<PAGE>
SECOND QUARTER 1995
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
for the Quarterly Period Ended June 30, 1995
-------------
Commission File Number 1-9608
NEWELL CO.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3514169
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Newell Center
29 East Stephenson Street
Freeport, Illinois 61032-0943
(Address of principal executive offices)
(Zip Code)
(815)235-4171
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months, and (2) has been
subject to such filing requirements for the past 90 days.
Yes ___X___ No ______
Number of shares of Common Stock outstanding
as of July 24, 1995: 158,199,352
<PAGE>
<PAGE> -2-
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
--------------------
<TABLE>
<CAPTION>
NEWELL CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- --------------------
1995 1994 1995 1994
--------- --------- ---------- --------
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $ 621,331 $ 493,505 $1,177,910 $ 936,991
Cost of products sold 431,881 333,589 821,645 642,275
-------- -------- --------- --------
GROSS INCOME 189,450 159,916 356,265 294,716
Selling, general and
administrative expenses 88,371 74,729 181,791 151,772
-------- -------- --------- --------
OPERATING INCOME 101,079 85,187 174,474 142,944
Nonoperating expenses (income):
Interest expense 12,387 6,325 24,225 11,786
Other (2,851) 2,222 (1,459) 2,012
-------- -------- --------- --------
Net nonoperating expenses (income) 9,536 8,547 22,766 13,798
-------- -------- --------- ------
INCOME BEFORE INCOME TAXES 91,543 76,640 151,708 129,146
Income taxes 36,617 32,657 60,683 53,659
-------- -------- --------- --------
NET INCOME $ 54,926 $ 43,983 $ 91,025 $ 75,487
======== ======== ========= ========
Earnings per share $ 0.35 $ 0.28 $ 0.58 $ 0.48
======== ======== ========= ========
Dividends per share $ 0.12 $ 0.10 $ 0.22 $ 0.19
======== ======== ========= ========
Weighted average shares 158,020 157,785 157,962 157,733
======== ======== ========= ========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
<PAGE> -3-
<TABLE>
<CAPTION>
NEWELL CO. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
June 30, December 31,
1995 1994
------------- ------------
Unaudited
(In thousands)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 12,982 $ 14,892
Accounts receivable, net 405,538 335,806
Inventories 491,426 420,654
Deferred income taxes 78,144 90,063
Prepaid expenses and other 45,110 56,256
--------- ---------
TOTAL CURRENT ASSETS 1,033,200 917,671
MARKETABLE EQUITY SECURITIES 46,692 64,740
OTHER LONG-TERM INVESTMENTS 186,849 183,372
OTHER ASSETS 152,127 182,906
PROPERTY, PLANT AND EQUIPMENT, NET 479,239 454,597
GOODWILL 682,308 684,990
--------- ---------
TOTAL ASSETS $2,580,415 $2,488,276
========= =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
<PAGE> -4-
<TABLE>
<CAPTION>
NEWELL CO. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONT.)
June 30, December 31,
1995 1994
------------- -------------
Unaudited
(In thousands)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable $ 102,797 $ 209,720
Accounts payable 107,024 112,269
Accrued compensation 39,993 48,461
Other accrued liabilities 270,269 305,878
Income taxes 40,554 8,271
Current portion of long-term debt 59,728 99,425
--------- ---------
TOTAL CURRENT LIABILITIES 620,365 784,024
LONG-TERM DEBT 604,489 408,986
OTHER NONCURRENT LIABILITIES 149,813 152,697
DEFERRED INCOME TAXES 18,198 17,243
STOCKHOLDERS' EQUITY
Par value of common stock issued: 158,199 157,844
1995 - 158,199,352 shares
1994 - 157,843,590 shares
Additional paid-in capital 181,582 175,352
Retained earnings 845,142 788,862
Net unrealized gain on securities
available for sale 11,942 9,868
Cumulative translation adjustment (9,143) (6,466)
Treasury stock (at cost): (172) (134)
1995 - 7,998 shares
1994 - 6,567 shares ========= =========
TOTAL STOCKHOLDERS' EQUITY 1,187,550 1,125,326
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $2,580,415 $2,488,276
========= =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
<PAGE> -5-
<TABLE>
<CAPTION>
NEWELL CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended
June 30,
--------------------------
1995 1994
---------- ---------
Unaudited
(In thousands)
<S> <C> <C>
OPERATING ACTIVITIES:
Net Income $ 91,025 $ 75,487
Adjustments to Reconcile Net Income to Net
Cash Provided by Operating Activities:
Depreciation and amortization 48,710 41,503
Deferred income taxes (14,991) (11,812)
Net gain on marketable equity securities (15,819) (373)
Write-off of investments 16,000 -
Other (3,567) (1,365)
Changes in current accounts, excluding the effects
of acquisitions:
Accounts receivable (65,698) (33,656)
Inventories (49,958) (23,520)
Other current assets, accounts payable
accrued liabilities and other 18,749 (19,607)
-------- --------
Net Cash Provided by Operating Activities 24,451 26,657
-------- ---------
INVESTING ACTIVITIES:
Acquisitions (41,742) -
Expenditures for property, plant and equipment (41,309) (26,489)
Sale of marketable equity securities 37,324 1,053
Disposal of noncurrent assets and other 3,380 3,627
-------- --------
Net Cash Used in Investing Activities (42,347) (21,809)
-------- --------
FINANCING ACTIVITIES:
Proceeds from issuance of debt 62,580 139,600
Proceeds from exercised stock options and other 3,429 2,166
Payments on notes payable and long-term debt (15,278) (118,267)
Cash dividends (34,745) (29,968)
-------- --------
Net Cash Provided by (Used in) Financing Activities 15,986 (6,469)
-------- --------
Decrease in Cash and Cash Equivalents (1,910) (1,621)
Cash and cash equivalents at beginning of year 14,892 2,866
-------- --------
Cash and Cash Equivalents at End of Period $ 12,982 $ 1,245
======== ========
</TABLE>
See notes to consolidated financial statements. <PAGE>
<PAGE> -6-
NEWELL CO. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 - The condensed financial statements included herein have been
prepared by the Company, without audit, pursuant to the
rules and regulations of the Securities and Exchange
Commission, and reflect all adjustments necessary to present
a fair statement of the results for the periods reported,
subject to normal recurring year-end audit adjustments, none
of which is material. Certain information and footnote
disclosures normally included in financial statements
prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such
rules and regulations, although the Company believes that
the disclosures are adequate to make the information
presented not misleading. It is suggested that these
condensed financial statements be read in conjunction with
the financial statements and the notes thereto included in
the Company's latest Annual Report on Form 10-K.
Note 2 - On August 29, 1994, the Company acquired Home Fashions, Inc.
("HFI"), a manufacturer and marketer of decorative window
coverings, including vertical blinds and pleated shades.
The purchase price was $130.4 million in a cash. HFI was
combined with Levolor and together they are operated as a
single entity called Levolor Home Fashions. On October 18,
1994, the Company acquired Faber-Castell Corporation, which
is a leading maker and marketer of markers and writing
instruments, including wood-cased pencils and rolling ball
pens, whose products are marketed under the Eberhard Faber
brand name ("Eberhard Faber"). The purchase price was
$137.3 million in cash. Eberhard Faber was combined with
Sanford and together they are operated as a single entity
called Sanford. On November 30, 1994, the Company acquired
the European consumer products business of Corning
Incorporated ("Newell Europe"). This acquisition included
Corning s consumer products manufacturing facilities in
England, France and Germany, the European trademark rights
and product lines for Pyrex, Pyroflam and Visions brands in
Europe, the Middle East and Africa, and Corning s consumer
distribution network throughout these areas (Pyrex and
Visions are registered trademarks of Corning Incorporated).
Additionally, the Company became the distributor in Europe,
the Middle East and Africa for Corning s U.S.-manufactured
cookware and dinnerware brands. The purchase price was
$87.7 million in cash. These transactions were accounted
for as purchases; therefore, the results of operations for
HFI, Eberhard Faber and Newell Europe are included in the
accompanying consolidated financial statements since their
respective dates of acquisition. The cost of the 1994
acquisitions was allocated on a preliminary basis to the
fair market value of assets acquired and liabilities assumed
and resulted in goodwill of approximately $159.2 million.
<PAGE>
<PAGE> -7-
The unaudited consolidated results of operations for the six
months ended June 30, 1995 and 1994 on a pro forma basis, as
though HFI, Eberhard Faber and Newell Europe each had been
acquired on January 1, 1994 are as follows:
1995 1994
-------- --------
(In millions, except per share data)
Net sales $1,211.3 $1,203.3
Net income 89.4 73.0
Earnings per share 0.57 0.46
Note 3 - Cash paid during the first six months for income taxes and
interest was as follows:
Six Months Ended
June 30,
--------------------------
1995 1994
-------- --------
(In millions)
Income taxes $ 37.0 $ 53.4
Interest 25.5 13.9
Note 4- The components of inventories at the end of each period, net
of the LIFO reserve, were as follows:
June 30, December 31,
1995 1994
------------ -----------
(In millions)
Materials and supplies $118.4 $ 81.7
Work in process 77.2 98.9
Finished products 295.8 240.1
----- -----
$491.4 $420.7
===== =====
Note 5 - Long-term marketable equity securities at the end of each
period are summarized as follows:
June 30, December 31,
1995 1994
------------ -----------
(In millions)
Aggregate market value $ 46.7 $ 64.7
Aggregate cost 26.8 48.3
----- -----
Unrealized gain, net $ 19.9 $ 16.4
===== =====
During the six months ended June 30, 1995, the Company
obtained proceeds of $37.3 million from the sale of long-
<PAGE>
<PAGE> -8-
term marketable equity securities and recorded a gain of
$15.8 million on the sale.
Note 6 - Property, plant and equipment at the end of each period
consisted of the following:
June 30, December 31,
1995 1994
----------- ------------
(In millions)
Land $ 12.4 $ 9.6
Buildings and improvements 168.6 164.8
Machinery and equipment 541.5 515.8
------ ------
722.5 690.2
Allowance for depreciation (243.3) (235.6)
------ ------
$ 479.2 $ 454.6
====== ======
Note 7 - Notes Payable at the end of each period consisted of the
following:
June 30, December 31,
1995 1994
----------- ------------
(In millions)
Commercial paper(short-term) $ - $ 117.1
Other notes payable 102.8 92.6
$ 102.8 $ 209.7
====== ======
Note 8 - Long-term debt at the end of each period consisted of the
following:
June 30, December 31,
1995 1994
----------- ------------
(In millions)
Medium-term notes $ 198.0 $ 186.0
Commercial paper 445.0 300.0
Other long-term debt 21.2 22.4
664.2 508.4
Current portion (59.7) (99.4)
$ 604.5 $ 409.0
====== ======
Commercial paper is classified as long-term since it is
supported by the revolving credit agreement discussed in
the liquidity and capital resources section on page 14.
<PAGE>
<PAGE> -9-
PART I. Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Results of Operations
The following table sets forth for the periods indicated the items
from the Consolidated Statements of Income as a percentage of net
sales.
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- --------------------
1995 1994 1995 1994
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of products sold 69.5 67.6 69.8 68.5
----- ----- ----- -----
GROSS INCOME 30.5 32.4 30.2 31.5
Selling, general and
administrative expenses 14.2 15.1 15.4 16.2
----- ----- ----- -----
OPERATING INCOME 16.3 17.3 14.8 15.3
Nonoperating expenses (income):
Interest expense 2.0 1.3 2.0 1.3
Other (0.4 0.5 (0.1) 0.2
----- ----- ----- -----
Net nonoperating expenses (income) 1.6 1.8 1.9 1.5
----- ----- ----- -----
INCOME BEFORE INCOME TAXES 14.7 15.5 12.9 13.8
Income taxes 5.9 6.6 5.2 5.7
----- ----- ----- -----
NET INCOME 8.8% 8.9% 7.7% 8.1%
===== ===== ===== =====
</TABLE>
<PAGE>
<PAGE> -10-
Three Months Ended June 30, 1995 vs. Three Months Ended June 30, 1994
---------------------------------------------------------------------
Net sales for the second quarter of 1995 were $621.3 million,
representing an increase of $127.8 million or 25.9% from $493.5
million in the comparable quarter of 1994. Net sales for each of the
Company's product groups were as follows, in millions:
<TABLE>
<CAPTION>
1995 1994 $ Change % Change
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Housewares $192.3 $156.0 $ 36.3 23.3%
Home Furnishings 168.9 142.1 26.8 18.9%
Office Products 165.7 98.9 66.8 67.5%
Hardware 94.4 96.5 (2.1) (2.2)%
----- ----- -----
$621.3 $493.5 $127.8 25.9%
===== ===== =====
</TABLE>
The overall increase in net sales was primarily attributable to sales
growth of 2% from businesses owned more than two years, including
immaterial acquisitions in 1995 of related businesses (core
businesses), and the 1994 acquisitions of HFI, Eberhard Faber and
Newell Europe. The increase in Housewares sales was due primarily to
the Newell Europe acquisition; the increase in Home Furnishings was
due primarily to the HFI acquisition; the increase in Office Products
was due to the Eberhard Faber acquisition and 10% sales growth from
core businesses; and the decrease in Hardware was due to sluggish
retail sales in the home center channel of trade. The 2% overall
sales growth from core businesses was lower than expected due to a
sluggish retail environment.
Gross income as a percent of net sales in the second quarter of 1995
decreased to 30.5% from 32.4% in the comparable quarter of 1994. The
decrease was due primarily to low gross margins from the businesses
acquired in 1994.
Selling, general and administrative expenses ("SG&A") as a percent of
net sales in the second quarter of 1995 were 14.2% versus 15.1% in the
comparable quarter of 1994. The decrease was due primarily to a
reduction in SG&A at Goody and Lee/Rowan, a low level of SG&A at
Eberhard Faber and no increases in spending by the core businesses as
the result of cost controls.
Operating income in the second quarter of 1995 was 16.3% of net sales
or $101.1 million versus $85.2 million in the comparable quarter of
1994. The increase was primarily attributable to contributions from
the 1993 and 1994 acquisitions.
Net nonoperating expenses for 1995 were $9.5 million in the second
quarter of 1995 versus $8.5 million in the comparable quarter of 1994.
The increase was primarily due to a $13.8 million charge resulting
from the write-down in carrying value of a long-term foreign
<PAGE>
<PAGE> -11-
investment accounted for under the equity method. During the current
quarter, the Company initiated a plan to dispose of the foreign
investment and has recorded it at the net realizable value. Also
contributing to the increase in nonoperating expenses was additional
interest expense of $6.1 million resulting from the financing of the
1994 acquisitions and a $1.5 payment received in 1994 from the
settlement of a lawsuit. These increases were partially offset by a
$15.8 million gain recognized on the sale of a long-term marketable
equity security, and a $5.0 million charge in 1994 incurred in
connection with a plea agreement by a subsidiary of the Company with
the U.S. government.
For the second quarter, the effective tax rate was 40.0% in 1995 and
42.6% in 1994. The effective tax rate would have been 40.0% in 1994,
without giving effect to the $5.0 million charge discussed above.
Net income for the second quarter of 1995 was $54.9 million,
representing an increase of $10.9 million or 24.9% from the comparable
quarter of 1994. Earnings per share for the second quarter of 1995
were up 25.0% to $0.35 versus $0.28 in the comparable quarter of
1994. The increases in net income and earnings per share were
primarily attributable to contributions from the 1994 acquisitions
(net of interest expense) and the absence of the $5.0 million plea
agreement in 1995.
<PAGE>
<PAGE> -12-
Six Months Ended June 30, 1995 vs. Six Months Ended June 30, 1994
-----------------------------------------------------------------
Net sales for the first six months of 1995 were $1,177.9 million,
representing an increase of $240.9 million or 25.7% from $937.0
million in the comparable period of 1994. Net sales for each of the
Company's product groups were as follows, in millions:
<TABLE>
<CAPTION>
1995 1994 $ Change % Change
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Housewares $ 368.2 $301.5 $ 66.7 22.1%
Home Furnishings 334.8 286.6 48.2 16.8%
Office Products 295.3 168.0 127.3 75.8%
Hardware 179.6 180.9 (1.3) (0.7)%
------- ----- -----
$1,177.9 $937.0 $240.9 25.7%
======= ===== =====
</TABLE>
The overall increase in net sales was primarily attributable to sales
growth of 3% from businesses owned more than two years, including
immaterial acquisitions in 1995 of related businesses (core
businesses), and the 1994 acquisitions of HFI, Eberhard Faber and
Newell Europe. The increase in Housewares sales was due primarily to
the Newell Europe acquisition; the increase in Home Furnishings was
due primarily to the HFI acquisition; the increase in Office Products
was due to the Eberhard Faber acquisition and 17% sales growth from
core businesses; and the decrease in Hardware was due to sluggish
retail sales in the home center channel of trade. The 3% overall
sales growth from core businesses was lower than expected due to a
sluggish retail environment.
