepted accounting
principles (except for changes concurred in by the Company's
independent public accountants) by the chief financial officer or the
chief accounting officer of the Company;
(C) simultaneously with the delivery of each set of financial
statements referred to in clauses (A) and (B) above, a certificate of
the chief financial officer or the
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chief accounting officer 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 15 days after any officer of the Company becomes
aware of the existence of any Default, unless such Default shall have
been cured before the end of such 15 day period, a certificate of the
chief financial officer or the chief accounting officer of the Company
setting forth the details of such Default and the action which the
Company is taking or proposes to take with respect thereto;
(E) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(F) promptly upon the filing thereof, copies of all reports on
Forms 10-K, 10-Q and 8-K and similar regular and periodic reports which
the Company shall have filed with the Securities and Exchange
Commission;
(G) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice, (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer
or the chief accounting officer of the Company setting forth details as
to such occurrence and action, if any, which the Company or applicable
member of the ERISA Group is required or proposes to take; provided
that no such certificate shall be required unless the aggregate unpaid
actual or potential liability of members of the ERISA Group involved in
all events referred to in clauses (i) through (vii) above of which
officers of the Company have obtained knowledge and have not previously
reported under this clause (G) exceeds $25,000,000;
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(H) promptly and in any event not more than 5 days after any
officer of the Company becomes aware of the occurrence of any event
which would cause the representations and warranties set forth in
Section 4.11 to be in breach as of such date, a certificate of the
chief financial officer or chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which
the Company or applicable Subsidiary of the Company is required or
proposes to take;
(I) immediately after any officer of the Company obtains
knowledge of a change in the rating of the Company's outstanding senior
unsecured long-term debt securities by ▇▇▇▇▇'▇ or S&P, a certificate of
the chief financial officer or chief accounting officer of the Company
setting forth the details thereof; and
(J) 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, may reasonably request.
SECTION 5.02. Minimum Consolidated Net Worth. At no time will
Consolidated Net Worth be less than Minimum Consolidated Net Worth. "Minimum
Consolidated Net Worth" means $2,650,000,000; provided that such amount shall be
adjusted at the end of each Fiscal Quarter commencing with the Fiscal Quarter
ending on March 31, 2001, as follows:
(A) increased by 33% of Consolidated Net Income for such
Fiscal Quarter; provided that, if Consolidated Net Income for such
Fiscal Quarter is a negative number (a "Consolidated Net Loss"), an
amount up to 33% of such Consolidated Net Loss shall be applied first
to reduce Minimum Consolidated Net Worth to the extent of offsetting
prior increases (if any) in Minimum Consolidated Net Worth made
pursuant to this clause (A) during the same Fiscal Year and second to
reduce (but not below zero) any future increase in Minimum Consolidated
Net Worth that would otherwise be made pursuant to this clause (A)
during the same Fiscal Year; and
(B) 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 (B) 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 (B) 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 (B).
SECTION 5.03. Limitations on Debt.
(A) The Company will not at any time, and will not suffer or
permit any Consolidated Subsidiary at any time to, create, incur,
issue, guarantee or assume any
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Debt if, immediately after giving effect thereto, the ratio of (i)
Consolidated Debt to (ii) the sum of Consolidated Debt and Consolidated
Adjusted Net Worth would exceed 55%.
(B) The Company will not at any time suffer or permit any
Consolidated Subsidiary to create, incur, issue, guarantee or assume
any Debt if, immediately after giving effect thereto, the aggregate
outstanding amount (determined at that time) of Debt of all
Consolidated Subsidiaries (other than Debt owed to the Company or one
or more other Consolidated Subsidiaries) would exceed 30% of
Consolidated Net Worth.
(C) Subsections (A) and (B) above shall not prevent (i) the
Company from creating, incurring, issuing, guaranteeing or assuming
Debt for the purpose of extending, renewing or Refunding (as such term
is defined in this subsection) an equal or greater principal amount of
Debt then outstanding of the Company or of Debt then outstanding of a
Consolidated Subsidiary, or (ii) a Consolidated Subsidiary from
creating, incurring, issuing, guaranteeing or assuming Debt for the
purpose of extending, renewing or Refunding an equal or greater
principal amount of Debt then outstanding of such Consolidated
Subsidiary, or (iii) the creation, incurrence, issuance, guarantee or
assumption of Debt owed to or owned by the Company or a Consolidated
Subsidiary; provided, that in no event shall the aggregate principal
amount of any such extending, renewing or Refunding Debt under clause
(i) or (ii) above exceed the aggregate principal amount of the Debt
being extended, renewed or Refunded. For purposes of this subsection
(C), Debt is deemed to be for the purpose of "Refunding" other Debt if
and to the extent that (i) no later than 5 Domestic Business Days after
the refunding Debt is incurred, the Company delivers to the Agent
written notice stating that the purpose of such Debt is to refund
outstanding Debt and specifying the Debt to be refunded, (ii) the
proceeds of such refunding Debt are held in the form of cash or High
Quality Investments (free of any Lien except a Lien securing the
specified Debt to be refunded) until such specified Debt is repaid and
(iii) such specified Debt to be refunded is repaid within 45 days after
the refunding Debt is incurred.
(D) For purposes of the limitations provided in, and
computations under, this Section, (i) when an entity becomes a
Consolidated Subsidiary it shall be deemed to create at such time all
the Debt it has outstanding immediately after such time (provided that,
if after giving effect to this clause (i), the aggregate outstanding
amount of Debt of all Consolidated Subsidiaries (other than Debt owed
to the Company or one or more other Consolidated Subsidiaries) would be
greater than 30% but less than 60% of Consolidated Net Worth, this
clause (i) shall not apply at the time such entity becomes a
Consolidated Subsidiary, but such entity shall be deemed to create on
the 15th day after it becomes a Consolidated Subsidiary all the Debt it
has outstanding on such 15th day), (ii) the disposition (other than to
a Consolidated Subsidiary or the Company) by the Company or a
Subsidiary of capital stock of any Consolidated Subsidiary which holds
Debt of the Company or any other Consolidated Subsidiary so that the
Consolidated Subsidiary ceases to be a Consolidated Subsidiary after
such disposition shall be deemed the creation of such Debt, and (iii)
the disposition (other than to a Consolidated Subsidiary or the
Company) of Debt of the Company or any Consolidated Subsidiary by any
Consolidated Subsidiary or the Company shall be deemed the creation of
such Debt.
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SECTION 5.04. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(A) Liens existing on June 30, 2000 securing Debt outstanding
on June 30, 2000 in an aggregate principal amount not exceeding
$50,000,000;
(B) any Lien existing on any asset of any entity at the time
such entity becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(C) any Lien on any asset securing Debt incurred or assumed
solely for the purpose of financing all or any part of the cost of
acquiring such asset (or acquiring a corporation or other entity which
owned such asset); provided that such Lien attaches to such asset
concurrently with or within 90 days after such acquisition;
(D) any Lien on any asset of any entity existing at the time
such entity is merged or consolidated with or into the Company or a
such Consolidated Subsidiary and not created in contemplation of such
event;
(E) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(F) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section; provided that such Debt is
not increased and is not secured by any additional assets;
(G) any Lien in favor of the holder of indebtedness (or any
Person or entity acting for or on behalf of such holder) arising
pursuant to any order of attachment, distraint or similar legal process
arising in connection with court proceedings so long as the execution
or other enforcement thereof is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate
proceedings and no Default under Section 6.01(J) shall have occurred
and is continuing in connection therewith;
(H) Liens incidental to the normal conduct of its business or
the ownership of its assets which (i) do not secure Debt, (ii) do not
secure any obligation in an amount exceeding $100,000,000 and (iii) do
not in the aggregate materially detract from the value of the assets of
the Company and its Consolidated Subsidiaries taken as a whole or in
the aggregate materially impair the use thereof in the operation of the
business of the Company and its Consolidated Subsidiaries taken as a
whole; and
(I) Liens securing Debt which are not otherwise permitted by
the foregoing clauses of this Section; provided that (i) the aggregate
outstanding principal amount of Debt secured by all such Liens on
current assets shall not at any time exceed 20% of Consolidated Current
Assets and (ii) the aggregate outstanding principal amount of Debt
secured by all such Liens (including Liens referred to in clause (i) of
this proviso) shall not at any time exceed the sum of (A) 20% of
Consolidated Current Assets plus (B) 3% of Consolidated Net Worth.
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SECTION 5.05. Consolidations, Mergers and Sale of Assets.
(A) Neither the Company nor Masco Europe will directly or
indirectly sell, lease, transfer or otherwise dispose of all or
substantially all of its assets, or merge or consolidate with any other
Person, or acquire any other Person through purchase of assets or
capital stock, unless either (i) the Company or Masco Europe, as
applicable, shall be the continuing or surviving corporation or (ii)
the successor or acquiring corporation (if other than the Company or
Masco Europe, as applicable) shall be a corporation organized under the
laws of (x) one of the States of the United States of America in the
case of a merger or consolidation of the Company, or (y) the Grand
Duchy of Luxembourg in the case of a merger or consolidation of Masco
Europe and shall assume, by a writing satisfactory in form and
substance to the Required Banks, all of the obligations of the Company
or Masco Europe, as applicable, under this Agreement and the Notes,
including all covenants herein and therein contained, in which case
such successor or acquiring corporation shall succeed to and be
substituted for the Company or Masco Europe, as applicable, with the
same effect as if it had been named herein as a party hereto.
(B) No disposition of assets, merger, consolidation or
acquisition referred to in subsection (A) of this Section shall be
permitted if, immediately after giving effect thereto, the Company
would be in Default under any of the terms or provisions of this
Agreement.
SECTION 5.06. Compliance with Laws. The Company will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except where (i) the necessity
of compliance therewith is contested in good faith by appropriate proceedings,
(ii) no officer of the Company is aware that the Company or any Subsidiary has
failed to comply therewith or (iii) the Company has reasonably concluded that
failure to comply is not likely to have a material adverse effect on the
business, financial position or results of operations the Company and its
Consolidated Subsidiaries, taken as a whole.
SECTION 5.07. Use of Proceeds. The Borrowers shall use the
proceeds of the Loans to provide funds for general corporate purposes,
including, commercial paper liquidity, acquisitions, refinancing of Debt
(including, without limitation, Debt under the agreements described in Section
3.01(F)) and working capital purposes. None of the proceeds of the Loans made
under this Agreement will be used in violation of any applicable law or
regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System).
SECTION 5.08. Insurance. The Company and its Consolidated
Subsidiaries considered as a whole will maintain with financially sound and
reputable insurance companies insurance in such amounts and covering such risks
as is consistent with sound business practice, and the Company will furnish to
the Agent upon request full information as to the insurance carried; provided,
that the Company and its Subsidiaries may self-insure to the extent in the
Company reasonably determines that such self insurance is consistent with
prudent business practice.
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SECTION 5.09. Inspection. The Company will, and will cause
each Subsidiary to, permit the Agent, by its representatives and agents, to
inspect any of the property, books and financial records of the Company and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Company and each Subsidiary, and to discuss the
affairs, finances and accounts of the Company and each Subsidiary with, and to
be advised as to the same by, their respective officers at such times and
intervals, having due regard for the ongoing business of the Company and its
Subsidiaries, as the Agent may reasonably request.