Gross income as a percent of net sales for the first six months of
1995 decreased to 30.2% from 31.5% in the comparable period of 1994.
The decrease was due primarily to low gross margins from the
businesses acquired in 1994.
Selling, general and administrative expenses as a percent of net sales
for the first six months of 1995 were 15.4% versus 16.2% in the
comparable period of 1994. The decrease was due primarily to a
reduction in SG&A at Goody and Lee/Rowan, a low level of SG&A at
Eberhard Faber and no increases in spending by the core businesses as
the result of cost controls.
Operating income for the first six months of 1995 was 14.8% of net
sales or $174.5 million versus $142.9 million in the comparable
period of 1994. The increase was attributable to improved
profitability at the core businesses and contributions from the 1993
and 1994 acquisitions.
Net nonoperating expenses for 1995 were $22.8 million for the first
six months of 1995 versus $13.8 million in the comparable period of
1994. The increase was primarily due to $16.0 million in write-downs
of the long-term foreign investment discussed previously on page 10,
<PAGE>
<PAGE> -13-
and other intangibles. Also contributing to the increase in
nonoperating expenses were additional interest expense of $12.4
million and incremental goodwill amortization of $2.0 million
resulting from the 1994 acquisitions. These increases were partially
offset by a $2.2 million increase in equity earnings from American
Tool Companies, Inc., in which the Company has a 47% ownership
interest, as well as the $15.8 million long-term marketable equity
security gain, the $5.0 million plea agreement and the $1.5 million
lawsuit settlement also discussed on page 10.
For the first six months, the effective tax rate was 40.0% in 1995 and
41.5% in 1994. The effective tax rate would have been 40.0% in 1994,
without giving effect to the $5.0 million charge discussed above.
Net income for the first six months of 1995 was $91.0 million,
representing an increase of $15.5 million or 20.6% from the comparable
period of 1994. Earnings per share for the first six months of 1995
were up 20.8% to $0.58 versus $0.48 in the comparable period of 1994.
The increases in net income and earnings per share were attributable
to improved profitability at the core businesses, contributions from
the 1993 and 1994 acquisitions and the absence of the $5.0 million
plea agreement in 1995. <PAGE>
<PAGE> -14-
Liquidity and Capital Resources
-------------------------------
The Company s primary sources of liquidity and capital resources
include cash provided from operations and use of available borrowing
facilities.
Operating activities provided net cash equal to $24.5 million during
the first six months of 1995 versus $26.7 million in the comparable
period of 1994.
The Company has foreign and domestic lines of credit with various
banks and a commercial paper program which are available for short-
term financing. Under the line of credit arrangements, the Company
may borrow up to $351.9 million (of which $248.5 million was available
at June 30, 1995) based upon such terms as the Company and the
respective banks have mutually agreed upon.
The Company has a shelf registration statement covering up to $500.0
million of debt securities, of which $147.0 million was available for
additional borrowings as of June 30, 1995. Pursuant to the shelf
registration, at June 30, 1995 the Company had outstanding $198.0
million (principal amount) of medium-term notes with maturities
ranging from one to ten years at an average rate of interest equal to
6.6%.
In June 1995, the Company entered into a five-year $550.0 million
revolving credit agreement and a $200.0 million, 364-day revolving
credit agreement (and terminated its prior existing revolving credit
agreements). Under these agreements, the Company may borrow, repay
and reborrow funds in an aggregate amount up to $750.0 million, at a
floating interest rate. At June 30, 1995, there were no borrowings
under the revolving credit agreements.
In lieu of borrowings under the revolving credit agreements, the
Company may issue up to $750.0 million of commercial paper. The
Company s revolving credit agreements referred to above provide the
committed backup liquidity required to issue commercial paper.
Accordingly, commercial paper may only be issued up to the amount
available under the Company s revolving credit agreements. At June
30, 1995, $445.0 million (face or principal amount) of commercial
paper was outstanding, all of which was supported by the revolving
credit agreements. The entire amount is classified as long-term debt
under the five-year revolving credit agreement.
The Company s primary uses of liquidity and capital resources include
capital expenditures, dividend payments and acquisitions.
Capital expenditures were $41.3 and $26.5 million in the first six
months of 1995 and 1994, respectively.
The Company has paid regular cash dividends on its common stock since
1947. On May 11, 1995, the quarterly cash dividend was increased to
$0.12 per share from the $0.10 per share that had been paid since May
<PAGE>
<PAGE> -15-
24, 1994. Dividends paid in the first six months of 1995 and 1994
were $34.7 and $30.0 million, respectively.
Working capital at June 30, 1995, was $412.8 million compared to
$133.6 million at December 31, 1994. This change was due primarily to
the classification of all commercial paper as long-term in connection
with the new five-year revolving credit agreement and a substantial
increase in receivables (resulting from the 1994 acquisitions as well
as the peak selling season in Office Products) and inventories
(resulting from the 1994 acquisitions as well as a sluggish first-half
retail environment). The current ratio at June 30, 1995 was 1.67:1
compared to 1.17:1 at December 31, 1994. The total debt to total
capitalization was .39:1 at both June 30, 1995 and December 31, 1994.
The Company believes that cash provided from operations and available
borrowing facilities will continue to provide adequate support for the
cash needs of existing businesses; however, certain events, such as
significant acquisitions, could require additional external financing.
<PAGE>
<PAGE> -16-
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
a) Exhibits:
3.1 Restated Certificate of Incorporation of Newell Co., as
amended as of May 10, 1995
3.2 By-laws of Newell Co., as amended through February 6,
1995
10.1 364-Day Credit Agreement dated as of June 12, 1995
among the Company, certain of its affiliates, The Chase
Manhattan Bank (National Association), as Agent, and
the banks whose names appear on the signature pages
thereto.
10.2 Five Year Credit Agreement dated as of June 12, 1995
among the Company, certain of its affiliates, The Chase
Manhattan Bank (National Association), as Agent, and
the banks whose names appear on the signature pages
thereto.
27 Financial Data Schedule
b) Reports on Form 8-K: None
<PAGE>
<PAGE> -17-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
NEWELL CO.
Date August 4, 1995 /s/ William T. Alldredge
------------------ ---------------------------------
William T. Alldredge
Vice President - Finance
Date August 4, 1995 /s/ Brett E. Gries
------------------ ---------------------------------
Brett E. Gries
Vice President - Accounting & Tax
EXHIBIT 3.1
Filed May 18, 1987 at 3:00 p.m.
Delaware Secretary of State
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
NEW NEWELL CO., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is NEW NEWELL CO. (the
"Corporation"). The date of filing the Corporation's original
Certificate of Incorporation with the Secretary of State of the
State of Delaware was February 23, 1987.
2. The text of the Certificate of Incorporation of the
Corporation as amended or supplemented heretofore and herewith is
hereby restated to read as herein set forth in full:
FIRST: the name of the Corporation is NEW NEWELL CO.
SECOND: The address of the Corporation's registered office in
the State of Delaware is 229 South State Street in the City of Dover,
County of Kent. The name of the Corporation's registered agent at
such address is United States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 56,000,000, consisting of 50,000,000 shares
of Common Stock of the par value of $1.00 per share and 6,000,000
shares of Preferred Stock, consisting of 10,000 shares without par
value and 5,990,000 shares of the par value of $1.00 per share. The
designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of each of the
classes of stock of the Corporation are as follows:
A. Common Stock. Each holder of Common Stock shall be entitled
to one (1) vote for each such share of Common Stock.
B. Preferred Stock. The Preferred Stock shall be issued from
time to time in one or more series with such distinctive serial
designations and (a) may have such voting powers, full or limited, or
may be without voting powers; (b) may be subject to redemption at such
time or times and at such price or prices; (c) may be entitled to
receive dividends (which may be cumulative or noncumulative) at such
rate or rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any
<PAGE>
<PAGE> -19-
other class or classes of stock; (d) may have such rights upon the
dissolution of, or upon any distribution of the assets of, the
Corporation; (e) may be made convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the
same or any other class or classes of stock of the Corporation, at
such price or prices or at such rates of exchange and with such
adjustments; and (f) shall have such other relative, participating,
optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such
Preferred Stock from time to time adopted by the Board of Directors
pursuant to authority so to do which is hereby expressly vested in the
Board.
C. Increase in Authorized Shares. The number of authorized
shares of any class of stock of the Corporation may be increased by
the affirmative vote of a majority of the stock of the Corporation
entitled to vote thereon, without a vote by class or by series.
FIFTH: The name and mailing address of the incorporator of the
Corporation is as follows:
Name Address
------------------------ -------------------------
Lori E. Simon . . . . . . Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
SIXTH: A. The Board of Directors shall be divided into three
classes (which at all times shall be as nearly equal in number as
possible). The initial term of office of the first class ("Class I")
shall expire at the 1988 annual meeting of stockholders, the initial
term of office of the second class ("Class II") shall expire at the
1989 annual meeting of stockholders, and the initial term of office of
the third class ("Class III") shall expire at the 1990 annual meeting
of stockholders. At each annual meeting of stockholders following
such initial classification, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after
their election. The foregoing notwithstanding, each director shall
serve until his successor shall have been duly elected and qualified,
unless he shall cease to serve by reason of death, resignation or
other cause. If the number of directors is changed, any increase or
decease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, but in
no case shall a decrease in the number of directors shorten the term
of any incumbent director.
<PAGE>
<PAGE> -20-
B. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, and the Board of
Directors shall determine the rights, powers, duties, rules and
procedures that shall affect the power of the Board of Directors to
manage and direct the business and affairs of the Corporation.
C. Newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by a sole remaining director. Any director so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he has
been elected expires.
D. The provisions set forth in paragraphs A and C of this
Article SIXTH are subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation.
E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article SIXTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article SIXTH be
adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article SIXTH as one class.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the By-Laws of the Corporation.
EIGHTH: A. Subject to the rights of holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation, nominations for
the election of directors may be made by the Board of Directors or by
a committee appointed by the Board of Directors, or by any stockholder
entitled to vote in the election of directors generally provided that
such stockholder has given actual written notice of such stockholders'
intent to make such nomination or nominations to the Secretary of the
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<PAGE> -21-
Corporation not later than (1) with respect to an election to be held
at an annual meeting of stockholders, 90 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders, and
(2) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on
the seventh day following (a) the date on which notice of such meeting
is first given to stockholders or (b) the date on which public
disclosure of such meeting is made, whichever is earlier.
B. Each such notice shall set forth: (1) the name and address
of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (2) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
(3) a description of all arrangements or understandings involving any
two or more of the stockholders, each such nominee and any other
person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder or
relating to the Corporation or its securities or to such nominee's
service as a director if elected; (4) such other information regarding
each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (5) the
consent of each nominee to serve as a director of the Corporation if
so elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
C. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article EIGHTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article EIGHTH
be adopted, unless such action is approved by the affirmative vote of
the holders of at least 75% of the total voting powers of all shares
of stock of the Corporation entitled to vote in the election of
directors generally, considered for purposes of this Article EIGHTH as
one class.
NINTH: A. Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing by such stockholders.
B. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article NINTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article NINTH be
<PAGE>
<PAGE> -22-
adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article NINTH as one class.
TENTH: A. Notwithstanding any other provision of this Restated
Certificate of Incorporation and in addition to any affirmative vote
which may be otherwise required, no Business Combination shall be
effected or consummated except as expressly provided in paragraph B of
this Article TENTH, unless such Business Combination has been approved
by the affirmative vote of the holders of at least 75% of the Voting
Shares.
B. The provisions of Article TENTH shall not apply to any
Business Combination if:
1. The Business Combination has been approved by a
resolution adopted by a majority of those members of the Board of
Directors who are not Interested Directors with respect to the
Business Combination; or
2. All of the following conditions have been met: (a) the
aggregate amount of the cash and the Fair Market Value of Other
Consideration to be received for each share of Common Stock in
the Business Combination by holders thereof is not less than the
higher of: (i) the highest per share price (including any
brokerage commissions, transfer taxes, soliciting dealer's fees,
dealer-management compensation and similar expenses) paid or
payable by an Interested Party with an interest in the Business
Combination to acquire beneficial ownership of any shares of
Common Stock within the two-year period immediately prior to the
first public announcement of the proposed Business Combination
(the "Announcement Date"), or (ii) the highest market price per
share of the Common Stock on the Announcement Date or on the
date on which the Interested Party became an Interested Party,
whichever is higher; (b) the consideration to be received in the
Business Combination by holders of Common Stock other than an
Interested Party with an interest in the Business Combination
shall be either in cash or in the same form used by an Interested
Party with an interest in the Business Combination to acquire the
largest number of shares of Common Stock acquired by all
Interested Parties with an interest in the Business Combination
from one or more persons who are not Interested Parties with an
interest in the Business Combination; and (c) at the record date
for the determination of stockholders entitled to vote on the
proposed Business Combination, there shall be one or more
directors of the Corporation who are not Interested Directors
with respect to the Business Combination.
<PAGE>
<PAGE> -23-
C. For purposes of this Article TENTH.
1. An "Associate" of a specified person is (a) a person
that, directly or indirectly (i) controls, is controlled by, or
is under common control with, the specified person, (ii) is the
beneficial owner of 10% or more of any class of the equity
securities of the specified person, or (iii) has 10% or more of
any class of its equity securities beneficially owned, directly
or indirectly, by the specified person; (b) any person (other
than the Corporation or a Subsidiary) of which the specified
person is an officer, director, partner or other official and any
officer, director, partner or other official of the specified
person; (c) any trust or estate in which the specified person
serves as trustee or in a similar fiduciary capacity, or any
trustee or similar fiduciary of the specified person; and (d) any
relative or spouse who has the same home as the specified person
or who is an officer or director of any person (other than the
Corporation or a Subsidiary), directly or indirectly,
controlling, controlled by or under common control with the
specified person. No director of the Corporation, however, shall
be deemed to be an Associate of any other director of the
Corporation by reason of such service as a director or by
concurrence in any action of the Board of Directors.
2. "Beneficial Ownership" of any Voting Shares shall be
determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934 as in effect on the date on which this Article TENTH
is approved by the stockholders of the Corporation, provided,
however, that a person shall in any event, be the beneficial
owner of any Voting Shares; (a) which such person, or any of such
person's Associates, beneficially owns, directly or indirectly;
(b) which such person or any of such person's Associates,
directly or indirectly, (i) has the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding;
or upon the exercise of conversion rights, exchange rights,
warrants or options; or pursuant to the power to revoke a trust,
discretionary account or other arrangement; or (ii) has or shares
the power, or has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) the
exclusive or shared power, to vote or direct the vote pursuant to
any agreement, arrangement, relationship or understanding; or
pursuant to the power to revoke a trust, discretionary account or
other arrangement; or (c) which are beneficially owned, directly
or indirectly, by any other person with which such first-
mentioned person or any of its Associates has any agreement,
arrangement or understanding, or is acting in concert with
respect to acquiring, holding, voting or disposing of any Voting
Shares; provided, however, that no director of the Corporation
<PAGE>
<PAGE> -24-
shall be deemed to be acting in concert with any other director
of the Corporation by reason of such service as a director or by
concurrence in any action of the Board of Directors.
3. "Business Combination" shall mean: (a) any merger or
consolidation of the Corporation or any Subsidiary with or into
any Interested Party or any Associate or an Interested Party; (b)
any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one or a series of related transactions) of all
or any Substantial Part of the Consolidated Assets of the
Corporation to or with any Interested Party or any Associate of
an Interested Party; (c) any issuance, sale, exchange, transfer
or other disposition by the Corporation or any Subsidiary (in one
or a series of related transactions) of any securities of the
Corporation or any Subsidiary to or with any Interested Party or
any Associate of an Interested Party; or (d) any spin-off, split-
up, reclassification of securities (including any reverse stock
split), recapitalization, reorganization, liquidation or
dissolution of the Corporation with any Subsidiary or any other
transaction involving the Corporation or any Subsidiary (whether
or not with or otherwise involving an Interested Party) that has
the effect, directly or indirectly, of increasing the
proportionate interest of any Interested Party or any Associate
of an Interested Party in the equity securities or assets of the
Corporation or any Subsidiary.