ARTICLE VI: DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(A) any Borrower shall fail to pay when due any principal of
any Loan, or shall fail to pay within five days of the due date thereof
any interest or fees payable under this Agreement;
(B) the Company shall fail to observe or perform any covenant
contained in Sections 5.02 to 5.05, inclusive;
(C) the Company or Masco Europe shall fail to observe or
perform any covenant or agreement contained in this Agreement (other
than those covered by clause (A) or (B) above) for 30 days after
written notice thereof has been given to the Company by the Agent at
the request of any Bank;
(D) any representation, warranty, certification or statement
made by the Company or Masco Europe in this Agreement or any amendment
hereof or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made or deemed to have been made; provided
that, if any representation and warranty deemed to have been made by
the Company or Masco Europe pursuant to the last sentence of Section
3.02 as to the satisfaction of the condition of borrowing set forth in
clause (C)(i) of Section 3.02 shall have been incorrect solely by
reason of the existence of an Event of Default of which the Company was
not aware when such representation and warranty was deemed to have been
made and which was cured before or promptly after the Company became
aware thereof, then such representation and warranty shall be deemed
not to have been incorrect in any material respect;
(E) the Company or any of its Consolidated Subsidiaries shall
fail to make one or more payments in respect of any Material Debt
(other than Acquired Debt in an aggregate outstanding principal amount
not exceeding $75,000,000) when due or within any applicable grace
period, and such failure has not been waived;
(F) the Company or any Consolidated Subsidiary shall fail to
observe or perform any term, covenant or agreement contained in (i) any
instrument or agreement (other than this Agreement) by which it is
bound relating to Debt (other than Acquired Debt in an aggregate
outstanding principal amount not exceeding $75,000,000), (ii) the
364-Day Credit Agreement, (iii) the DM400,000,000 Term Loan Facility,
or (iv) the
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DM350,000,000 Multicurrency Revolving Credit Facility, or any other
event or condition referred to therein shall occur (including, without
limitation, any "Default" or "Termination Event" as defined therein),
and the effect of all such failures, events and conditions (each a
"default") is to cause the maturity of any Material Debt to be
accelerated or to permit (any applicable period of grace having expired
and any required notice having been given) the holder or holders of any
Material Debt (or any Person acting on their behalf) to accelerate the
maturity thereof;
(G) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property under any such law, or shall consent to any such relief or
to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it under any
such law, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due,
or a resolution shall be adopted by either the shareholders or the
board of directors of such corporation to authorize any of the
foregoing;
(H) an involuntary case or other proceeding shall be commenced
against the Company or any Significant Subsidiary in any United States
Federal court or other court of competent jurisdiction seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property under any such law, and in each case
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against the Company or any Significant Subsidiary as debtors
under the federal bankruptcy laws as now or hereafter in effect;
(I) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $1,000,000 which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Liabilities in excess of $50,000,000 (collectively,
a "Material Plan") shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $50,000,000
or; the institution by the PBGC or any similar foreign governmental
authority of proceedings to terminate a Foreign Pension Plan which
could reasonably be expected to subject the Company and its
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Subsidiaries, taken as a whole, to liability in excess of $50,000,000
(a "Material Foreign Pension Plan"); or a foreign governmental
authority shall appoint or institute proceedings to appoint a trustee
to administer any Material Foreign Pension Plan in place of the
existing administrator; provided that no Event of Default shall exist
under this clause (I) with respect to any Prior Plan unless it is
reasonably likely that one or more members of the ERISA Group is liable
with respect to the relevant Unfunded Liabilities or current payment
obligation, as the case may be;
(J) a judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Company or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of 45 days; or
(K) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 30% or more of the outstanding shares of common stock of the
Company; or Continuing Directors shall cease to constitute a majority
of the board of directors of the Company; or the Company shall cease to
be (directly or through its wholly-owned Subsidiaries) the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 promulgated by the
Securities and Exchange Commission under the Act) directly or
indirectly of at least 100% of the voting power of the outstanding
capital stock of Masco Europe ordinarily having the right to vote at an
election of directors;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrowers terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by Required Banks, by notice to the
Borrowers declare the Loans (together with accrued interest thereon) to be, and
the Loans shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; provided that in the case of any of the Events
of Default specified in clause (G) or (H) above with respect to the Company or
any Significant Subsidiary, without any notice to any Borrower or any other act
by the Agent or the Banks, the Commitments shall thereupon terminate and the
Loans (together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Company under Section 6.01(C) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII: THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
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SECTION 7.02. Agent and Affiliates. Bank One shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Agent, and Bank
One and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary or affiliate
of the Company as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable (i) to the Banks
for any action taken or not taken by such Person in connection herewith with the
consent or at the request of the Required Banks or all Banks, if applicable, or
(ii) to the Banks or any Borrower for any action taken or not taken by such
Person in the absence of such Person's own gross negligence or willful
misconduct. Neither the Agent, the Arranger nor any of their directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the
Borrowers; (iii) the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
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SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Borrowers. Upon any
such resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $250,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's and Arranger's Fee. The Company shall
pay to each of the Agent and the Arranger for their own account such fees as
agreed upon between the Company, the Agent and the Arranger and set forth in a
separate fee letter among the Agent, the Arranger and the Company.
SECTION 7.10. Agent, Arranger, Documentation Agents,
Syndication Agents. None of the Agent, the Arranger, any Documentation Agent or
any Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than 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 Bank. Each
Bank hereby makes the same acknowledgments with respect to such Banks as it
makes with respect to the Agent in Section 7.07.
ARTICLE VIII: CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Eurocurrency Borrowing or Swingline Loan, as applicable:
(A) the Agent or the Swingline Lender determines that deposits
in the applicable Syndicated Currency (in the applicable amounts) or
Agreed Currency, respectively, are not being offered in the relevant
market for such Interest Period, or
(B) Banks having more than 50% of the aggregate amount of the
Commitments advise the Agent that the Eurocurrency Reference Rate, as
determined by the Agent, will not adequately and fairly reflect the
cost to such Banks of funding their Eurocurrency Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, (x) the obligations of (i) the Banks to
make, continue or convert Eurocurrency Loans in such Syndicated Currency or (ii)
the Swingline Lender to make, continue or convert Swingline Loans in such Agreed
Currency, as applicable, shall be suspended, and (y) if the Syndicated Currency
or Agreed Currency is Dollars, each affected Loan shall be converted into a
Floating
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Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the relevant Borrower notifies the Agent at least two Domestic
Business Days before the date of any such Eurocurrency Borrowing for which a
Notice of Borrowing, or any such Swingline Loan for which a Notice of Swingline
Loan, has previously been given that it elects not to borrow on such date, such
Borrowing shall instead be made as a Floating Rate Borrowing.
SECTION 8.02. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Eurocurrency Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Eurocurrency
Lending Office) to honor its binding legal obligation hereunder to make,
maintain or fund its Eurocurrency Loans in any Syndicated Currency or any
Swingline Loan (other than a Swingline Loan in Dollars to the Company) to any
Borrower and such Bank shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Banks and the Borrowers, whereupon until such Bank
notifies the Borrowers and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make Eurocurrency
Loans or such Swingline Loans in such currency to such Borrower or to continue
outstanding Loans to such Borrower as Eurocurrency Loans or such Swingline
Loans, as applicable, in such currency shall be suspended. Before giving any
notice to 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 date of this Agreement, 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
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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 or its obligation to make Eurocurrency
Loans or such Swingline Loans, 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 or any other amounts due under
this Agreement in respect of its Eurocurrency Loans, such
Swingline Loans or its obligation to make Eurocurrency Loans
or such Swingline Loans (except for changes in the rate of tax
on the overall net income of such Bank or its Applicable
Lending Office or franchise or similar taxes imposed by the
United States of America or any State or political subdivision
thereof or imposed by the jurisdiction in which such Bank's
principal executive office or Applicable Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve
System, but excluding, with respect to any Eurocurrency Loan
or Swingline Loan (other than Swingline Loans bearing a
floating rate of interest made to the Company), 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 or its obligation to make
Eurocurrency Loans or such Swingline Loans;
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 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, by
an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the relevant
Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or reduction;
provided that, such Bank shall not be entitled to such compensation for
increased costs or reductions incurred more than 90 days prior to the
date on which it actually demands (or notifies the relevant Borrower
that it will demand) such compensation, provided, further that if the
Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended
to include the period of retroactive effect. If any Bank demands
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compensation under this subsection (A), the relevant Borrower may at
any time, upon at least five Eurocurrency Business Days' prior notice
to such Bank through the Agent, prepay in full each then outstanding
affected Eurocurrency Loan or Swingline Loan, as applicable, of such
Bank, together with accrued interest thereon to the date of prepayment.
Concurrently with prepaying each such Eurocurrency Loan or Swingline
Loan, as applicable, of such Bank, such Borrower shall borrow a
Floating Rate Loan (or, if such Borrower shall so elect in its notice
of prepayment, a Eurocurrency Loan or Swingline Loan of another type)
in an equal principal amount from such Bank for an Interest Period
coinciding with the remaining term of the Interest Period applicable to
such Eurocurrency Loan or Swingline Loan, and such Bank shall make such
a Loan notwithstanding any provision herein to the contrary.
(B) If any Bank shall have determined that, after the date of
this Agreement, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations hereunder to a
level below that which such Bank (or its Parent) could have achieved
but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time,
within 15 days after demand by such Bank (with a copy to the Agent),
the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided
that such Bank shall not be entitled to such compensation for
reductions incurred more than 90 days prior to the date on which it
actually demands (or notifies the Company that it will demand) such
compensation, provided, further that if the Change in Law giving rise
to such reductions in retroactive, then the 90-day period referred to
above shall be extended to include the period of retroactive effect
thereof.
(C) Each Bank will promptly notify the Borrowers and the Agent
of any event of which it has knowledge, occurring after the date of
this Agreement, which will entitle such Bank to compensation pursuant
to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error, provided that the
determination of such amount or amounts is made on a reasonable basis.
In determining such amount, such Bank may use any reasonable averaging
and attribution methods.
SECTION 8.04. Market Disruption. Notwithstanding the
satisfaction of all conditions referred to in Article II and Article III with
respect to any Borrowing in any Agreed Currency or Syndicated Currency other
than Dollars, if there shall occur on or prior to the date of
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such Borrowing any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the reasonable opinion of the Swingline Lender, the Agent or the Required
Banks, as applicable, make it impracticable for the Loans comprising such
Borrowing to be denominated in the applicable Agreed Currency or Syndicated
Currency, specified by the relevant Borrower, then the Swingline Lender or the
Agent as applicable, shall forthwith give notice thereof to such Borrower and
the Banks, and such Loans shall not be denominated in such Agreed Currency or
Syndicated Currency, but shall be made on such Borrowing Date in Dollars, in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing or Conversion/Continuation
Notice, as the case may be, as Floating Rate Loans, unless such Borrower
notifies the Swingline Lender or the Agent, as applicable, at least four
Eurocurrency Business Days or such shorter period of time agreed to by the
Swingline Lender or the Agent, as applicable, before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date in a
different Agreed Currency or Syndicated Currency, as the case may be, in which
the denomination of such Loans would in the opinion of the Swingline Lender or
the Agent and the Required Banks, as applicable, be practicable and in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing or Conversion/Continuation
Notice, as the case may be.
SECTION 8.05. Substitute Loans. If (i) the obligation of any
Bank to make Eurocurrency Loans or Swingline Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03
and the Company shall, by at least five Eurocurrency Business Days' prior notice
to such Bank through the Agent, have elected that the provisions of this Section
8.05 shall apply to such Bank, then, unless and until such Bank notifies the
Company and the Agent that the circumstances giving rise to such suspension or
demand for compensation no longer apply, all Loans which would otherwise be made
by such Bank as (or continued as or converted to) Eurocurrency Loans or
Swingline Loans shall be made instead as Floating Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Eurocurrency
Loans of the other Banks, as applicable). If such Bank notifies the Company that
the circumstances giving rise to such suspension or demand for compensation no
longer exist, the principal amount of each such Floating Rate Loan made in
substitution of a Eurocurrency Loan shall be converted into a Eurocurrency Loan
on the first day of the next succeeding Interest Period applicable to the
related Eurocurrency Loans of the other Banks, and each such Floating Rate Loan
made in substitution of a Swingline Loan shall be converted into a Swingline
Loan on a date mutually agreeable to the Swingline Lender and the applicable
Borrower.
SECTION 8.06. Substitution of Bank. If (i) any Bank shall have
failed to fund its pro rata share of any Loan requested by any Borrower
hereunder which such Bank is obligated to fund under the terms of this Agreement
and which failure has not been cured, (ii) the obligation of any Bank to make
Eurocurrency Loans has been suspended pursuant to Section 8.02 or (iii) any Bank
has demanded compensation under Section 2.11(D) or Section 8.03 (any such Bank
affected by clauses (i), (ii) or (iii), herein an "AFFECTED BANK"), the Company
shall have the right, with the assistance of the Agent, to seek a mutually
satisfactory substitute financial institution or institutions (which may be one
or more of the Banks) to purchase the Loans and Notes 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
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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) Business Days after the date of
such demand, to one or more financial institutions which the Company or the
Agent, as the case may be, shall have engaged for such purpose ("REPLACEMENT
BANK"), all of such Affected Bank's rights and obligations under this Agreement
and the other Loan Documents (including, without limitation, its Commitment, all
Loans owing to it, all of its participation interests in existing Swingline
Loans and its obligation to participate in additional Swingline Loans 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 other Loan Document, including, without limitation, the
aggregate outstanding principal amount of the Loans owed to such Bank, 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. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile or similar writing) and shall be given to such party: (x) in
the case of any Borrower or the Agent, at its address or its facsimile or telex
number set forth on the signature pages hereof, (y) in the case of any Bank, at
its address or its facsimile or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
or telex number as such party may hereafter specify for the purpose by notice to
the Agent and the Borrowers. Each such notice, request or other communication
shall be effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section 9.01 and the appropriate answerback is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section 9.01; provided that notices to the Agent under Article II or Article
VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(A) The Company shall pay (i) all reasonable out-of-pocket
expenses of the Agent and the Arranger, including reasonable fees and
disbursements of counsel for the Agent and the Arranger, in connection
with the preparation of this Agreement, any waiver or consent hereunder
or any amendment hereof or any Default hereunder and (ii) if an Event
of Default occurs, all reasonable out-of-pocket expenses incurred by
the Agent, the Arranger and each Bank, including reasonable fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency
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and other enforcement proceedings resulting therefrom. The Company
shall indemnify each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any governmental authority by
reason of the execution and delivery of this Agreement or the Notes.