4. "Fair Market Value" means: (a) in the case of stock, the
average closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for the New York Stock Exchange Listed Stocks, or,
if such stock is not quoted on the Composite Tape on the New York
Stock Exchange, or, if such stock is not listed on such exchange,
on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the
average closing bid quotation with respect to a share of such
stock during the 30-day period immediately preceding the date in
question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, provided
that, if no such prices or quotations are available, or if a
majority of those members of the Board of Directors who are not
Interested Directors with respect to the Business Combination
determine that such prices or quotations do not represent fair
market value, the Fair Market Value of such stock shall be
determined pursuant to clause (b) below; and (b) in the case of
property other than cash or stock, or in the case of stock as to
which Fair Market Value is not determined pursuant to clause (a)
above, the Fair Market Value on the date in question as
determined by a majority of those members of the Board of
<PAGE>
<PAGE> -25-
Directors who are not Interested Directors with respect to the
Business Combination. In making any such determination, the
Board of Directors may, but shall not be required to, engage the
services of an Investing Banking Firm.
5. "Interested Director" shall mean each director of the
Corporation who (a) is an Interested Party or an Associate of an
Interested Party; (b) has an Associate who is an Interested
Party; (c) was nominated or proposed to be elected as a director
of the Corporation by an Interested Party or an Associate of an
Interested Party; or (d) is, or has been nominated or proposed to
be elected as, an officer, director or employee of an Interested
Party or of an Associate of an Interested Party.
6. "Interested Party" shall mean any person (other than
the Corporation or a Subsidiary) that is the beneficial owner,
directly or indirectly, of 5% or more of the Voting Shares (a) in
connection with determining the required vote by stockholders on
any Business Combination, as of any of the following dates: the
record date for the determination of stockholders entitled to
notice of or to vote on such Business Combination or immediately
prior to the consummation of any such Business Combination or the
adoption by the Corporation of any plan or proposal with respect
thereto; (b) in connection with determining the required vote by
stockholders on any amendment, alteration or repeal of, or
adoption of a provision inconsistent with, this Article TENTH
pursuant to paragraph E of this Article TENTH, as of the record
date for the determination of stockholders entitled to notice and
to vote on such amendment, alteration, repeal or inconsistent
provision; and (c) in connection with determining whether a
director is an "Interested Director" in respect of any
determination made by the Board of Directors pursuant to
paragraph D of this Article TENTH, as of the date at which the
vote on such recommendation or determination is being undertaken,
or as close as is reasonably practicable to such date.
7. An "Investment Banking Firm" shall mean an investment
banking firm that has not previously been associated with any
Interested Party with an interest in the Business Combination,
which is selected by a majority of the directors of the
Corporation who are not Interested Directors with respect to the
Business Combination, engaged solely on behalf of the holders of
Common Stock other than Interested Parties with an interest in
the Business Combination, and paid a reasonable fee for its
services.
8. "Other Consideration" shall include (without
limitation) Common Stock and/or any other class or series of
stock of the Corporation retained by stockholders of the
<PAGE>
<PAGE> -26-
Corporation in the event of a Business Combination in which the
Corporation is the surviving corporation.
9. A "Person" shall include (without limitation) any
natural person, corporation, partnership, trust or other entity,
organization or association, or any two or more persons acting in
concert or as a syndicate, joint venture or group.
10. "Subsidiary" shall mean any corporation of which a
majority of any class of equity securities is owned, directly or
indirectly, by the Corporation; provided, however, that for
purposes of paragraph C.6 of this Article TENTH, the term
"Subsidiary" shall mean only a corporation of which a majority of
each class of equity securities is owned, directly or indirectly,
by the Corporation.
11. "Substantial Part of the Consolidated Assets" of the
Corporation shall mean assets of the Corporation and/or any
Subsidiary having a book value (determined in accordance with
generally accepted accounting principles) in excess of 10% of the
book value (determined in accordance with generally accepted
accounting principles) of the total consolidated assets of the
Corporation and all Subsidiaries which are consolidated for
public financial reporting purposes, at the end of its most
recent quarterly fiscal period ending prior to the time the
determination is made for which financial information is
available.
12. "Voting Shares" shall mean the outstanding shares of
all classes of stock of the Corporation entitled to vote for the
election of directors generally, considered for purposes of this
Article TENTH as one class. "Voting Shares" shall include shares
deemed owned by any Interested Party or any Associate of an
Interested Party through application of paragraph C.2 of this
Article TENTH, but shall not include any other shares which may
be issuable based upon a right to acquire such shares (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding,
or upon the exercise of conversion rights, exchange rights,
warrants or options, or pursuant to the power to revoke a trust,
discretionary account, or other arrangement or otherwise.
D. A majority of those members of the Board of Directors who
are not Interested Directors with respect to the Business Combination
shall have the power and duty to interpret the provisions of this
Article TENTH and to make all determinations to be made under this
Article TENTH. Any such interpretation or determination shall be
conclusive and binding for all purposes of this Article TENTH.
<PAGE>
<PAGE> -27-
E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation, the
provisions set forth in this Article TENTH may not be amended, altered
or repealed in any respect, nor may any provision inconsistent with
this Article TENTH be adopted, unless such action is approved by the
affirmative vote of the holders of at least 75% of the Voting Shares.
F. Nothing contained in this Article TENTH shall be construed
to relieve any Interested Party from any fiduciary obligation imposed
by law.
ELEVENTH: Except as otherwise provided in this Restated
Certificate of Incorporation, the Board of Directors shall have
authority to authorize the issuance, from time to time without any
vote or other action by the stockholders, of any or all shares of
stock of the Corporation of any class at any time authorized, any
securities convertible into or exchangeable for any such shares so
authorized, and any warrant, option or right to purchase, subscribe
for or otherwise acquire, shares of stock of the Corporation of any
class at any time authorized, in each case to such persons and for
such consideration and on such terms as the Board of Directors from
time to time in its discretion lawfully may determine; provided,
however, that the consideration for the issuance of shares of stock of
the corporation having par value shall not be less than such par
value. Stock so issued, for which the consideration has been paid to
the Corporation, shall be fully paid stock, and the holders of such
stock shall not be liable to any further call or assessments thereon.
TWELFTH: No holder of stock of any class of the Corporation or
of any security convertible into, or of any warrant, option or right
to purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized, shall, as such
holder, have any pre-emptive right whatsoever to purchase, subscribe
for or otherwise acquire, stock of any class of the Corporation or any
security convertible into, or any warrant, option or right to
purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized.
THIRTEENTH: Anything herein contained to the contrary
notwithstanding, any and all right, title, interest, and claim in or
to any dividends declared, or other distributions made, by the
Corporation, whether in cash, stock or otherwise, which are unclaimed
by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be deemed to
be extinguished and abandoned; and such unclaimed dividends or other
distributions in the possession of the Corporation, its transfer
agents or other agents or depositaries, shall at such time become the
absolute property of the Corporation, free and clear of any and all
claims of any persons whatsoever.
<PAGE>
<PAGE> -28-
FOURTEENTH: A. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he
is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another
Corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges and other expenses (including
attorneys' fees) ("Expenses"), judgments, fines and amount paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding and any appeal thereof if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this Article, "serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise" shall include any service by a director or officer of the
Corporation as a director, officer, employee, agent or fiduciary of
such other Corporation, partnership, joint venture, trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
B. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was or has agreed to become a director or officer of the Corporation
or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another Corporation,
partnership, joint venture, trust or other enterprise or by reason of
any action alleged to have been taken or omitted in such capacity
against Expenses actually and reasonably incurred by him in connection
with the investigation, defense or settlement of such action or suit
and any appeal thereof if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
<PAGE>
<PAGE> -29-
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such Expenses which the Court of Chancery of
Delaware or such other court shall deem proper.
C. To the extent that any person referred to in paragraphs (A)
or (B) of this Article has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to
therein or in defense of any claim, issue or matter therein, he shall
be indemnified against Expenses actually and reasonably incurred by
him in connection therewith.
D. Any indemnification under paragraphs (A) or (B) of this
Article (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct
set forth in paragraphs (A) or (B). Such determination shall be made
(i) by the board of directors by a majority vote of a quorum (as
defined in the By-Laws of the Corporation) consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
E. Expenses incurred in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding and appeal upon
receipt by the Corporation of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation.
F. The determination of the entitlement of any person to
indemnification under paragraphs (A), (B) or (C) or to advancement of
Expenses under paragraph (E) of this Article shall be made promptly,
and in any event within 60 days after the Corporation has received a
written request for payment from or on behalf of a director or officer
and payment of amounts due under such sections shall be made
immediately after such determination. If no disposition of such
request is made within said 60 days or if payment has not been made
within 10 days thereafter, or if such request is rejected, the right
to indemnification or advancement of Expenses provided by this Article
shall be enforceable by or on behalf of the director or officer in any
court of competent jurisdiction. In addition to the other amounts due
<PAGE>
<PAGE> -30-
under this Article, Expenses incurred by or on behalf of a director or
officer in successfully establishing his right to indemnification or
advancement of Expenses, in whole or in part, in any such action (or
settlement thereof) shall be paid by the Corporation.
G. The indemnification and advancement of Expenses provided by
this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of Expenses may be
entitled under any law (common or statutory), By-Law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office, or while employed by or acting as a
director or officer of the Corporation or as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of this Article, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in paragraphs (A) or
(B) of this Article to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
H. All rights to indemnification and advancement of Expenses
provided by this Article shall be deemed to be a contract between the
Corporation and each director or officer of the Corporation who
serves, served or has agreed to serve in such capacity, or at the
request of the Corporation as director or officer of another
corporation, partnership, joint venture, trust or other enterprise, at
any time while this Article and the relevant provisions of the
Delaware General Corporation Law or other applicable law, if any, are
in effect. Any repeal or modification of this Article, or any repeal
or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable law, shall not in any way
diminish any rights to indemnification of or advancement of Expenses
to such director or officer or the obligations of the Corporation.
I. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was or has agreed to
become a director or officer of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article.
J. The Board of Directors may, by resolution, extend the
provisions of this Article pertaining to indemnification and
<PAGE>
<PAGE> -31-
advancement of Expenses to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that he is or was or
has agreed to become an employee, agent or fiduciary of the
Corporation or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise or with respect to any employee benefit plan (or its
participants or beneficiaries) of the corporation or any such other
enterprise.
K. The invalidity or unenforceability of any provision of this
Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
FIFTEENTH: No person who was or is a director of this
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for breach of the duty of loyalty
to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing
violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the effective date of this Article to
further eliminate or limit, or to authorize further elimination or
limitation of, the personal liability of directors for breach of
fiduciary duty as a director, then the personal liability of a
director to this Corporation or its stockholders shall be eliminated
or limited to the full extent permitted by the Delaware General
Corporation Law, as so amended. For purposes of this Article,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and "personally liable to the Corporation" shall
include any liability to such other Corporation, partnership, joint
venture, trust or other enterprise, and any liability to this
Corporation in its capacity as a security holder, joint venturer,
partner, beneficiary, creditor or investor of or in any such other
corporation, partnership, joint venture, trust or other enterprise.
Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this Article.
<PAGE>
<PAGE> -32-
SIXTEENTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the provisions of
section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for
this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of
this Corporation, as the case may be, and also this Corporation.
SEVENTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate
of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon the stockholders herein are
granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in
Articles SIXTH, EIGHTH, NINTH, and TENTH may not be amended, altered
or repealed in any respect nor may any provision inconsistent with any
of such Articles be adopted unless such amendment, alteration, repeal
or inconsistent provision is approved as specified in each such
respective Article.
3. This Restated Certificate of Incorporation was duly
authorized by a resolution duly adopted and approved by consent of the
sole Director, dated as of May 1, 1987, the Corporation not yet having
received payment for any of its stock, in accordance with the
provisions of Section 241 and Section 245 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, New Newell Co. has caused this Restated
Certificate of Incorporation to be signed by William T. Alldredge, its
<PAGE>
<PAGE> -33-
Vice President-Finance, and attested by Roland E. Knecht, its
Secretary this 18th day of May, 1987.
NEW NEWELL CO.
William T. Alldredge
Vice President-Finance
ATTEST:
Roland E. Knecht
Secretary
<PAGE>
Filed June 23, 1987 at 9:01 a.m.
877174060 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
CUMULATIVE PREFERRED STOCK
($2,000 Stated Value)
of
--
NEW NEWELL CO.
-------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
--------------------------
The undersigned DOES HEREBY CERTIFY that the following resolution
was duly adopted by the written consent of the sole director of New
Newell Co., a Delaware corporation, on May 18, 1987:
RESOLVED by the Board of Directors of New Newell Co., a Delaware
corporation (the "Corporation"), that, pursuant to authority expressly
granted to it by the Restated Certificate of Incorporation of the
Corporation, a total of 7,500 shares of the preferred stock without
par value, of the Corporation are hereby respectively constituted as
Series 1 Cumulative Preferred Stock, Series 2 Cumulative Preferred
Stock, Series 3 Cumulative Preferred Stock, Series 4 Cumulative
Preferred Stock and Series 5 Cumulative Preferred Stock, with an
aggregate stated value of $15,000,000 (hereinafter called "Cumulative
Preferred Stock"). Each series of such Cumulative Preferred Stock
shall consist of 1,500 shares, with a stated value of $2,000 per
share. Shares of Cumulative Preferred Stock shall be issued only upon
effectiveness of the merger of Newell Co., a Delaware corporation, and
Newell Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Corporation (the "Merger"). The preferences and the
relative, participating, optional and other special rights of the
shares of Cumulative Preferred Stock and the qualifications,
limitations or restrictions thereof, shall be as follows:
1. CUMULATIVE DIVIDENDS. (a) The holders of record of shares of
each series of Cumulative Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors out of funds
<PAGE>
<PAGE> -35-
Legally available for the payment thereof, cumulative cash dividends
at the rate specified in subsection (b) below, and no more. The
holders of shares of Cumulative Preferred Stock shall not be entitled
to any dividends other than the cash dividends provided for in this
section. Dividends shall accrue daily from the date of issuance,
whether or not earned or declared, and shall be payable quarterly on
such dates as the Board of Directors may from time to time determine.
The dividends shall be in preference to dividends upon any stock
(including common stock) of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends. If the Corporation has
not paid full dividends upon the shares of Cumulative Preferred Stock
for any preceding quarter, the Corporation shall declare and pay the
amount for payment, before declaring or paying any cash dividends on
the common stock of the Corporation. Accrued dividends on Cumulative
Preferred Stock shall not bear interest.
(b) The dividend rate for each series of Cumulative Preferred
Stock is as follows:
(i) For Series 1, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1989, after which
time the rate shall be $160 per share per annum.
(ii) For Series 2, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1990, after which
time the rate shall be $160 per share per annum.
(iii) For Series 3, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1991, after which
time the rate shall be $160 per share per annum.
(iv) For Series 4, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1992, after which
time the rate shall be $160 per share per annum.
(v) For Series 5, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1993, after which
time the rate shall be $160 per share per annum.
2. LIQUIDATION. (a) In the event of a voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the
holders of shares of Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation an amount equal to the
stated value per share plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for distribution. This
distribution shall be in preference to any such distribution upon any
stock (including common stock) of the Corporation ranking junior to
Cumulative Preferred Stock as to liquidation preferences, but subject
to the prior rights of the holders of shares of all stock ranking
<PAGE>
<PAGE> -36-
senior to Cumulative Preferred Stock as to liquidation preferences.
If the assets of the Corporation are not sufficient to pay the full
amounts to the holders of Cumulative Preferred Stock and all other
series of preferred stock of the Corporation ranking equally with the
shares of Cumulative Preferred Stock as to liquidation preferences,
then the holders of Cumulative Preferred Stock and of such other
series shall share ratably in the distribution of any assets remaining
after distribution to holders of stock ranking senior to Cumulative
Preferred Stock as to liquidation preferences.
(b) Nothing in this section, however, shall be deemed to prevent
the Corporation from redeeming or purchasing Cumulative Preferred
Stock as permitted by Section 3.
(c) A merger or consolidation of the Corporation with any other
corporation or a sale, lease, or conveyance of assets or a business
combination involving the Corporation or any related or similar
transaction shall not be considered a liquidation, dissolution, or
winding up the Corporation within the meaning of this section.
3. REDEMPTION. (a) The Corporation may redeem any or all
shares of one or more series of Cumulative Preferred Stock at its
option by resolution of the Board of Directors, at any time and from
time to time on or after issuance, in cash, at the stated value of the
shares plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. In the event that the
Corporation redeems less than the entire number of shares of any
series of Cumulative Preferred Stock outstanding at any one time, the
Corporation shall select the shares to be redeemed by lot or pro rata
or by any other manner that the Board of Directors deems equitable.
No less than 20 nor more than 120 days prior to the date fixed for any
entire or partial redemption of Cumulative Preferred Stock, the
Corporation shall mail a notice of the redemption to the holders of
record of the shares to be redeemed at their addresses as they appear
on the books of the Corporation. The notice shall state the time and
place of redemption and shall identify the particular shares to be
redeemed if less than all of the outstanding shares are to be
redeemed. Failure to mail a notice or a defect in a notice or its
mailing shall not affect the validity of the redemption proceedings.
(b) On or before the date fixed for redemption each holder of
shares of Cumulative Preferred Stock called for redemption shall
surrender his certificate representing his shares to the Corporation
or its agent at the place designated in the redemption notice. If the
Corporation redeems less than all of the shares represented by a
surrendered certificate, the Corporation shall issue a new certificate
representing the unredeemed shares. If the Corporation has duly given
notice of redemption and if funds necessary for the redemption are
available on the redemption date, then notwithstanding that any holder
<PAGE>
<PAGE> -37-
has not surrendered his certificate representing shares called for
redemption, all rights with respect to those shares shall cease and
determine immediately after the redemption date, except that such a
holder shall have the right to receive the redemption price without
interest upon surrender of his certificate.
(c) The Corporation may, at its option at any time after giving
a notice of redemption, deposit a sum sufficient to redeem the shares
called for redemption, plus any accrued and unpaid dividends thereon
to the redemption date, with any bank or trust company in the City of
Chicago, Illinois, or in the City of Minneapolis, Minnesota, having
capital, surplus, and undivided profits aggregating at least
$50,000,000 as a trust fund with irrevocable instructions and
authority to the bank or trust company to mail notice of redemption if
the Corporation has not begun or completed such mailing at the time of
the deposit and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon the surrender of their share certificates. From the date
the Corporation makes such a deposit, the shares designated for
redemption shall be treated as redeemed and no longer outstanding, and
no dividends shall accrue on the shares after the date fixed for
redemption. The deposit shall be deemed to constitute full payment of
the shares to their holders. From the date of the deposit, the
holders of the shares shall cease to be stockholders with respect to
the shares; they shall have no interest in or claim against the
Corporation by virtue of the shares; and they shall have no rights
with respect to the shares except the right to receive from the bank
or trust company payment of the redemption price of the shares,
without interest, upon surrender of their certificates. At the
expiration of five years after the redemption date, the bank or trust
company shall pay over to the Corporation any funds then remaining on
deposit, free of trust. Thereafter the holders of certificates for
the shares shall have no claims against the bank or trust company, but
only claims as unsecured creditors against the Corporation for amounts
equal to their pro rata portions of the funds paid over, without
interest, subject to compliance by the holders with the terms of the
redemption. Any interest on or other accretions to funds deposited
with the bank or trust company shall belong to the Corporation.
(d) Nothing in this Resolution shall prevent or restrict the
Corporation from purchasing, from time to time, at public or private
sale, any or all of the Cumulative Preferred Stock at whatever prices
the Corporation may determine, but at prices not exceeding those
permitted by Delaware law.
(e) Nothing in this Resolution shall give any holder of
Cumulative Preferred Stock the right to require the Corporation to
redeem any or all shares of the Stock.
<PAGE>
<PAGE> -38-
4. CONVERSION. The Cumulative Preferred Stock is not
convertible into any other class or series of common or preferred
stock of the Corporation.
5. STATUS OF REACQUIRED STOCK. The Corporation shall retire
and cancel any shares of Cumulative Preferred Stock that it redeems,
purchases, or acquires. Such shares thereafter shall have the status
of authorized but unissued shares of preferred stock. Subject to the
limitations in this Resolution or in any resolutions adopted by the
Board of Directors providing for the reissuance of the shares, the
Corporation may reissue the shares as shares of Cumulative Preferred
Stock or may reclassify and reissue them as preferred stock of any
class or series other than Cumulative Preferred Stock.
6. VOTING RIGHTS. (a) Except as otherwise provided herein or
as may be required by law, the holders of Cumulative Preferred Stock
shall be entitled to one vote per share on every question submitted to
holders of record of the common stock of the Corporation, voting
together with the common stock of the Corporation as a single class.
(b) Notwithstanding the foregoing, (i) without the affirmative
vote or consent of at least a majority of the shares of Cumulative
Preferred Stock then outstanding voting as a separate class, the
Corporation shall not amend the Restated Certificate of Incorporation
if the amendment would alter or change the powers, preferences, or
special rights of the shares of Cumulative Preferred Stock so as to
affect them adversely, provided that this clause "(i)" shall not apply
to an increase or decrease (but not below the number of shares thereof
then outstanding) in the number of authorized shares of any class or
classes of stock; and (ii) so long as at least 3,100 shares of
Cumulative Preferred Stock are outstanding, without the affirmative
vote or consent of the holders of at least a majority of the shares of
Cumulative Preferred Stock then outstanding voting as a separate
class, the Corporation shall not issue any stock ranking senior to the
Cumulative Preferred Stock with respect to the payment of dividends or
the distribution of assets upon liquidation, except that the
Corporation may issue such stock if the consideration therefor
consists of cash. For purposes of any vote required pursuant to
clause (i) of this subsection (b) if any proposed amendment would
alter or change the powers, preferences, or special rights of one or
more of Series 1, 2, 3, 4, or 5 of Cumulative Preferred Stock so as to
affect them adversely but shall not so affect the entire class, then
only the shares of the series so affected by the amendment shall be
considered a separate class.
7. NO OTHER RIGHTS. The shares of Cumulative Preferred Stock
shall not have any relative, participating, optional or other special
rights or powers other than as set forth above and in the Restated
Certificate of Incorporation of the Corporation.
<PAGE>
<PAGE> -39-
IN WITNESS WHEREOF, New Newell Co. has caused this resolution to
be signed by William T. Alldredge, its Vice President - Finance, and
attested by Roland E. Knecht, its Secretary, this 22nd day of June,
1987.
NEW NEWELL CO.
William T. Alldredge,
Vice President - Finance
ATTEST:
Roland E. Knecht,
Secretary
<PAGE>
Filed July 2, 1987 at 9:29 a.m.
877183082 Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
------------------------------------------------------------
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
------------------------------------------------------------
New Newell Co., a corporation existing under the laws of the
State of Delaware, does hereby certify as follows:
FIRST: That Article First of the Restated Certificate of
Incorporation of the Corporation has been amended in its entirety to
read as follows:
FIRST: The name of the Corporation is NEWELL CO.
SECOND: That the foregoing amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the written consent of the holder of all outstanding
shares entitled to vote.
<PAGE>
<PAGE> -41-
IN WITNESS WHEREOF, New Newell Co. has caused this Certificate to
be signed and attested by its duly authorized officers this 30th day
of June 1987.
NEW NEWELL CO.
By: /s/ William T. Alldredge
-----------------------
Vice President - Finance
Attest:
/s/ Roland E. Knecht
-----------------------------
Secretary
<PAGE>
Filed October 31, 1988 at 9:00 a.m.
688305050 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
----------------------------------------
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
----------------------------------------
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was
adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called
and held on October 20, 1988:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance with the
provisions of the Corporation's Restated Certificate of Incorporation,
the Board of Directors hereby creates a series of Preferred Stock, par
value $1.00 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the
relative rights, preferences and limitations of such series, as
follows:
Junior Participating Preferred Stock, Series B:
Section 1. Designation and Amounts. The shares of such
series shall be designated as "Junior Participating Preferred Stock,
Series B" (the "Series B Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be 500,000. Such
number of shares may be increased or decreased by resolution of the
Board; provided, that no decrease shall reduce the number of shares of
Series B Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
<PAGE>
<PAGE> -43-
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series B Preferred Stock with respect
to dividends, the holders of shares of Series B Preferred Stock,
in preference to the holders of Common Stock, par value $1.00 per
share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the first
day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $15 or
(b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
<PAGE>
<PAGE> -44-
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $15 per share on the Series B Preferred Stock
shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the number of votes per share to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
<PAGE>
<PAGE> -45-
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Series
B Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series B Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series B Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
<PAGE>
<PAGE> -46-
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity with the
Series B Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of Preferred Stock subject
to the conditions and restrictions on issuance set forth herein, in
the Corporation's Restated Certificate of Incorporation or in any
other Certificate of Designations creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B Preferred Stock shall
have received $10,000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of shares of Common Stock, or (B) to the holders
of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation
<PAGE>
<PAGE> -47-
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series B Preferred Stock
shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series B Preferred
Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series B Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series B Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the Corporation's
Preferred Stock.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner
which would materially alter or change the powers, preferences or
<PAGE>
<PAGE> -48-
special rights of the Series B Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Series B Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Corporation by its Chairman of the Board and
attested by its Secretary this 20th day of October 1988.
William T. Alldredge
Vice President - Finance
Attest:
Roland E. Knecht
Secretary
<PAGE>
Filed September 13, 1989
Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
We, William T. Alldredge, Vice President, and Roland E.
Knecht, Secretary, of Newell Co., a corporation existing under the
laws of the State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.,
formerly known as New Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, and that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987.
THIRD: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
110,000,000, consisting of 100,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,00,000 shares of Preferred Stock,
consisting of 10,000 shares without par value and
<PAGE>
<PAGE> -50-
9,990,000 shares of the par value of $1.00 per
share.
FOURTH: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this
28th day of June, 1989.
NEWELL CO.
William T. Alldredge
Vice President - Finance
ATTEST:
Roland E. Knecht
Secretary
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/15/1991
911355135 - 2118347
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
We, William T. Alldredge, Vice President and Roland E.
Knecht, Secretary, of Newell Co., a corporation existing under the
laws of the State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987, a Certificate of Amendment
was filed by the Secretary of State of Delaware on the second day of
July, 1987, and a Certificate of Amendment was filed by the Secretary
of State of Delaware on 13th day of September, 1989.
THIRD: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
<PAGE>
<PAGE> -52-
310,000,000, consisting of 300,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,000,000 shares of Preferred Stock,
consisting of 10,000 shares without par value, and
9,990,000 shares of the par value of $1.00 per
share.
FOURTH: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 9th
day of May, 1991.
NEWELL CO.
William T. Alldredge
Vice President - Finance
ATTEST:
Roland E. Knecht
Secretary
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 06/11/1991
911625086 - 2118347
AMENDED CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR
THE POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
------------------------------
Pursuant to Section 151 of the General
Corporation Law of the
State of Delaware
------------------------------
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was
adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called
and held on February 14, 1991:
RESOLVED, that the first sentence of Section 1 of the
Certificate of Designations as to the resolution providing for the
powers, designation, preferences and relative, participating, optional
or other rights, and the qualifications, limitations or restrictions
thereof, as are not stated and expressed in the Restated Certificate
of Incorporation or in any amendment thereto, of the Junior
Participating Preferred Stock, Series B of Newell Co. (the
"Certificate of Designations") which was filed in the Office of the
Secretary of State of Delaware on October 31, 1988, is hereby amended
to read as follows:
The shares of such series shall be designated as
"Junior Participating Preferred Stock, Series B"
(the "Series B Preferred Stock") and the number of
shares constituting the Series B Preferred Stock
shall be 5,000,000.
<PAGE>
<PAGE> -54-
IN WITNESS WHEREOF, this Amended Certificate of Designations
is executed on behalf of the Corporation by its Vice President-Finance
and attested by its Secretary this 5th day of June, 1991.
William T. Alldredge
Vice President - Finance
Attest:
Roland E. Knecht
Secretary
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 11/03/1994
944211670 - 2118347
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
Newell Co., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is United States
Corporation Company and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of
adopted the following resolution on the 2nd day of November, 1994.
Resolved, that the registered office of Newell Co. in the
state of Delaware be and it hereby is changed to Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, and the authorization of the present
registered agent of this corporation be and the same is
hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall
be and is hereby constituted and appointed the registered
agent of this corporation at the address of its registered
office.
<PAGE>
<PAGE> -56-
IN WITNESS WHEREOF, Newell Co. has caused this statement to be
signed by Richard H. Wolff, its Secretary*, this 25th day of October
1994.
/s/ Richard H. Wolff
-------------------------------
Secretary
_______________________________
(Title)
* Any authorized officer of the Chairman or Vice-Chairman of the
Board of Directors may execute this certificate.
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED MAY 11, 1995
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
I, William T. Alldredge, Vice President-Finance of
Newell Co., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.,
formerly known as New Newell Co.
SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
410,000,000, consisting of 400,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,00,000 shares of Preferred Stock,
consisting of 10,000 shares without par value and
<PAGE>
<PAGE> -58-
9,990,000 shares of the par value of $1.00 per
share.
THIRD: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this
10th day of May, 1995.
NEWELL CO.
/s/ Dale L. Matschullat
-------------------------------
Dale L. Matschullat
Vice President
_______________________________
(Title)
EXHIBIT 3.2
BY-LAWS
OF
NEWELL CO.
(a Delaware corporation)
(as amended February 6, 1995)
ARTICLE I
OFFICES
--------
1.1 Registered Office. The registered office of the Corporation
in the State of Delaware shall be located in the City of Dover and
County of Kent. The Corporation may have such other offices, either
within or without the State of Delaware, as the Board of Directors may
designate or the business of the Corporation may require from time to
time.
1.2 Principal Office in Illinois. The principal office of the
Corporation in the State of Illinois shall be located in the City of
Freeport and County of Stephenson.
ARTICLE II
STOCKHOLDERS
------------
2.1 Annual Meeting. The annual meeting of stockholders shall be
held each year at such time and date as the Board of Directors may
designate prior to the giving of notice of such meeting, but if no
such designation is made, then the annual meeting of stockholders
shall be held on the second Wednesday in May of each year for the
election of directors and for the transaction of such other business
as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the
next succeeding business day.
2.2 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman, by the Board
of Directors or by the President.
2.3 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place
<PAGE>
<PAGE> -60-
of meeting for any annual meeting or for any special meeting called by
the Board of Directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the
principal office of the Corporation in the State of Illinois.
2.4 Notice of Meeting. Written notice stating the place, date
and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the date of the
meeting, or in the case of a merger or consolidation of the
Corporation requiring stockholder approval or a sale, lease or
exchange of substantially all of the Corporation's property and
assets, not less than twenty nor more than sixty days before the date
of meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the Corporation. When
a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days, or unless, after
adjournment, a new record date is fixed for the adjourned meeting, in
either of which cases notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
2.5 Fixing of Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent (to the
extent permitted, if permitted) to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed, the
record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be the close of business on
the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day
on which the meeting is held, and the record date for determining
stockholders for any other purpose shall be the close of business on
the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new
record date for the adjourned meeting.
2.6 Voting Lists. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days
<PAGE>
<PAGE> -61-
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of
shares registered in his name, which list, for a period of ten days
prior to such meeting, shall be kept on file either at a place within
the city where the meeting is to be held and which place shall be
specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held, and shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, at any time during ordinary business hours. Such lists shall
also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list of
stockholders entitled to vote, or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.
2.7 Quorum. The holders of shares of stock of the Corporation
entitled to cast a majority of the total votes that all of the
outstanding shares of stock of the Corporation would be entitled to
cast at the meeting, represented in person or by proxy, shall
constitute a quorum at any meeting of stockholders; provided, that if
less than a majority of the outstanding shares of capital stock are
represented at said meeting, a majority of the shares of capital stock
so represented may adjourn the meeting. If a quorum is present, the
affirmative vote of a majority of the votes entitled to be cast by the
holders of shares of capital stock represented at the meeting shall be
the act of the stockholders, unless a different number of votes is
required by the General Corporation Law, the Certificate of
Incorporation or these By-Laws. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might
have been transacted at the original meeting. Withdrawal of
stockholders from any meeting shall not cause failure of a duly
constituted quorum at that meeting.