(B) The Company agrees to indemnify and defend the Agent, the
Arranger and each Bank and their respective directors, officers,
agents, employees and affiliates from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses
substantially relating to or arising out of this Agreement or any
Borrower's actual or proposed use of proceeds of Loans hereunder,
including but not limited to reasonable attorney's fees and settlement
costs; provided that (x) the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages or expenses that (i) do not relate
to or arise out of this Agreement or (ii) relate to the activities of
the parties hereto (other than the Company and its Affiliates) in
connection herewith and (y) neither the Agent, the Arranger nor any
Bank shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
(C) In the event that any action taken by any Bank or Agent
under this Agreement or any Note results in any tax or other monetary
liability to such party pursuant to the laws of Luxembourg or political
subdivision or taxing authority thereof (other than taxes on the
overall net income of such Bank or its Applicable Lending Office or
franchise or similar taxes imposed by Luxembourg to the extent such
Bank or its Applicable Lending Office shall be situated in Luxembourg),
Masco Europe hereby agrees to indemnify such Bank or the Agent, as the
case may be, against (x) any such tax or other monetary liability and
(y) any increase in any tax or other monetary liability which results
from such action by such Bank or the Agent and, to the extent Masco
Europe makes such indemnification, the incurrence of such liability by
the Agent or any Bank will not constitute a Default.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Loan held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of any
Borrower other than its indebtedness under the Loans. Each Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Loan, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
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SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrowers and the Required Banks
(and, if the rights or duties of the Agent or the Swingline Lender are affected
thereby, by the Agent or the Swingline Lender, as the case may be, and no
amendment of any provision of this Agreement which subjects any Designated
Lender to any additional obligation hereunder shall be effective with respect to
such Designated Lender without the written consent of such Designated Lender or
its Designating Lender), provided that that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all the Banks) or
subject any Bank to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder or for the termination of the Commitments, (iv) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Loans, or
the number of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement, (v)
amend the definition of Syndicated Currency, (vi) amend Article X, or (vii)
amend this Section 9.05.
SECTION 9.06. Successors and Assigns.
(A) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no Borrower may assign or
otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks, except as provided in Section 5.05.
(B) Any Bank may at any time grant to one or more banks or
other institutions, including a Designated Lender, (each a
"Participant") participating interests in its Commitment or any or all
of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to
the Borrowers and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrowers and the
Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the
sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve
any amendment modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of
this Agreement described in clause (i), (ii) or (iii) of Section 9.05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article VIII with respect to
its participating interest. An assignment or other transfer which is
not permitted by subsection (C) or (D) below shall be given effect for
purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (B).
(C) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part of
all, but not less than the
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lesser of (i) $10,000,000 and in multiples of $1,000,000 (or such
lesser amounts as shall be consented to by the Agent and the Company,
which consent will not unreasonably be withheld) or (ii) the remaining
amount of the assigning Bank's commitment (calculated as at the date of
such assignment) of its rights and obligations under this Agreement and
the Notes, and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement in substantially the
form of Exhibit D hereto executed by such Assignee and such transferor
Bank, with (and subject to) the subscribed consent of the Company and
the Agent (which consent will not unreasonably be withheld); provided
that if an Assignee is a Bank, or an affiliate of such transferor Bank
that is a financial institution, or if an Event of Default has occurred
and is continuing, no such consent of the Company shall be required.
Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released
from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (C), the
transferor Bank, the Agent and the Company shall make appropriate
arrangements so that, if required, a new Note is issued to the
Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such
assignment in the amount of $4,000. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof, it
shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Company and the Agent
certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 2.14.
(D) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Loans and Notes, if any, to a
Federal Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.
(E) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section
8.03 than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Company's
prior written consent or by reason of the provisions of Section 8.02 or
8.03 requiring such Bank to designate a different Applicable Lending
Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(F) Designated Lender.
(i) Subject to the terms and conditions set forth in
this Section 9.06, any Bank may from time to time elect to
designate an Eligible Designee to provide all or any part of
the Loans to be made by such Bank pursuant to this Agreement;
provided the designation of an Eligible Designee by any Bank
for purposes of this Section 9.06 shall be subject to the
approval of the Borrowers and the Agent (which consent shall
not be unreasonably withheld or delayed). Upon
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the execution by the parties to each such designation of an
agreement in the form of Exhibit F hereto (a "DESIGNATION
AGREEMENT") and the acceptance thereof by the Borrowers and
the Agent, the Eligible Designee shall become a Designated
Lender for purposes of this Agreement. The Designating Lender
shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Loans to be made by
the Designating Lender pursuant to the terms of this Agreement
and the making of such Loans or portion thereof shall satisfy
the obligation of the Designating Lender to the same extent,
and as if, such Loan was made by the Designating Lender. As to
any Loan made by it, each Designated Lender shall have all the
rights a Bank making such Loan would have under this Agreement
and otherwise; provided, (x) that all voting rights under this
Agreement shall be exercised solely by the Designating Lender
and (y) each Designating Lender shall remain solely
responsible to the other parties hereto for its obligations
under this Agreement, including the obligations of a Bank in
respect of Loans made by its Designated Lender. No additional
Notes shall be required with respect to Loans provided by a
Designated Lender; provided, however, to the extent any
Designated Lender shall advance funds, the Designating Lender
shall be deemed to hold the Notes in its possession as an
agent for such Designated Lender to the extent of the Loan
funded by such Designated Lender; provided, further, that any
Designated Lender may request a Note in accordance with
Section 2.05(D). Such Designating Lender shall act as
administrative agent for its Designated Lender and give and
receive notices and communications hereunder. Any payments for
the account of any Designated Lender shall be paid to its
Designating Lender as administrative agent for such Designated
Lender and neither the Borrowers nor the Agent shall be
responsible for any Designating Lender's application of any
such payments. In addition, any Designated Lender may (i) with
notice to, but without the consent of the Borrowers and the
Agent, assign all or portions of its interests in any Loans to
its Designating Lender or to any financial institution
consented to by the Borrowers and the Agent providing
liquidity and/or credit facilities to or for the account of
such Designated Lender and (ii) subject to advising any such
Person that such information is to be treated as confidential
in accordance with such Person's customary practices for
dealing with confidential, non-public information, disclose on
a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity
enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that
it shall not institute against, or join any other person in
instituting against any Designated Lender any bankruptcy,
reorganization, arrangements, insolvency or liquidation
proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after the
payment in full of all outstanding senior indebtedness of any
Designated Lender; provided that the Designating Lender for
each Designated Lender hereby agrees to indemnify, save and
hold harmless each other party hereto for any loss, cost,
damage and expense arising out of their inability to institute
any such proceeding against such Designated Lender. This
Section 9.06(F) shall survive the termination of this
Agreement.