2.8 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period.
2.9 Voting of Stock. Each stockholder shall be entitled to such
vote as shall be provided in the Certificate of Incorporation, or,
absent provision therein fixing or denying voting rights, shall be
entitled to one vote per share with respect to each matter submitted
to a vote of stockholders.
2.10 Voting of Stock by Certain Holders. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held.
<PAGE>
<PAGE> -62-
Persons whose stock is pledged shall be entitled to vote, unless in
the transfer by the pledgor on the books of the Corporation he has
expressly empowered the pledgee to vote thereon, in which case only
the pledgee or his proxy may represent such stock and vote thereon.
Stock standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the charter
or by-laws of such corporation may prescribe or, in the absence of
such provision, as the board of directors of such corporation may
determine. Shares of its own capital stock belonging to the
Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes, but shares of its capital stock
held by the Corporation in a fiduciary capacity may be voted by it and
counted for quorum purposes.
2.11 Voting by Ballot. Voting on any question or in any election
may be by voice vote unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
---------
3.1 General Powers. The business of the Corporation shall be
managed by its Board of Directors.
3.2 Number, Tenure and Qualification. The number of directors
of the Corporation shall be ten, and the term of office of each
director shall be as set forth in the Certificate of Incorporation of
the Corporation. Any director may resign at any time upon written
notice to the Corporation. Directors need not be stockholders of the
Corporation.
3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law,
immediately after, and at the same place as, the annual meeting of
stockholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Delaware, for
the holding of additional regular meetings without other notice than
such resolution.
3.4 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Vice Chairman and
Chief Executive Officer or any two directors. The person or persons
authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of Delaware, as the
<PAGE>
<PAGE> -63-
place for holding any special meeting of the Board of Directors called
by them.
3.5 Notice. Notice of any special meeting of directors, unless
waived, shall be given, in accordance with Section 3.6 of the By-Laws,
in person, by mail, by telegram or cable, by telephone, or by any
other means that reasonably may be expected to provide similar notice.
Notice by mail and, except in emergency situations as described
below, notice by any other means, shall be given at least two (2) days
before the meeting. For purposes of dealing with an emergency
situation, as conclusively determined by the director(s) or officer(s)
calling the meeting, notice may be given in person, by telegram or
cable, by telephone, or by any other means that reasonably may be
expected to provide similar notice, not less than two hours prior to
the meeting. If the secretary shall fail or refuse to give such
notice, then the notice may be given by the officer(s) or director(s)
calling the meeting. Any meeting of the Board of Directors shall be a
legal meeting without any notice thereof having been given, if all the
directors shall be present at the meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such
meeting, and no notice of a meeting shall be required to be given to
any director who shall attend such meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
3.6 Notice to Directors. If notice to a director is given by
mail, such notice shall be deemed to have been given when deposited in
the United States mail, postage prepaid, addressed to the director at
his address as it appears on the records of the Corporation. If
notice to a director is given by telegram, cable or other means that
provide written notice, such notice shall be deemed to have been given
when delivered to any authorized transmission company, with charges
prepaid, addressed to the director at his address as it appears on the
records of the Corporation. If notice to a director is given by
telephone, wireless, or other means of voice transmission, such notice
shall be deemed to have been given when such notice has been
transmitted by telephone, wireless or such other means to such number
or call designation as may appear on the records of the Corporation
for such director.
3.7 Quorum. Except as otherwise required by the General Corpo-
ration Law or by the Certificate of Incorporation, a majority of the
number of directors fixed by these By-Laws shall constitute a quorum
for the transaction of business at any meeting of the Board of
Directors, provided that, if less than a majority of such number of
directors are present at said meeting, a majority of the directors
present may adjourn the meeting from time to time without further
notice. Interested directors may be counted in determining the
<PAGE>
<PAGE> -64-
presence of a quorum at a meeting of the Board of Directors or of a
committee thereof.
3.8 Manner of Acting. The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
3.9 Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all the members
of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
3.10 Vacancies. Vacancies on the Board of Directors, newly
created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors
resulting from death, disability, resignation, retirement,
disqualification, removal from office or other cause shall be filled
in accordance with the provisions of the Certificate of Incorporation.
3.11 Compensation. The Board of Directors, by the affirmative
vote of a majority of directors then in office, and irrespective of
any personal interest of any of its members, shall have authority to
establish reasonable compensation of all directors for services to
the Corporation as directors, officers, or otherwise. The directors
may be paid their expenses, if any, of attendance at each meeting of
the Board and at each meeting of any committee of the Board of which
they are members in such manner as the Board of Directors may from
time to time determine.
3.12 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors or at a meeting of any
committee of the Board at which action on any corporate matter is
taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action
with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Corporation within 24 hours after the
adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
3.13 Committees. By resolution passed by a majority of the whole
Board, the Board of Directors may designate one or more committees,
each such committee to consist of two or more directors of the
Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member of any meeting of the committee. Any such
committee, to the extent provided in the resolution or in these By-
<PAGE>
<PAGE> -65-
Laws, shall have any may exercise the powers of the Board of Directors
in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers
which may require it. In the absence or disqualification of any
member of such committee or committees, the member or members thereof
present at the meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of
such absent or disqualified member.
ARTICLE IV
OFFICERS
----------
4.1 Number. The officers of the Corporation shall be a Chairman
of the Board, a Vice Chairman and Chief Executive Officer, a President
and Chief Operating Officer, one or more Group Presidents (the number
thereof to be determined by the Board of Directors), one or more vice
presidents (the number thereof to be determined by the Board of
Directors), Treasurer, a Secretary and such Assistant Treasurers,
Assistant Secretaries or other officers as may be elected by the Board
of Directors.
4.2 Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting
of stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. New offices may be created and filled at any
meeting of the Board of Directors. Each officer shall hold office
until his successor is elected and has qualified or until his earlier
resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Election of an officer shall not
of itself create contract rights, except as may otherwise be provided
by the General Corporation Law, the Certificate of Incorporation of
these By-Laws.
4.3 Removal. Any officer elected by the Board of Directors may
be removed by the Board of Directors whenever in its judgement the
best interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of
the person so removed.
4.4 Vacancies. A vacancy in any office occurring because of
death, resignation, removal or otherwise, may be filled by the Board
of Directors.
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<PAGE> -66-
4.5 The Chairman. The Chairman shall preside at all meetings of
the Board of Directors. In general, he shall perform all duties
incident to the office of Chairman and such other duties as may be
prescribed by the Board of Directors from time to time.
4.6 The Vice Chairman and Chief Executive Officer. The Vice
Chairman and Chief Executive Officer shall be the principal executive
officer of the Corporation. Subject only to the Board of Directors,
he shall be in charge of the business of the Corporation; he shall see
that the resolutions and directions of the Board of Directors are
carried into effect except in those instances in which that
responsibility is specifically assigned to some other person by the
Board of Directors; and, in general, he shall discharge all duties
incident to the office of the chief executive officer of the
Corporation and such other duties as may be prescribed by the Board of
Directors from time to time. In the absence of the Chairman of the
Board, the Vice Chairman and Chief Executive Officer shall preside at
all meetings of the Board of Directors. The Vice Chairman and Chief
Executive Officer shall have authority to vote or to refrain from
voting any and all shares of capital stock of any other corporation
standing in the name of the Corporation, by the execution of a written
proxy, the execution of a written ballot, the execution of a written
consent or otherwise, and, in respect to any meeting of the
stockholders of such other corporation, and, on behalf of the
Corporation, may waive any notice of the calling of any such meeting.
The Vice Chairman and Chief Executive Officer shall perform such other
duties as may be prescribed by the Board of Directors from time to
time.
The Vice Chairman and Chief Executive Officer, or, in his absence, the
President and Chief Operating Officer, the Vice President-Finance, the
Vice President-Controller, the Treasurer or such other person as the
Board of Directors or one of the preceding named officers shall
designate, shall call any meeting of the stockholders of the
Corporation to order and shall act as chairman of such meeting. In
the event that no one of the Vice Chairman and Chief Executive
Officer, the President and Chief Operating Officer, the Vice
President-Finance, the Vice President-Controller, the Treasurer or a
person designated by the Board of Directors or by one of the preceding
named officers, is present, the meeting shall not be called to order
until such time as there shall be present the Vice Chairman and Chief
Executive Officer, the President and Chief Operating Officer, the Vice
President-Finance, the Vice President-Controller, the Treasurer or a
person designated by the Board of Directors or by one of the preceding
named officers. The chairman of any meeting of the stockholders of
this Corporation shall have plenary power to set the agenda, determine
the procedure and rules of order, and make definitive rulings at
meetings of the stockholders. The Secretary or an Assistant Secretary
of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the Secretary or an Assistant
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<PAGE> -67-
Secretary, the chairman of the meeting may appoint any person to act
as secretary of the meeting.
4.7 The President and Chief Operating Officer. The President
and Chief Operating Officer shall be the principal operating officer
of the Corporation and, subject only to the Board of Directors and to
the Vice Chairman and Chief Executive Officer, he shall have general
authority over and general management and control of the property,
business and affairs of the Corporation. In general, he shall
discharge all duties incident to the office of the principal operating
officer of the Corporation and such other duties as may be prescribed
by the Board of Directors and the Vice Chairman and Chief Executive
Officer from time to time. In the absence of the Vice Chairman and
Chief Executive Officer or in the event of his disability, or
inability to act, or to continue to act, the President and Chief
Operating Officer shall perform the duties of the Vice Chairman and
Chief Executive Officer, and when so acting, shall have all of the
powers of and be subject to all of the restrictions upon the office of
Vice Chairman and Chief Executive Officer. Except in those instances
in which the authority to execute is expressly delegated to another
officer or agent of the Corporation or a different mode of execution
is expressly prescribed by the Board of Directors or these By-Laws, he
may execute for the Corporation certificates for its shares (the issue
of which shall have been authorized by the Board of Directors), and
any contracts, deeds, mortgages, bonds, or other instruments that the
Board of Directors has authorized, and he may (without previous
authorization by the Board of Directors) execute such contracts and
other instruments as the conduct of the Corporation's business in its
ordinary course requires, and he may accomplish such execution in each
case either individually or with the Secretary, any Assistant
Secretary, or any other officer thereunto authorized by the Board of
Directors, according to the requirements of the form of the
instrument. The President and Chief Operating Officer shall have
authority to vote or to refrain from voting any and all shares of
capital stock of any other corporation standing in the name of the
Corporation, by the execution of a written proxy, the execution of a
written ballot, the execution of a written consent or otherwise, and,
in respect of any meeting of stockholders of such other corporation,
and, on behalf of the Corporation, may waive any notice of the calling
of any such meeting.
4.8 The Group Presidents. Each of the Group Presidents shall
have general authority over and general management and control of the
property, business and affairs of certain businesses of the
Corporation. Each of the Group Presidents shall report to the
President and Chief Operating Officer or such other officer as may be
determined by the Board of Directors or the President and Chief
Operating Officer and shall have such other duties and
responsibilities as may be assigned to him by the President and Chief
Operating Officer and the Board of Directors from time to time.
<PAGE>
<PAGE> -68-
4.9 The Vice Presidents. Each of the Vice Presidents shall
report to the President and Chief Operating Officer or such other
officer as may be determined by the Board of Directors or the
President and Chief Operating officer. Each Vice President shall have
such duties and responsibilities as from time to time may be assigned
to him by the President and Chief Operating Officer and the Board of
Directors.
4.10 The Treasurer. The Treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the
Corporation; receive and give receipts for monies due and payable to
the Corporation from any source whatsoever, and deposit all such
monies in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected in accordance with the
provisions of Article V of these By-Laws; (ii) in general, perform all
the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the President and Chief
Operating Officer or the Board of Directors. In the absence of the
Treasurer, or in the event of his incapacity or refusal to act, or at
the direction of the Treasurer, any Assistant Treasurer may perform
the duties of the Treasurer.
4.11 The Secretary. The Secretary shall: (i) record all of the
proceedings of the meetings of the stockholders and Board of Directors
in one or more books kept for the purpose; (ii) see that all notices
are duly given in accordance with the provisions of these By-Laws or
as required by law; (iii) be custodian of the corporate records and of
the seal of the Corporation and see that the seal of the Corporation
is affixed to all certificates for shares of capital stock prior to
the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in
accordance with he provisions of these By-Laws; (iv) keep a register
of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (v) have general
charge of the stock transfer books of the Corporation and (vi) in
general, perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the
President and Chief Operating Officer or the Board of Directors. In
the absence of the Secretary, or in the event of his incapacity or
refusal to act, or at the direction of the Secretary, any Assistant
Secretary may perform the duties of Secretary.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
5.1 Contracts. Except as otherwise determined by the Board of
Directors or provided in these By-Laws, all deeds and mortgages made
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<PAGE> -69-
by the Corporation and all other written contracts and agreements to
which the Corporation shall be a party shall be executed in its name
by the Vice Chairman and Chief Executive Officer or the President and
Chief Operating Officer or any Vice President so authorized by the
Board of Directors.
5.2 Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
5.3 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation, shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by resolution of the Board of
Directors.
5.4 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as
the Board of Directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES OF
CAPITAL STOCK AND THEIR TRANSFER
--------------------------------
6.1 Certificates for Shares of Capital Stock. Certificates
representing shares of capital stock of the Corporation shall be in
such form as may be determined by the Board of Directors. Such
certificates shall be signed by the Vice Chairman and Chief Executive
Officer or the President and Chief Operating Officer or any Vice
President and by the Treasurer or the Secretary or an Assistant
Secretary. If any such certificate is countersigned by a transfer
agent other than the Corporation or its employee, or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. All
certificates for share of capital stock shall be consecutively
numbered or otherwise identified. The name of the person to whom the
shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be
<PAGE>
<PAGE> -70-
cancelled and no new certificates shall be issued until the former
certificate for a like number of shares shall have been surrendered
and cancelled and no new certificates shall be issued until the former
certificate for a like number of shares shall have been surrendered
and cancelled, except that in case of a lost, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such terms
and indemnity to the Corporation as the Board of Directors may
prescribe.
6.2 Transfer Agents And Registers. The Board of Directors may
appoint one or more transfer agents or assistant transfer agents and
one or more registrars of transfers, and may require all certificates
for shares of capital stock of the Corporation to bear the signature
of a transfer agent and a registrar of transfers. The Board of
Directors may at any time terminate the appointment of any transfer
agent or any assistant transfer agent or any registrar of transfers.
ARTICLE VII
LIABILITY AND INDEMNIFICATION
-----------------------------
7.1 Limited Liability of Directors.
(a) No person who was or is a director of this Corporation shall
be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for breach of the duty of loyalty to the Corporation
or its stockholders; (ii) for acts of omissions not in good faith or
that involve intentional misconduct or know violation of law; (iii)
under Section 174 of the General Corporation Law; or (iv) for any
transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after the
effective date of the By-Law to further eliminate or limit, or to the
effective date of this By-Law to further eliminate or limit, or to
authorize further elimination or limitation of, the personal liability
of a director to this Corporation or its stockholders shall be
eliminated or limited to the full extent permitted by the General
Corporation Law, as so amended. For Purposes of this By-Law,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any
liability to this Corporation in its capacity as a security holder,
joint venturer, partner, beneficiary, creditor, or investor of or in
any such other corporation, partnership, joint venture, trust or other
enterprise.
<PAGE>
<PAGE> -71-
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this By-Law.
7.2 Litigation Brought by Third Parties. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he is or was or has agreed to become a director or
officer of the Corporation; or is or was serving or has agreed to
serve at the request of the Corporation as a director or officer of
the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of
any action alleged to have been taken or omitted in such capacity,
against costs, charges and other expenses (including attorneys' fees)
("Expenses"), judgements, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding and any appeal thereof if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgement, order, settlement, conviction, or plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this By-Law, "serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise" shall include any service by a director or officer of the
Corporation as a director, officer, employee, director or officer of
the Corporation as a director, officer, employee, agent or fiduciary
of such other corporation, partnership, joint venture trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
7.3 Litigation By or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was or has
agreed to become a director or officer of the Corporation, or is or
<PAGE>
<PAGE> -72-
was serving or has agreed to serve at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity against Expenses
actually and reasonably incurred by him in connection with the
investigation, defense or settlement of such action or suit and any
appeal thereof if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such Expenses as the Court of Chancery of
Delaware or such other court shall deem proper.
7.4 Successful Defense. To the extent that any person referred
to in section 7.2 or 7.3 of these By-Laws has been successful on the
merits or otherwise, including, without limitation, the dismissal of
an action without prejudice, in defense of any action, suit or
proceeding referred to therein or in defense of any claim, issue or
matter therein, he shall be indemnified against Expenses actually and
reasonably incurred by him in connection therewith.
7.5 Determination of Conduct. Any indemnification under section
7.2 or 7.3 of these By-Laws (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard
of conduct set forth in section 7.2 or 7.3. Such determination shall
be made (i) by the Board of Directors by a majority vote of a quorum
(as defined in these By-laws) consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
7.6 Advance Payment. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding
and any appeal upon receipt by the Corporation of an undertaking by or
on behalf of the director or officer to repay such amount if it shall
ultimately be determined that the is not entitled to be indemnified by
the Corporation.
7.7 Determination of Entitlement to Indemnification. The
determination of the entitlement of any person to indemnification
under section 7.2, 7.3 or 7.4 or to advancement of Expenses under
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<PAGE> -73-
section 7.6 of these By-Laws shall be made promptly, and in any event
within 60 days after the Corporation has received a written request
for payment from or on behalf of a director or officer and payment of
amounts due under such sections shall be made immediately after such
determination. If no disposition of such request is made within said
60 days or if payment has not been made within 10 days thereafter, or
if such request is rejected, the right to indemnification or
advancement of Expenses provided by this By-Law shall be enforceable
by or on behalf of the director or officer in any court of competent
jurisdiction. In addition to the other amounts due under this By-Law,
Expenses incurred by or on behalf of a director or officer in
successfully establishing his right to indemnification or advancement
of Expenses, in whole or in part, in any such action (or settlement
thereof) shall be paid by the Corporation.
7.8 By-Laws Not Exclusive: Change in Law. The indemnification
and advancement of Expenses provided by these By-Laws shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of Expenses may be entitled under any
law (common or statutory), the Certificate of Incorporation,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, or while employed by or
acting as a director or officer of the Corporation or as a director or
officer of another corporation, partnership, joint venture, trust or
other enterprise, and shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of these By-Laws, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in section 7.2 or
7.3 of this By-Law to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
7.9 Contract Rights. All rights to indemnification and
advancement of Expenses provided by these By-Laws shall be deemed to
be a contract between the Corporation and each director or officer of
the Corporation who serves, served or has agreed to serve in such
capacity, or at the request of the Corporation as director or officer
of another corporation, partnership, joint venture, trust or other
enterprise, at any time while these By-Laws and the relevant
provisions of the General Corporation Law or other applicable law, if
any, are in effect. Any repeal or modification of these By-Laws, or
any repeal or modification of relevant provisions of the Delaware
General Corporation Law or any other applicable law, shall not in any
way diminish any rights to indemnification of or advancement of
Expenses to such director or officer or the obligations of the
Corporation.
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7.10 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has to
become a director or officer of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of these By-Laws.
7.11 Indemnification of Employees or Agents. The Board of
DirectorS may, by resolution, extend the provisions of these By-Laws
pertaining to indemnification and advancement of Expenses to any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding by
reason of the fact that he is or was or has agreed to become an
employee, agent or fiduciary of the Corporation or is or was serving
or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another
Corporation, partnership, joint venture, trust or other enterprise or
with respect to any employee benefit plan (or its participants or
beneficiaries) of the Corporation or any such other enterprise.
ARTICLE VIII
FISCAL YEAR
------------
8.1 The fiscal year of the Corporation shall end on the thirty-
first day of December in each year.
ARTICLE IX
DIVIDENDS
----------
9.1 The Board of Directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares of
capital stock in the manner and upon the terms and conditions provided
by law and its Certificate of Incorporation.
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ARTICLE X
SEAL
---------
10.1 The Board of Directors shall provide a corporate seal which
shall be in the form of a circle and shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Delaware."
ARTICLE XI
WAIVER OF NOTICE
----------------
11.1 Whenever any notice whatever is required to be given under
any provision of these By-Laws or of the Certificate of Incorporation
or of the General Corporation Law, a written waiver thereof, signed by
the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
ARTICLE XII
AMENDMENTS
------------
12.1 These By-Laws may be altered, amended or repealed and new
By-Laws may be adopted at any meeting of the Board of Directors of the
Corporation by a majority of the whole Board of Directors.
EXHIBIT 10.1
----------------------------------------------
NEWELL CO.
----------------------------------------------
364-DAY CREDIT AGREEMENT
Dated as of June 12, 1995
----------------------------------------------
$200,000,000
----------------------------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
----------------------------------------------
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -77-
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS . . . . . . . . . 80
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . 80
1.02 Accounting Terms and Determinations . . . . . . . . . 93
1.03 Types of Loans . . . . . . . . . . . . . . . . . . . . 94
SECTION 2. COMMITMENTS . . . . . . . . . . . . . . . . . . . . . 94
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . 94
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . 96
2.03 Money Market Loans . . . . . . . . . . . . . . . . . . 100
2.04 Borrowings by Approved Borrowers; Designation of
Certain Approved Borrowers . . . . . . . . . . . . . . 100
2.05 Changes of Commitments . . . . . . . . . . . . . . . . 101
2.06 Fees . . . . . . . . . . . . . . . . . . . . . . . . . 101
2.07 Lending Offices . . . . . . . . . . . . . . . . . . . 102
2.08 Several Obligations; Remedies Independent . . . . . . 102
2.09 Notes . . . . . . . . . . . . . . . . . . . . . . . . 102
2.10 Prepayments . . . . . . . . . . . . . . . . . . . . . 103
2.11 Extension of Commitment Termination Date . . . . . . . 103
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST . . . . . . . . . 104
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . 104
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. . . 105
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . 105
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . 106
4.03 Computations . . . . . . . . . . . . . . . . . . . . . 107
4.04 Non-Receipt of Funds by the Agent . . . . . . . . . . 107
4.05 Set-off; Sharing of Payments . . . . . . . . . . . . . 107
SECTION 5. YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . 108
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . 108
5.02 Limitation on Types of Loans . . . . . . . . . . . . . 110
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . 111
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03 . . 111
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . 111
5.06 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 113
6.01 Initial Credit Extension . . . . . . . . . . . . . . . 113
6.02 Initial Credit Extension to any Approved Borrower . . 114
6.03 Initial and Subsequent Credit Extensions . . . . . . . 115
SECTION 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 115
7.01 Corporate Existence . . . . . . . . . . . . . . . . . 115
7.02 Financial Condition . . . . . . . . . . . . . . . . . 116
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . 116
CREDIT AGREEMENT
----------------
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7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . 116
7.05 Corporate Action . . . . . . . . . . . . . . . . . . . 117
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . 117
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . 117
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 117
7.09 Credit Agreements . . . . . . . . . . . . . . . . . . 117
7.10 Hazardous Materials . . . . . . . . . . . . . . . . . 118
7.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 118
7.12 True and Complete Disclosure. . . . . . . . . . . . . 118
7.13 Subsidiaries. . . . . . . . . . . . . . . . . . . . . 119
7.14 Compliance with Law . . . . . . . . . . . . . . . . . 119
7.15 Corporate Existence . . . . . . . . . . . . . . . . . 119
7.16 No Breach . . . . . . . . . . . . . . . . . . . . . . 119
7.17 Corporate Action . . . . . . . . . . . . . . . . . . . 120
7.18 Approvals . . . . . . . . . . . . . . . . . . . . . . 120
7.19 Taxes on Payments of Approved Borrowers . . . . . . . 120
7.20 Choice of Law . . . . . . . . . . . . . . . . . . . . 121
7.21 Process Agent; Etc. . . . . . . . . . . . . . . . . . 121
7.22 Qualification to Do Business . . . . . . . . . . . . . 121
7.23 Doing Business, Etc. . . . . . . . . . . . . . . . . . 121
7.24 Immunity . . . . . . . . . . . . . . . . . . . . . . . 121
7.25 Stamp Taxes . . . . . . . . . . . . . . . . . . . . . 121
7.26 Legal Form . . . . . . . . . . . . . . . . . . . . . . 122
7.27 No Insolvency . . . . . . . . . . . . . . . . . . . . 122
SECTION 8. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . 122
8.01 Financial Statements . . . . . . . . . . . . . . . . . 122
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . 124
8.03 Corporate Existence, Etc. . . . . . . . . . . . . . . 124
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . 125
8.05 Use of Proceeds . . . . . . . . . . . . . . . . . . . 125
8.06 Indebtedness . . . . . . . . . . . . . . . . . . . . . 125
8.07 Fundamental Changes. . . . . . . . . . . . . . . . . . 125
8.08 Liens . . . . . . . . . . . . . . . . . . . . . . . . 127
8.09 Lines of Businesses . . . . . . . . . . . . . . . . . 128
8.10 Interest Coverage Ratio . . . . . . . . . . . . . . . 128
8.11 Total Indebtedness to Total Capital . . . . . . . . . 128
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 128
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . . . 131
10.01 Appointment, Powers and Immunities . . . . . . . . . 131
10.02 Reliance by Agent . . . . . . . . . . . . . . . . . . 132
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . 132
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . 132
10.05 Indemnification . . . . . . . . . . . . . . . . . . . 132
10.06 Non-Reliance on Agent and Other Banks . . . . . . . . 133
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . 133
10.08 Resignation or Removal of Agent . . . . . . . . . . . 133
SECTION 11. GUARANTEE . . . . . . . . . . . . . . . . . . . . . 134
11.01 Guarantee . . . . . . . . . . . . . . . . . . . . . . 134
11.02 Obligations Unconditional . . . . . . . . . . . . . . 134
11.03 Reinstatement . . . . . . . . . . . . . . . . . . . . 134
11.04 Subrogation . . . . . . . . . . . . . . . . . . . . . 135
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11.05 Remedies . . . . . . . . . . . . . . . . . . . . . . 135
11.06 Continuing Guarantee . . . . . . . . . . . . . . . . 135
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 135
12.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . 135
12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . 135
12.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . 136
12.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . 136
12.05 Assignments and Participations . . . . . . . . . . . 137
12.06 Survival . . . . . . . . . . . . . . . . . . . . . . 138
12.07 Captions . . . . . . . . . . . . . . . . . . . . . . 139
12.08 Counterparts . . . . . . . . . . . . . . . . . . . . 139
12.09 Governing Law; Jurisdiction; Service of Proces Waiver
of Jury Trial; Etc. . . . . . . . . . . . . . . . . . . 139
12.10 Successors and Assigns . . . . . . . . . . . . . . . 140
12.11 Judgment Currency. . . . . . . . . . . . . . . . . . 140
12.12 Cancellation of Existing Credit Agreements . . . . . 140
Schedule I - List of Indebtedness
Schedule II - List of Certain Liens
Schedule III - Subsidiaries
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B-1 - Form of Opinion of Special Illinois Counsel
EXHIBIT B-2 - Form of Opinion of Dale L. Matschullat, Esq.,
general counsel to the Company and its
Subsidiaries
EXHIBIT C - Form of Opinion of Special New York Counsel to the
Banks and the Agent
EXHIBIT D - [Intentionally Omitted]
EXHIBIT E - Form of Money Market Quote Request
EXHIBIT F - Form of Money Market Quote
EXHIBIT G-1 - Form of Designation Letter
EXHIBIT G-2 - Form of Termination Letter
CREDIT AGREEMENT
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364-DAY CREDIT AGREEMENT dated as of June 12, 1995 among:
NEWELL CO., a corporation duly organized and validly existing under
the laws of the State of Delaware (together with its successors, the
"Company"); each of the banks which is a signatory hereto (together
with its successors and permitted assigns, individually, a "Bank" and,
collectively, the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
The Company has requested that the Banks make loans to the
Company and certain designated Subsidiaries of the Company in United
States Dollars and in other currencies in an aggregate principal
amount not exceeding $200,000,000 at any one time outstanding, and the
Banks are prepared to make such loans upon the terms hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this
Section 1 or in other provisions of this Agreement in the singular to
have the same meanings when used in the plural and vice versa):
"Adjusted Operating Income" shall mean, for any period, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) the sum of (i) operating
income for such period plus (ii) net income (or minus in the case of
any net loss) from discontinued operations for such period plus (iii)
interest and dividends received in cash during such period; provided
that there shall be excluded from Adjusted Operating Income any income
of any Person that accrued prior to the date it becomes a Subsidiary
of the Company or is merged into or consolidated with the Company or
any Subsidiary of the Company.
"Agent's Account" shall mean (a) in respect of (i) Dollars,
account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, (ii) Belgian Francs, account
number 550877160077 maintained by Chase with Banque Paribas Belgique
S.A. at World Trade Center Blvd., Emile Jacomain 162 BTE 2, 1210
Brussels, Belgium, (iii) Canadian Dollars, account number 1035908
maintained by Chase with Bank of Montreal at 34 Beaupre Place
Boneventure, Montreal, Quebec, Canada, (iv) French Francs, account
number 001014421280 maintained by Chase with Societe Generale at 29
Boulevard Haussmann, 75009 Paris, France, (v) Deutschemarks, account
number 400887330900 maintained by Chase with Commerzbank, A.G., Neue
Mainzer Strasse 32-36, 60311 Frankfurt am Main 1, Germany, (vi)
Italian Lira, account number 15392/018 maintained by Chase with Cassa
di Risparmio Provincie Lombarde S.p.A. at Via Monte di Pieta, 8-1
20121 Milan, Italy, (vii) Japanese Yen, account number 653-0418102
maintained by Chase with The Bank of Tokyo at Nihombashi, 6-3
Nihombashi Hongokucho, 1-chome, Chuo-ku, Tokyo 103-91, Japan and
(viii) Pounds Sterling, account number 440/00/04403657 maintained by
CREDIT AGREEMENT
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Chase with National Westminster Bank PLC at National Westminster
Tower, 25 Old Broad Street, London EC2, England or (b) any other
account in respect of any Alternative Currency as the Agent shall
designate in a notice to the Company and the Banks.
"Agreed Alternative Currency" shall mean at any time any of
Belgian Francs, Canadian Dollars, French Francs, Deutschemarks,
Italian Lira, Japanese Yen and Pounds Sterling, so long as at such
time, (i) such Currency is dealt with in the London interbank deposit
market, (ii) such Currency is freely transferable and convertible into
Dollars in the London foreign exchange market and (iii) no central
bank or other governmental authorization in the country of issue of
such Currency is required to permit use of such Currency by any Bank
for making any Loan hereunder and/or to permit the relevant Borrower
to borrow and repay the principal thereof and to pay the interest
thereon, unless such authorization has been obtained.
"Alternative Currency" shall mean at any time any Agreed
Alternative Currency and any other currency (other than Dollars) so
long as at such time, (i) such Currency is dealt with in the London
interbank deposit market, (ii) such Currency is freely transferable
and convertible into Dollars in the London foreign exchange market and
(iii) no central bank or other governmental authorization in the
country of issue of such Currency is required to permit use of such
Currency by any Bank for making any Loan hereunder and/or to permit
the relevant Borrower to borrow and repay the principal thereof and to
pay the interest thereon, unless such authorization has been obtained.
"Applicable Lending Office" shall mean (i) for each Bank and
for each Type and Currency of Loan to any U.S. Borrower, the lending
office of such Bank (or of an affiliate of such Bank) designated for
such Type and Currency of Loan on the signature pages hereof or such
other office of such Bank (or of an affiliate of such Bank) as such
Bank may from time to time specify to the Agent and the Company and
(ii) for each Bank and for each Type and Currency of Loan to any
Foreign Borrower, the lending office of such Bank (or of an affiliate
of such Bank) as such Bank shall specify to the Agent and the Company.
"Applicable Margin" shall mean:
(a) with respect to Base Rate Loans, 0%; and
(b) with respect to LIBOR Loans, 1/5 of 1%.
"Approved Borrower" shall mean any Wholly Owned Subsidiary
of the Company as to which a Designation Letter has been delivered to
the Agent and as to which a Termination Letter shall not have been
delivered to the Agent, which Subsidiary has been approved as a
borrower hereunder by all of the Banks, all in accordance with Section
2.04 hereof.