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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, whether under the terms of this Agreement or any other loan agreement,
shall (except to the extent required by legal or governmental process or
otherwise by law, or if such documentation and other information is publicly
available or hereafter becomes publicly available other than by action of any
Bank, or was theretofore known to such Bank independent of any disclosure
thereto by the Borrowers) be held in the strictest confidence by such Bank and
used solely in connection with administration of loans from time to time
outstanding from such Bank to the Borrowers; provided that (i) such Bank may
disclose such documentation and other information to its affiliates or any other
bank or other institution to which such Bank sells or proposes to sell a
participation in its Loans hereunder, if such affiliate or other bank or
institution, prior to such disclosure, agrees for the benefit of the Borrowers
to comply with the provisions of this Section, (ii) such Bank may disclose the
provisions of this Agreement and the Notes and the amounts, maturities and
interest rates of its Loans to any purchaser or potential purchaser of such
Bank's interest in any Loan and (iii) such Bank may disclose such documentation
and other information to the extent required, in such Bank's good faith
judgment, to enforce its rights under this Agreement and the Notes.
SECTION 9.09. Severalty of Obligations. The obligations of the
Banks hereunder are several. No failure by any Bank to perform its obligations
hereunder shall relieve any other Bank of its obligations hereunder, and no Bank
shall be responsible for the performance of any other Bank's obligations
hereunder or for any action taken or omitted by any other Bank hereunder.
SECTION 9.10. Illinois Law; Submission to Jurisdiction. This
Agreement and each Note shall be construed in accordance with and governed by
the laws of the State of Illinois. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois State court sitting in Chicago for
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each Borrower irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 9.11. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
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56
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.
(B) EACH BORROWER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.01, AND MASCO EUROPE
HEREBY IRREVOCABLY APPOINTS THE COMPANY AT THE ADDRESS SET FORTH ON THE
SIGNATURE PAGES HEREOF AS ITS AGENT FOR SERVICE OF PROCESS OUT OF ANY
OF THE COURTS REFERRED TO IN SECTION 9.10. NOTHING IN THIS AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
ARTICLE X: GUARANTY
As an inducement to the Banks and the Agent to enter into the
transactions contemplated by this Agreement, the Company agrees with the Banks
and the Agent as follows:
SECTION 10.01. Guarantee of Obligations.
(A) The Company hereby (i) guarantees, as principal obligor
and not as surety only, to the Banks the prompt payment of the
principal of and any and all accrued and unpaid interest (including
interest which otherwise may cease to accrue by operation of any
insolvency law, rule, regulation or interpretation thereof) on the
Loans and all other obligations of Masco Europe to the Banks and the
Agent under this Agreement when due, whether by scheduled maturity,
acceleration or otherwise, all in accordance with the terms of this
Agreement and the Notes, including, without limitation, fees,
reimbursement obligations, default interest, indemnification payments
and all reasonable costs and expenses incurred by the Banks and the
Agent in connection with enforcing any obligations of Masco Europe
hereunder, including without limitation the reasonable fees and
disbursements of counsel, (ii) guarantees the prompt and punctual
performance and observance of each and every term, covenant or
agreement contained in this Agreement and the Notes to be performed or
observed on the part of Masco Europe and (iii) agrees to make prompt
payment, on demand, of any and all reasonable costs and expenses
incurred by the Banks or the Agent in connection with enforcing the
obligations of the Company hereunder, including, without limitation,
the reasonable fees and disbursements of counsel (all of the foregoing
being collectively referred to as the "Guaranteed Obligations").
(B) If for any reason any duty, agreement or obligation of
Masco Europe contained in this Agreement shall not be performed or
observed by Masco Europe as provided therein, or if any amount payable
under or in connection with this Agreement shall not be paid in full
when the same becomes due and payable, the Company undertakes to
perform or cause to be performed promptly each of such duties,
agreements
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57
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.
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
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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 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, ▇▇▇ 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 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
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59
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 extent the Company is an "insider" as defined
in Section 101(2) of the United States Bankruptcy Code, such waiver shall be
permanent and shall not be revoked or terminated in any event, including payment
in full of the principal and interest of the Guaranteed Obligations. If at any
time any payment of any Guaranteed Obligations by Masco Europe is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of Masco Europe or otherwise, each of the Company's obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duty executed by their respective authorized officers as of the day and year
first above written.
MASCO CORPORATION
By: _________________________
Title: Vice President - Controller
and Treasurer
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President and Senior Vice President
General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
MASCO EUROPE S.A.R.L.
By: _________________________
Title:
c/o Masco Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President and Senior Vice President
General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
61
BANK ONE, NA, (Main office Chicago), as Agent
and as a Bank
By: _________________________
Title: Senior Managing Director
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
62
COMMITMENT SCHEDULE
Name of Bank Commitment
Bank One, NA (Main Office Chicago) $250,000,000
Commerzbank AG, New York and Grand Cayman Branches $137,500,000
Citibank, N.A. $125,000,000
BNP Paribas $100,000,000
Comerica Bank, N.A. $87,500,000
Royal Bank of Canada $87,500,000
Barclays Bank PLC $62,500,000
KeyBank National Association $62,500,000
Wachovia Bank, N.A. $62,500,000
The Bank of Tokyo--Mitsubishi, Ltd. Chicago Branch $37,500,000
Credit Lyonnais Chicago Branch $37,500,000
Dresdner Bank AG New York and Grand Cayman Branches $37,500,000
The Dai-Ichi Kangyo Bank, Ltd. $25,000,000
The Northern Trust Company $25,000,000
Banca Di Roma Chicago Branch $15,000,000
The Bank of New York $15,000,000
Banque Internationale a Luxembourg S.A. $15,000,000
The Industrial Bank of Japan, Ltd. $15,000,000
▇▇▇▇▇▇ Bank PLC $15,000,000
The Sanwa Bank, Ltd. $15,000,000
PNC Bank, National Association $15,000,000
UniCredito Italiano $7,500,000
Total Commitments: $1,250,000,000
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PRICING SCHEDULE
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below (expressed as
basis points):
Level I Level II Level III Level IV Level V Status
Status Status Status Status
Facility Fee 8.5 10.0 12.5 15.0 17.5
Eurocurrency Margin 29.0 37.5 47.5 60.0 77.5
Utilization fee > 33% 12.5 15.0 15.0 15.0 20.0
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's ▇▇▇▇▇'▇
Rating is A2 or better and the Company's S&P Rating is A or better.
"Level II Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status and (ii) the Company's ▇▇▇▇▇'▇ Rating is A3 or
better and the Company's S&P Rating is A- or better.
"Level III Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status or Level II Status and (ii) the Company's ▇▇▇▇▇'▇
Rating is Baa1 or better and the Company's S&P Rating is BBB+ or better.
"Level IV Status" exists at any date if, on such date, (i) the Company has not
qualified for Level I Status, Level II Status or Level III Status and (ii) the
Company's ▇▇▇▇▇'▇ Rating is Baa2 or better and the Company's S&P rating is BBB
or better.
"Level V Status" exists at any date if, on such date, the Company has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating issued by ▇▇▇▇▇'▇ 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.
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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 ▇▇▇▇▇'▇ Rating and no S&P Rating,
Level V Status shall exist. Notwithstanding the foregoing, if at any time there
exists a difference between the ▇▇▇▇▇'▇ Rating and the S&P Rating, the rating
corresponding to the lower of the two ratings shall apply; provided, however,
that if the difference is greater than one level, the Status shall be determined
based upon the rating one level above the lower of the two ratings.
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SCHEDULE 1
EUROCURRENCY PAYMENT OFFICES
Currency Eurocurrency Payment Office
-------- ---------------------------
Dollars Bank One, NA
Chicago, Illinois
EURO Bank One, NA
London Branch
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EXHIBIT A
NOTE
--------,
---- -------------
For value received, [MASCO CORPORATION, a Delaware
corporation] [MASCO EUROPE S.A.R.L., a corporation organized under the laws of
Luxembourg] (the "Borrower"), promises to pay to the order of (the
"Bank"), for the account of its Applicable Lending Office, the unpaid principal
amount of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the last day of the Interest Period relating to
such Loan. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
the relevant Syndicated Currency at the relevant office of the Agent and as
required under the Credit Agreement referenced below.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding shall
be endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof, provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 5-Year
Revolving Credit Agreement dated as of November 6, 2000 among the Borrower, the
banks party thereto and Bank One, NA, as Agent (as the same may be amended,
modified, supplemented or restated from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
This note shall be construed in accordance with and governed by the laws of the
State of Illinois. Reference is made to the Credit Agreement for provisions for
the prepayment hereof and the acceleration of the maturity hereof
[MASCO CORPORATION][MASCO EUROPE
S.A.R.L.]
By
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Title
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67
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Type of Loan Principal Maturity Notation
Loan Repaid Date Made By
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EXHIBIT B
SWINGLINE NOTE
--------,
---- -------------
For value received, [MASCO CORPORATION, a Delaware
corporation] [MASCO EUROPE S.A.R.L., a corporation organized under the laws of
Luxembourg] (the "Borrower"), promises to pay to the order of Bank One, NA (the
"Swingline Lender"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Swingline Loan made by the Swingline Lender to
the Borrower pursuant to the Credit Agreement referred to below on the day
required under the Credit Agreement referred to below. The Borrower promises to
pay interest on the unpaid principal amount of each such Swingline Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in the relevant Agreed Currency
at the relevant office of the Agent and as required under the Credit Agreement
referenced below.
All Swingline Loans made by the Swingline Lender, the
respective types and maturities thereof and all repayments of the principal
thereof may be recorded by the Swingline Lender and, prior to any transfer
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding shall be endorsed by the Swingline Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof, provided that the failure of the Swingline Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is the Swingline Note referred to in the 5-Year
Revolving Credit Agreement dated as of November 6, 2000 among the Borrower, the
banks party thereto and Bank One, NA, as Agent (as the same may be amended,
modified, supplemented or restated from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
This note shall be construed in accordance with and governed by the laws of the
State of Illinois. Reference is made to the Credit Agreement for provisions for
the prepayment hereof and the acceleration of the maturity hereof.
MASCO CORPORATION
By
----------------------------------
Title
--------------------------
1
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Swingline Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------------------------------------------------------
Amount of
Date Amount of Type of Loan Principal Maturity Notation
Loan Repaid Date Made By
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EXHIBIT C-1
OPINION OF
COUNSEL FOR THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Bank One, NA, as Agent
Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
I am Senior Vice President-General Counsel of Masco
Corporation (the "Company") and in that capacity have responsibility for the
general legal affairs of the Company, Masco Europe S.a.r.l., a Wholly-Owned
Subsidiary of the Company organized under the laws of Luxembourg ("Masco
Europe") and the other Subsidiaries of the Company. I am familiar with the
5-Year Revolving Credit Agreement dated as of November 6, 2000 (the "Credit
Agreement") among the Company, Masco Europe, the Banks party thereto as lenders,
Commerzbank AG, New York and Grand Cayman Branches and Citibank, N.A., as
Syndication Agents, BNP Paribas, as Documentation Agent, and Bank One, NA, 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
3.01(B) of the Credit Agreement.
I, or members of the Company's legal staff, have examined
originals or copies, certified or otherwise, identified to my or their
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its businesses substantially as now conducted.
2. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes are within the Company's corporate powers,
have been duly authorized by all necessary corporate action of the Company,
require no action in respect of the Company by, or filing in respect of the
Company with, any governmental body, agency or official (except filings under
the Securities Exchange Act of 1934) and do not contravene, or constitute a
default under any provision of applicable law or regulation or of the
certificate or by-laws of the Company or of any agreement, judgment, injunction,
order, decree or other instrument known to 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.
1
71
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, is likely 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 the Credit Agreement or the Notes.
My opinion in paragraph 3 as it relates to Masco Europe is
based solely on the opinion of ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Lagae & ▇▇▇▇▇▇ and is
limited, qualified and conditioned as provided therein.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-
General Counsel
2
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EXHIBIT C-2
OPINION OF
COUNSEL FOR MASCO EUROPE
Attached
1
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EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______ ___, ____, among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), MASCO CORPORATION (the "Company") and
Bank One, NA, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the 5-Year Revolving Credit Agreement dated as of
November 6, 2000 among the Company, Masco Europe S.a.r.l., a wholly-owned
subsidiary of the Company organized under the laws of Luxembourg, the Banks
party thereto as lenders, Commerzbank AG, New York and Grand Cayman Branches and
Citibank, N.A., as Syndication Agents, BNP Paribas, as Documentation Agent, and
Bank One, NA, as Administrative Agent (the "Credit Agreement"),
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans to the Borrowers in an aggregate principal amount
at any time outstanding not to exceed $________________;
WHEREAS, Loans made to the Borrowers by the Assignor under the
Credit Agreement in the aggregate principal amount of $________________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $________________ (the
"Assigned Amount"), together with a corresponding portion of its outstanding
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amount specified in Section 3 required to be paid
on the date hereof (1) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such
1
74
obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds an amount equal to $_____________(1). It is
understood that facility fees accrued to the date hereof are for the account of
the Assignor and such fees accruing from and including the date hereof [in
respect of the Assigned Amount] are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. [Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the Company and the Agent pursuant
to Section 9.06(C) of the Credit Agreement, The execution of this Agreement by
the Company and the Agent is evidence of this consent. Pursuant to Section
9.06(C) the Company agrees to execute and deliver or cause to be executed and
delivered a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Company, or the validity and enforceability of the obligations of the Company in
respect of the Credit Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
-----------------------
(1)Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula
rather than as a fixed sum.
2
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authored officers as of the date first
above written.