"ASC Receivables Sale Agreement" shall mean the receivables
sale agreement dated December 3, 1991 among the Company as seller and
collection agent, Asset Securitization Cooperative Corporation as
purchaser and Canadian Imperial Bank of Commerce as administrative
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agent, as amended, supplemented and otherwise modified and in effect
from time to time.
"Base Rate" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day.
"Base Rate Loans" shall mean Loans which bear interest based
upon the Base Rate.
"Basel Accord" shall mean the proposals for risk-based
capital framework described by the Basel Committee on Banking
Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, supplemented and otherwise
modified and in effect from time to time, or any replacement thereof.
"Basic Documents" shall mean this Agreement, the Notes, each
Designation Letter and each Termination Letter.
"Belgian Francs" shall mean lawful money of the Kingdom of
Belgium.
"Borrowers" shall mean the Company and each Approved
Borrower.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City and (b)
where such term is used in the definition of "Quarterly Dates" in this
Section 1.01 and if such day relates to the giving of notices or
quotes in connection with a LIBOR Auction or to a borrowing of, a
payment or prepayment of principal of or interest on, or an Interest
Period for, a LIBOR Loan or a LIBOR Market Loan or a notice by the
Company with respect to any such borrowing, payment, prepayment or
Interest Period, also on which dealings in deposits are carried out in
the London interbank market and (c) if such day relates to a borrowing
of, a payment or prepayment of principal of or interest on, or an
Interest Period for, any Loan denominated in an Alternative Currency,
or a notice by the Company with respect to any such borrowing,
payment, prepayment or Interest Period, also on which foreign exchange
trading is carried out in the London interbank market and on which
banks are open in the place of payment in the country in whose
Currency such Loan is denominated.
"Canadian Dollars" shall mean lawful money of Her Majesty in
right of Canada.
"Capital Assets" shall mean all property, plant or equipment
which has been reflected in property, plant or equipment in any
consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP.
"Capital Lease Obligations" shall mean, as to any Person,
the obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or
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personal property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person
under GAAP (including Statement of Financial Accounting Standards No.
13 of the Financial Accounting Standards Board) and, for purposes of
this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans in an aggregate amount at any one
time outstanding equal to the amount set opposite such Bank's name on
the signature pages hereof under the caption "Commitment" (as the same
may be reduced pursuant to Section 2.05 hereof). The original
aggregate principal amount of the Commitments is $200,000,000.
"Commitment Termination Date" shall mean the date 364 days
after the date hereof, as the same may be extended pursuant to Section
2.11 hereof; provided that, if such date is not a Business Day, the
Commitment Termination Date shall be the next preceding Business Day.
"Credit Extension" shall mean the making of any Loan
hereunder.
"Currency" shall mean Dollars or any Alternative Currency.
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designation Letter" shall have the meaning assigned to such
term in Section 2.04(a) hereof.
"Determination Date" shall mean, for any Disposition, the
last day of the fiscal quarter ending on or immediately preceding the
date of such Disposition.
"Deutschemarks" shall mean lawful money of the Federal
Republic of Germany.
"Disposition" shall have the meaning assigned to that term
in Section 8.07 hereof.
"Disposition Period" shall mean, for any Disposition, a
period of twelve months ending on the date of such Disposition.
"Dollar Equivalent" shall mean, with respect to any Loan
denominated in an Alternative Currency, the amount of Dollars that
would be required to purchase the amount of the Alternative Currency
of such Loan on the date such Loan is requested (or, in the case of
Money Market Loans, the date of the related Money Market Quote
CREDIT AGREEMENT
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Request), based upon the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/100 of 1%), as determined by the Agent, of
the spot selling rate at which the Reference Banks offer to sell such
Alternative Currency for Dollars in the London foreign exchange market
at approximately 11:00 a.m. London time for delivery two Business Days
later.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Drawers" shall have the meaning assigned to that term in
the definition herein of the term "Existing Credit Agreements".
"Environmental Affiliate" shall mean, as to any Person, any
other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person may have retained, assumed or
otherwise become liable (contingently or otherwise), whether by
contract, operation of law or otherwise; provided that each Subsidiary
of such Person, and each former Subsidiary or division of such Person
transferred to another Person, shall in any event be an "Environmental
Affiliate" of such Person.
"Environmental Claim" shall mean, with respect to any
Person, any notice, claim, demand or other communication (whether
written or oral) by any other Person alleging or asserting liability
of such Person for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, or release into the environment, of
any hazardous material at any location, whether or not owned by such
Person, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, 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, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as the
Company or is under common control (within the meaning of
Section 414(c) of the Code) with the Company.
CREDIT AGREEMENT
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"Event of Default" shall have the meaning assigned to that
term in Section 9 hereof.
"Existing Credit Agreements" shall mean (a) the Amended and
Restated Credit Agreement dated as of August 13, 1993, amended and
restated as of November 19, 1993, among the Company, Anchor Hocking
Corporation, a Delaware corporation, Newell Operating Company, a
Delaware corporation (the "Drawers"), each of the banks party thereto
and Chase, as agent for the banks thereunder, providing that said
banks extend credit to the Company and the Drawers in an aggregate
principal or face amount not exceeding $300,000,000 at any one time
outstanding, (b) the 364-Day Credit Agreement dated as of November 19,
1993 among the Company, the Drawers, each of the banks party thereto
and Chase, as agent for the banks thereunder, providing that said
banks extend credit to the Company and the Drawers in an aggregate
principal or face amount not exceeding $100,000,000 at any one time
outstanding and (c) the 364-Day Credit Agreement dated as of August
11, 1994 among the Company, the Drawers, each of the banks party
thereto and Chase, as agent for the banks thereunder, providing that
said banks extend credit to the Company and the Drawers in an
aggregate principal or face amount not exceeding $100,000,000 at any
one time outstanding, each as amended, supplemented and otherwise
modified and in effect from time to time.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, 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 Business Day next succeeding such day,
provided that (i) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if such
rate is not so published for any day, the Federal Funds Rate for such
day shall be the average rate charged to Chase on such day on such
transactions as determined by the Agent.
"Final Risk-Based Capital Guidelines" shall mean (i) the
Final Risk-Based Capital Guidelines of the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R.
Part 225, Appendix A) and (ii) the Final Risk-Based Capital Guidelines
of the Office of the Comptroller of the Currency, and any successor or
supplemental regulations (12 C.F.R. Part 3, Appendix A), and any
successor regulations, in each case, as amended, supplemented and
otherwise modified and in effect from time to time.
"Foreign Borrower" shall mean any Approved Borrower that is
not a U.S. Borrower.
"Foreign Currency Equivalent" shall mean, with respect to
any amount in Dollars, the amount of any Alternative Currency that
could be purchased with such amount of Dollars using the foreign
exchange rate(s) specified in the definition of the term "Dollar
Equivalent", as determined by the Agent.
CREDIT AGREEMENT
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"French Francs" shall mean lawful money of the Republic of
France.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the
last sentence of Section 1.02(a) hereof, are to be used in making the
calculations for purposes of determining compliance with the
provisions of this Agreement.
"Guarantee" of any Person shall mean any guarantee,
endorsement, contingent agreement to purchase or to furnish funds for
the payment or maintenance of, or any other contingent liability on or
with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any other Person (including, without
limitation, the liability of such Person in respect of the
Indebtedness of any partnership of which such Person is a general
partner), or the guarantee by such Person of the payment of dividends
or other distributions upon the stock of any other Person, or the
agreement by such Person to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily
for the purpose of enabling any other Person to make payment of its
obligations or to assure a creditor against loss, and the verb
"Guarantee" shall have a correlative meaning, provided that the term
"Guarantee" shall not include endorsements for collection or deposits
in the ordinary course of business.
"Indebtedness" shall mean, as to any Person at any date
(without duplication): (i) indebtedness created, issued, incurred or
assumed by such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments; (ii) all obligations of such
Person to pay the deferred purchase price of property or services,
excluding, however, trade accounts payable (other than for borrowed
money) arising in, and accrued expenses incurred in, the ordinary
course of business of such Person so long as such trade accounts
payable are paid within 120 days of the date the respective goods are
delivered or the services are rendered; (iii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; (iv) all Indebtedness of
others Guaranteed by such Person; (v) all Capital Lease Obligations;
(vi) the Investment Amount (if any); (vii) reimbursement obligations
of such Person (whether contingent or otherwise) in respect of bankers
acceptances, surety or other bonds and similar instruments (other than
commercial, standby or performance letters of credit); and
(viii) unpaid reimbursement obligations of such Person (other than
contingent obligations) in respect of commercial, standby or
performance letters of credit.
"Indenture" shall mean the Indenture dated as of April 15,
1992 between the Company and Chase, as trustee, as amended and in
effect from time to time.
"Interest Coverage Ratio" shall mean, for any period, the
ratio of (i) the Adjusted Operating Income for such period to
(ii) Interest Expense for such period.
CREDIT AGREEMENT
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"Interest Expense" shall mean, for any period, the sum, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of (a) all interest paid
during such period in cash, or accrued during such period as an
expense, in respect of Indebtedness (including, without limitation,
imputed interest on Capital Lease Obligations and amortization of
original issue discount) plus (b) all fees or commissions and net
losses payable during such period in respect of any bankers
acceptances, surety bonds, letters of credit or similar instruments
plus (c) the aggregate amount of fees and expenses paid by the Company
during such period pursuant to Article V of the ASC Receivables Sale
Agreement (other than legal fees and expenses paid pursuant to Section
5.2 thereof and the amount of any Collection Agent Fee (as such term
is defined therein) retained by the Company in its capacity as
Collection Agent (as such term is defined therein) pursuant to Section
5.1.4 thereof) plus (d) comparable fees and expenses paid by the
Company during such period under any other Receivables Sales
Agreement.
"Interest Period" shall mean:
(a) with respect to any LIBOR Loan, each period commencing on
the date such LIBOR Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company (on its own behalf and on behalf of any
other Borrower) may select as provided in Section 2.02 hereof, except
that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month.
(b) With respect to any Base Rate Loan, the period commencing on
the date such Base Rate Loan is made and ending on the date 30 days
thereafter.
(c) With respect to any Set Rate Loan, the period commencing on
the date such Set Rate Loan is made and ending on any Business Day up
to 180 days thereafter, as the Company may select as provided in
Section 2.03(b) hereof.
(d) With respect to any LIBOR Market Loan, the period commencing
on the date such LIBOR Market Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company may select as provided in
Section 2.03(b) hereof, except that each Interest Period which
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise commence before and end after the Commitment Termination
Date, such Interest Period shall not be available hereunder; (ii) each
Interest Period which would otherwise end on a day which is not a
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Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for any LIBO Rate Loans, if such next
succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (iii) notwithstanding
clause (i) above, no Interest Period for any LIBO Rate Loans shall
have a duration of less than one month and, if the Interest Period for
any such Loans would otherwise be a shorter period, such Loans shall
not be available hereunder.
"Investment Amount" shall mean the amount described in (i)
clause (1) of the definition of "Investment" in the ASC Receivables
Sale Agreement or (ii) any comparable provision in any other
Receivables Sales Agreement.
"Italian Lira" shall mean lawful money of the Republic of
Italy.
"Japanese Yen" shall mean lawful money of Japan.
"Jurisdiction" shall mean, with respect to any Borrower, the
country or countries (including any political subdivision or taxing
authority thereof or therein) under whose laws such Borrower is
organized or where such Borrower is domiciled, resident or licensed or
otherwise qualified to do business or where any significant part of
the Property of such Borrower is located.
"LIBO Base Rate" shall mean, with respect to any LIBO Rate
Loan in any Currency:
(a) the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) appearing on the Screen for such Currency
as the London Interbank Offered Rate for deposits in such
Currency at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the
first day of the Interest Period for such Loan; or
(b) if such rate does not appear on the Screen (or, if the
Screen shall cease to be publicly available or if the information
contained on the Screen, in the Agent's reasonable judgment,
shall cease accurately to reflect such London Interbank Offered
Rate, as reported by any publicly available source of similar
market data selected by the Agent that, in the Agent's reasonable
judgment, accurately reflects such London Interbank Offered
Rate), the LIBO Base Rate shall mean, with respect to any LIBO
Rate Loan for any Interest Period, the arithmetic mean, as
determined by the Agent, of the rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) quoted by each Reference
Bank at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the first
day of the Interest Period for such Loan for the offering by such
Reference Bank to leading banks in the London interbank market of
deposits in such Currency having a term comparable to such
Interest Period and in an amount comparable to the principal
amount of the LIBO Rate Loan to be made by such Reference Bank
(or its Applicable Lending Office, as the case may be) for such
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Interest Period; provided that (i) if any Reference Bank is not
participating in any LIBOR Loan, the LIBO Base Rate for such Loan
shall be determined by reference to the amount of the Loan which
such Reference Bank would have made had it been participating in
such Loans, (ii) in determining the LIBO Base Rate with respect
to any LIBOR Market Loan, each Reference Bank shall be deemed to
have made a LIBOR Market Loan in an amount equal to $1,000,000,
(iii) each Reference Bank agrees to use its best efforts to
furnish timely information to the Agent for purposes of
determining the LIBO Base Rate and (iv) if any Reference Bank
does not furnish such timely information for determination of the
LIBO Base Rate, the Agent shall determine such interest rate on
the basis of timely information furnished by the remaining
Reference Banks.
"LIBO Rate" shall mean, for any LIBO Rate Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to the LIBO Base Rate for the
Interest Period for such Loan divided by 1 minus the Reserve
Requirement for such Loan for such Interest Period.
"LIBO Rate Loans" shall mean LIBOR Loans and LIBOR Market
Loans.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Margins based on the LIBO Rate
pursuant to Section 2.03 hereof.
"LIBOR Loans" shall mean Syndicated Loans interest rates on
which are determined on the basis of LIBO Rates.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates
pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Company or any 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 title retention agreement relating to such asset.
"Loans" shall mean Money Market Loans and Syndicated Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of
(i) the aggregate amount of the Commitments and (ii) if the
Commitments shall have been terminated, the aggregate outstanding
principal amount of all Loans.
"Material Adverse Effect" shall mean a material adverse
effect on (i) the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole), (ii) the ability of the Company or any Approved Borrower that
is a Significant Subsidiary to perform its obligations under any of
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the Basic Documents to which it is a party or (iii) the validity or
enforceability of any of the Basic Documents.
"Money Market Borrowing" shall have the meaning assigned to
that term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to
that term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.03 hereof.
"Money Market Margin" shall have the meaning assigned to
that term in Section 2.03(c)(ii)(C) hereof.
"Money Market Quote" shall have the meaning assigned to that
term in Section 2.03(c) hereof.
"Money Market Quote Request" shall have the meaning assigned
to that term in Section 2.03(b) hereof.
"Money Market Rate" shall have the meaning assigned to that
term in Section 2.03(c)(ii)(D) hereof.
"Multiemployer Plan" shall mean a Plan defined as such in
Section 3(37) of ERISA to which contributions are being made, or have
been made since January 1, 1980 by the Company or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Net Worth" shall mean, at any time, the consolidated
stockholders' equity of the Company and its Subsidiaries determined on
a consolidated basis without duplication in accordance with GAAP.
"Non-Strategic Property" shall mean Property acquired as
part of the acquisition of a business made after the date hereof that
is designated by resolution of the Board of Directors of the Company
adopted no later than six months after such acquisition as non-
strategic Property.
"Notes" shall mean the promissory notes provided for by
Section 2.09 hereof.
"Obligor" shall mean the Company, in its capacity as a
Borrower hereunder and in its capacity as a guarantor of Loans made to
any Approved Borrower under Section 11 hereof, and each Approved
Borrower.
"Other Agreement" shall mean the Five-Year Credit Agreement
dated as of even date herewith among the Company, the banks party
thereto and Chase as agent for such banks, as the same may be modified
and supplemented and in effect from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all its functions under ERISA.
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"Person" shall mean an individual, a corporation, a company,
a voluntary association, a partnership, a trust, an unincorporated
organization or a government or any agency, instrumentality or
political subdivision thereof.
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and
which is covered by Title IV of ERISA, other than a Multiemployer
Plan.