[ASSIGNOR]
By
-------------------------------------------
Title:
------------------------------
[ASSIGNEE]
By
-------------------------------------------
Title:
------------------------------
[MASCO CORPORATION]
By
-------------------------------------------
Title:
------------------------------
BANK ONE, NA, as Agent
By
-------------------------------------------
Title:
------------------------------
3
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EXHIBIT E
NOTICE OF BORROWING
[Date]
To each Bank party to the referenced
Credit Agreement
c/o Bank One, NA, as Administrative Agent for the Banks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 6, 2000, as amended, supplemented or otherwise modified
from time to time (the "Credit Agreement"), by and among Masco Corporation, a
Delaware corporation, Masco Europe S.a.r.l., a wholly-owned subsidiary of Masco
Corporation organized under the laws of Luxembourg, the Banks party thereto,
Commerzbank AG, New York and Grand Cayman Branches and Citibank, N.A., as
Syndication Agents, BNP Paribas, as Documentation Agent, and Bank One, NA, as
Administrative Agent (the "Agent"). Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement. Such Borrowing shall be evidenced by the Borrower's Note, as
applicable.
(i) Borrower's Name:
------------------------------------------------
(ii) [The Borrowing is in Dollars in the amount of: ]
-------------------
[The Borrowing is in EURO in the amount of: ]
---------------------
Existing Loan amount:
-------------------------------------------
Repayment:
------------------------------------------------------
Continuation of Eurocurrency Loan (Interest Period ending: )
------
Increased amount:
------------------------------------------------
Total Loan amount:
----------------------------------------------
(iii) The Borrowing is to be funded on:
-------------------------------
(iv) The Loans comprising such Borrowing shall be made as
[Floating Rate] [Eurocurrency] Loans.
(v) In the case of a Eurocurrency Borrowing, the Interest Period
shall be
-------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
-------------------------------
as Borrower
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EXHIBIT E-1
NOTICE OF SWINGLINE LOAN
[Date]
Bank One, NA, as Swingline Lender
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: (for a Swingline Loan in Dollars)
--------------------------
(for a Swingline Loan in an Agreed
---------------------------
Currency other than Dollars)
The Borrower (as hereinafter named), hereby requests a
Swingline Loan pursuant to Section 2.01(B) of the 5-Year Revolving Credit
Agreement, dated as of November 6, 2000, as amended, supplemented or otherwise
modified from time to time (the "Credit Agreement"), by and among Masco
Corporation, a Delaware corporation, Masco Europe S.a.r.l., a wholly-owned
subsidiary of Masco Corporation organized under the laws of Luxembourg, the
Banks party thereto, Commerzbank AG, New York and Grand Cayman Branches and
Citibank, N.A., as Syndication Agents, BNP Paribas, as Documentation Agent, and
Bank One, NA, as Administrative Agent (the "Agent"). Capitalized terms used but
not defined herein shall have the respective meanings ascribed thereto in the
Credit Agreement. Such Borrowing shall be evidenced by the Borrower's Swingline
Note.
(i) Borrower's Name:
----------------------------------------------
(ii) [The Swingline Loan is in Dollars in the amount of: ]
-----------
[The Swingline Loan is in [insert desired Agreed Currency]
in the amount of: ].
---------------------------------------------
(iii) The Swingline Loan is to be funded on:
-------------------------
(iv) In the case of a Swingline Loan in an Agreed Currency other than
Dollars, the agreed Interest Period shall be
------------------
and the agreed upon interest rate shall be .
--------------------
-----------------------------------
as Borrower
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EXHIBIT F
FORM OF DESIGNATION AGREEMENT
Dated __________, 200__
Reference is made to the $1,250,000,000 5-Year Revolving
Credit Agreement dated as of November 6, 2000 (as amended, modified,
supplemented or restated from time to time, the "Credit Agreement") among Masco
Corporation, a Delaware corporation (the "Company"), Masco Europe S.a.r.l., a
wholly-owned subsidiary of the Company organized under the laws of Luxembourg
(together with the Company, the "Borrowers"), the Banks party thereto,
Commerzbank AG, New York and Grand Cayman Branches and Citibank, N.A., as
Syndication Agents, BNP Paribas, as Documentation Agent, and Bank One, NA, as
Administrative Agent. Terms defined in the Credit Agreement are used herein as
therein defined.
_________ (the "Designator"), ____________ (the "Designee"),
and the Borrowers, agree as follows:
1. The Designator hereby designates the Designee, and the
Designee hereby accepts such designation, as its Designated Lender under the
Credit Agreement.
2. The Designator makes no representations or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Article IV thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designator or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action it may be
permitted to take under the Credit Agreement; (iii) confirms that it is an
Eligible Designee; (iv) appoints and authorizes the Designator as its
administrative agent and attorney-in-fact and grants the Designator an
irrevocable power of attorney to receive payments made for the benefit of the
Designee under the Credit Agreement and to deliver and receive all
communications and notices under the Credit Agreement, if any, that Designee is
obligated to deliver or has the right to receive thereunder; (v) acknowledges
that it is subject to and bound by the confidentiality provisions of the Credit
Agreement (except as permitted under Section 9.08 thereof); and (vi)
acknowledges that the Designator retains the sole right and responsibility to
vote under the Credit Agreement, including, without limitation, the right to
approve any amendment, modification or waiver of any provision of the Credit
Agreement, and agrees that the Designee shall be bound by all such votes,
approvals, amendments, modifications and waivers and all other agreements of the
Designator pursuant to or in connection with the Credit Agreement, all subject
to Section 9.05 of the Credit Agreement.
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4. Following the execution of this Designation Agreement by
the Designator, the Designee and the Borrowers, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective Date of this
Designation Agreement shall be the date of acceptance thereof by the Agent,
unless otherwise specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date (a) the Designee shall have the right to make Loans as a Bank
pursuant to Section 2.01 of the Credit Agreement and the rights of a Bank
related thereto and (b) the making of any such Loans by the Designee shall
satisfy the obligations of the Designator under the Credit Agreement to the same
extent, and as if, such Loans were made by the Designator.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
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80
IN WITNESS WHEREOF, the parties have caused this Designation
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
Effective Date(2):
[NAME OF DESIGNATOR]
By: _____________________________
Name: __________________________
Title: _________________________
[NAME OF DESIGNEE]
By: _____________________________
Name: __________________________
Title: _________________________
MASCO CORPORATION
By: _____________________________
Name: __________________________
Title: _________________________
MASCO EUROPE S.A.R.L.
By: _____________________________
Name: __________________________
Title: _________________________
Accepted and Approved this
____ day of ________, ____
BANK ONE, NA, as Agent
By: ______________________________
Title: __________________________
_______________________
(2)This date should be no earlier than the date of acceptance by the
Administrative Agent.
3