"Post-Default Rate" shall mean, in respect of any principal
of any Loan or any other amount payable by any Borrower under this
Agreement or any Note which is not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum during the
period commencing on the due date until such amount is paid in full
equal to the sum of 2% plus the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans (provided that, if
such amount in default is principal of a LIBO Rate Loan or a Set Rate
Loan and the due date is a day other than the last day of the Interest
Period therefor, the "Post-Default Rate" for such principal shall be,
for the period commencing on the due date and ending on the last day
of the Interest Period therefor, 2% above the interest rate for such
Loan as provided in Section 3.02 hereof and, thereafter, the rate
provided for above in this definition).
"Pounds Sterling" shall mean lawful money of England.
"Prime Rate" shall mean the rate of interest from time to
time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of Chase
presently located at 1 Chase Manhattan Plaza, New York, New York
10081.
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible (including, without limitation, shares
of capital stock).
"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December, the first of which shall be the
first such day after the date of this Agreement.
"Receivables Sale Agreement" shall mean (i) the
ASC Receivables Sale Agreement and (ii) any other comparable agreement
providing for the periodic sales of accounts receivable.
"Reference Banks" shall mean Chase, Morgan Guaranty Trust
Company of New York and Royal Bank of Canada.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the
same may be amended or supplemented from time to time.
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"Regulatory Change" shall mean, with respect to any Bank,
any change after the date of this Agreement in United States Federal,
state or foreign law or regulations (including Regulation D) or the
adoption or making after such date of any interpretations, directives
or requests applying to a class of banks including such Bank of or
under any United States Federal, state or foreign law or regulations
(whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" shall mean, for any Interest Period
for any LIBO Rate Loan, the effective maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation
D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO
Base Rate is to be determined or (ii) any category of extensions of
credit or other assets which includes LIBO Rate Loans.
"Screen" shall mean, with respect to any Currency, the
relevant Telerate Page on which appears the London Interbank Offered
Rate for deposits in such Currency; provided that, if there is no such
Telerate Page, the relevant Reuters Screen Page will be substituted.
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Rates pursuant to Section 2.03
hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Money Market Rates
pursuant to a Set Rate Auction.
"Significant Subsidiary" shall mean, at any time, any
Subsidiary of the Company if the revenues of such Subsidiary and its
Subsidiaries for the four consecutive fiscal quarters of such
Subsidiary most recently ended (determined on a consolidated basis
without duplication in accordance with GAAP and whether or not such
Person was a Subsidiary of the Company during all or any part of the
fiscal period of the Company referred to below) exceed an amount equal
to 7-1/2% of the revenues of the Company and its Subsidiaries for the
four consecutive fiscal quarters of the Company most recently ended
(determined on a consolidated basis without duplication in accordance
with GAAP and including such Subsidiary and its Subsidiaries on a pro
forma basis of such Subsidiary was not a Subsidiary of the Company).
"Subsidiary" of any Person shall mean any corporation of
which at least a majority of the outstanding shares of stock having by
the terms thereof ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation
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shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person and/or one or more of the Subsidiaries of
such Person. "Wholly-Owned Subsidiary" shall mean any such
corporation of which all such shares, other than directors' qualifying
shares or shares held by nominees to satisfy any requirement as to
minimum number of shareholders, are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof.
"Syndicated Notes" shall mean the promissory notes provided
for by Section 2.09(a) hereof.
"Taxes" shall have the meaning assigned to such term in
Section 5.06(a) hereof.
"Termination Letter" shall have the meaning assigned to such
term in Section 2.04(a) hereof.
"Total Capital" shall mean the sum of (i) Net Worth plus
(ii) Total Indebtedness.
"Total Consolidated Assets" shall mean, as at any time, the
total of all the assets appearing on the consolidated balance sheet of
the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles applicable to the type of
business in which the Company and such Subsidiaries are engaged, and
may be determined as of a date, selected by the Company, not more than
sixty days prior to the happening of the event for which such
determination is being made.
"Total Indebtedness" shall mean, as at any time, the total
Indebtedness of the Company and its Subsidiaries determined on a
consolidated basis without duplication.
"Type" shall have the meaning assigned to such term in
Section 1.03 hereof.
"U.S. Borrower" shall mean the Company and any Approved
Borrower that is incorporated under the laws of the United States of
America or any State thereof or the District of Columbia.
"Wholly-Owned Subsidiary" shall have the meaning assigned to
such term in the definition of the term "Subsidiary".
1.02 Accounting Terms and Determinations.
(a) All accounting terms used herein shall be interpreted,
and, unless otherwise disclosed to the Banks in writing at the time of
delivery thereof in the manner described in subsection (b) below, all
financial statements and certificates and reports as to financial
matters required to be delivered to the Banks hereunder shall be
prepared, in accordance with generally accepted accounting principles
applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Banks hereunder after
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the date hereof (or, until such financial statements are furnished,
consistent with those used in the preparation of the financial
statements referred to in Section 7.02(a) hereof). All calculations
made for the purposes of determining compliance with the terms of
Sections 8.07(a)(vii), 8.10 and 8.11 hereof shall, except as otherwise
expressly provided herein, be made by application of generally
accepted accounting principles applied on a basis consistent with
those used in the preparation of the annual or quarterly financial
statements furnished to the Banks pursuant to Section 8.01 hereof (or,
until such financial statements are furnished, consistent with those
used in the preparation of the financial statements referred to in
Section 7.02(a) hereof) unless (i) the Company shall have objected to
determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements
delivered under Section 8.01 hereof, shall mean the financial
statements referred to in Section 7.02(a) hereof).
(b) The Company shall deliver to the Banks at the same time
as the delivery of any annual or quarterly financial statement under
Section 8.01 hereof (i) a description in reasonable detail of any
material variation between the application of accounting principles
employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference
between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the
Company shall not change the last day of its fiscal year from
December 31, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30,
respectively.
1.03 Types of Loans. Loans hereunder are distinguished by
"Type" and by "Currency". The "Type" of a Loan refers to whether such
Loan is a Base Rate Loan, a LIBOR Loan, a Set Rate Loan or a LIBOR
Market Loan, each of which constitutes a Type. Loans may be
identified by both Type and Currency.
SECTION 2. COMMITMENTS.
2.01 Syndicated Loans. Each Bank severally agrees, on the
terms of this Agreement, to make loans to any Borrower in Dollars or
in any of the Agreed Alternative Currencies during the period from and
including the date hereof to and including the Commitment Termination
Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of such Bank's Commitment as then in
effect. Subject to the terms of this Agreement, during such period
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the Company may borrow, repay and reborrow the amount of the
Commitments by means of Base Rate Loans in Dollars and LIBOR Loans in
Dollars or any Agreed Alternative Currency; provided that the
aggregate outstanding principal amount of all Syndicated Loans at any
one time shall not exceed the aggregate amount of the Commitments at
such time; and provided, further, that there may be no more than
twenty (20) different Interest Periods for both Syndicated Loans and
Money Market Loans outstanding at the same time (for which purpose
Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous). For
purposes of determining whether the amount of any borrowing under this
Section 2.01 would, together with all other outstanding Syndicated
Loans, exceed the Commitments and, for purposes of determining the
unused portion of the Commitments, the amount of each Syndicated Loan
denominated in an Agreed Alternative Currency shall be deemed to be
the Dollar Equivalent of the amount in the Agreed Alternative Currency
of such Loan.
2.02 Borrowings of Syndicated Loans. The Company (on its
own behalf and on behalf of any other Borrower) shall give the Agent
(which shall promptly notify the Banks) notice of each borrowing
hereunder of Syndicated Loans, which notice shall be irrevocable and
effective only upon receipt by the Agent, shall specify with respect
to the Syndicated Loans to be borrowed (i) the Agreed Alternative
Currency or Currencies in which such Loans are to be made and the
account of the relevant Borrower maintained with a commercial bank in
the country in whose Currency such Loans are denominated at which such
Loans are to be made available to such Borrower, (ii) the aggregate
amount in Dollars or, in the case of Loans in Agreed Alternative
Currencies, in such Agreed Alternative Currency, which shall be at
least $1,000,000 in the case of Base Rate Loans and $5,000,000 in the
case of LIBOR Loans (or in either case an integral multiple of
$1,000,000 in excess thereof) or, in the case of LIBOR Loans in an
Agreed Alternative Currency, the Foreign Currency Equivalent thereof
(rounded to the nearest 1000 units of such Alternative Currency),
(iii) the Type and date (which shall be a Business Day) and (iv) (in
the case of LIBOR Loans) the duration of the Interest Period therefor,
and each such notice shall be given not later than 11:00 a.m. New York
time on the day which is not less than the number of Business Days
prior to the date of such borrowing specified below opposite the type
of such Loans:
Type Number of Business Days
---- -----------------------
Base Rate Loans 0
LIBOR Loans in Dollars 3
LIBOR Loans in Alternative Currencies 5
Not later than 2:00 p.m. New York time (in the case of Loans
denominated in Dollars) or 11:00 a.m. local time in the location of
the Agent's Account (in the case of Loans denominated in an Agreed
Alternative Currency) on the date specified for each borrowing of
Syndicated Loans hereunder, each Bank shall, subject to Section
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4.01(a) hereof, make available the amount of the Syndicated Loan or
Loans to be made by it on such date to the Agent, at the Agent's
Account for the Currency of such Loans in immediately available funds,
for account of the relevant Borrower. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement,
promptly be made available to the relevant Borrower by depositing the
same, in immediately available funds, in an account of the relevant
Borrower designated by the Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the
Company (on its own behalf and on behalf of any other Borrower) may,
as set forth in this Section 2.03, request the Banks to make offers to
make LIBOR Market Loans to such Borrower in Dollars or in any
Alternative Currency or Set Rate Loans in Dollars. The Banks may, but
shall have no obligation to, make such offers and such Borrower may,
but shall have no obligation to, accept any such offers in the manner
set forth in this Section 2.03. Money Market Loans may be
LIBOR Market Loans or Set Rate Loans (each a "Type" of Money Market
Loan), provided that there may be no more than twenty (20) different
Interest Periods for both Syndicated Loans and Money Market Loans
outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous).
(b) When any Borrower wishes to request offers to make
Money Market Loans, the Company (on its own behalf and on behalf of
any other Borrower) shall give the Agent (which shall promptly notify
the Banks) notice in the form of Exhibit E hereto (a "Money Market
Quote Request") so as to be received no later than 11:00 a.m. New York
time on (x) the fifth Business Day prior to the date of borrowing
proposed therein in the case of a LIBOR Auction or (y) the Business
Day next preceding the date of borrowing proposed therein, in the case
of a Set Rate Auction, specifying:
(i) the name of the Borrower, the Currency of such
borrowing and the proposed date of such borrowing (a "Money
Market Borrowing"), which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $5,000,000 (or an integral multiple of
$1,000,000 in excess thereof) or, in the case of Money Market
Loans in an Alternative Currency, the Foreign Currency Equivalent
thereof (rounded to the nearest 1,000 units of such Alternative
Currency);
(iii) the duration of the Interest Period applicable thereto;
and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Rate.
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The Company (on its own behalf and on behalf of any other
Borrower) may request offers to make Money Market Loans for up to
fifteen (15) different Interest Periods in a single Money Market Quote
Request; provided that the request for each separate Interest Period
shall be deemed to be a separate Money Market Quote Request for a
separate Money Market Borrowing. Except as otherwise provided in the
preceding sentence, no Money Market Quote Request shall be given
within five Business Days of any other Money Market Quote Request.
(c) (i) Any Bank may, by notice to the Agent in the form
of Exhibit F hereto (a "Money Market Quote"), submit an offer to make
a Money Market Loan in response to any Money Market Quote Request;
provided that, if the request under Section 2.03(b) hereof specified
more than one Interest Period, such Bank may make a single submission
containing a separate offer for each such Interest Period and each
such separate offer shall be deemed to be a separate Money Market
Quote. Each Money Market Quote must be submitted to the Agent not
later than (x) 2:00 p.m. (or, in the case of Money Market Loans in an
Alternative Currency, 11:00 a.m.) New York time on the fourth Business
Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 11:00 a.m. New York time on the proposed date of
borrowing, in the case of a Set Rate Auction; provided that any Money
Market Quote submitted by Chase (or its Applicable Lending Office) may
be submitted, and may only be submitted, if Chase (or such Applicable
Lending Office) notifies the Company of the terms of the offer
contained therein not later than (x) 1:00 p.m. (or, in the case of
Money Market Loans in an Alternative Currency, 10:00 a.m.) New York
time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 10:45 a.m. New York
time on the proposed date of borrowing, in the case of a Set Rate
Auction. Subject to Sections 5.03, 6.03 and 9 hereof, any Money
Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall specify:
(A) the name of the Borrower, the Currency of such
borrowing, the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(x) may be greater than or less than the Commitment of the
quoting Bank, (y) must be in an integral multiple of
$1,000,000 or, in the case of a Money Market Loan in an
Alternative Currency, the Foreign Currency Equivalent
thereof (rounded to the nearest 1,000 units of such
Alternative Currency), and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were
requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed
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as a percentage (rounded to the nearest 1/10,000th of 1%) to
be added to or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000th of 1%)
(the "Money Market Rate") offered for each such Money Market
Loan; and
(E) the identity of the quoting Bank.
No Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Money Market Quote Request and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Company
of all (or some specified minimum) of the principal amount of the
Money Market Loan for which such Money Market Quote is being made;
provided that the submission of any Bank containing more than one
Money Market Quote may be conditioned on the Company not accepting
offers contained in such submission that would result in such Bank
making Money Market Loans pursuant thereto in excess of a specified
aggregate amount (the "Money Market Loan Limit").
(d) The Agent shall (x) in the case of a Set Rate Auction,
as promptly as practicable after the Money Market Quote is submitted
(but in any event not later than 11:15 a.m. New York time) or (y) in
the case of a LIBOR Auction, by 4:00 p.m. (or, in the case of Money
Market Loans in an Alternative Currency, noon) New York time on the
day a Money Market Quote is submitted, notify the Company (which will
promptly notify the relevant Borrower if it is not the Company) of the
terms (i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the
same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Company shall
specify (A) the aggregate principal amount of the Money Market
Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Margins or Money Market Rates, as
the case may be, so offered by each Bank (identifying the Bank that
made each Money Market Quote).
(e) Not later than (x) 11:00 a.m. New York time on the
third Business Day (or, in the case of Money Market Loans in an
Alternative Currency, 2:00 p.m. New York time on the fourth Business
Day) prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) noon New York time on the proposed date of borrowing,
in the case of a Set Rate Auction, the Company shall notify the Agent
of its or the relevant Borrower's if the Borrower is not the Company
acceptance or nonacceptance of the offers so notified to the Company
pursuant to Section 2.03(d) hereof (which notice shall specify the
aggregate principal amount of offers from each Bank for each Interest
Period that are accepted; and the failure of the Company to give such
notice by such time shall constitute non-acceptance) and the Agent
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shall promptly notify each affected Bank of the acceptance or non-
acceptance of its offers. The notice by the Agent shall also specify
the aggregate principal amount of offers for each Interest Period that
were accepted. The Company (on its own behalf and on behalf of any
other Borrower) may accept any Money Market Quote in whole or in part
(provided that any Money Market Quote accepted in part from any Bank
shall be in an integral multiple of $1,000,000 or, in the case of a
Money Market Loan in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1,000 units of such
Alternative Currency)); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $5,000,000 (or an integral multiple
of $1,000,000 in excess thereof) or, in the case of a borrowing
of Money Market Loans in an Alternative Currency, the Foreign
Currency Equivalent thereof (rounded to the nearest 1,000 units
of such Alternative Currency);
(iii) acceptance of offers may, subject to clause (v) below,
only be made in ascending order of Money Market Margins or Money
Market Rates, as the case may be; provided that the Company need
not accept on behalf of any Approved Borrower the offer of any
Bank if payment of the interest on the relevant Money Market Loan
would subject such Approved Borrower to the requirement of paying
any additional amounts under Section 5.06(a) hereof or if such
interest payment would be subject to greater restrictions on
deductibility for income tax purposes than the restriction
applicable to interest payments made to other Banks whose offers
are accepted;
(iv) the Company (on its own behalf and on behalf of any
other Borrower) may not accept any offer where the Agent has
advised the Company that such offer fails to comply with
Section 2.03(c)(ii) hereof or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.03(a) hereof); and
(v) the aggregate principal amount of each Money Market
Borrowing from any Bank may not exceed any applicable Money
Market Loan Limit of such Bank.
If offers are made by two or more Banks with the same Money Market
Margins or Money Market Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall
be allocated by the Company among such Banks as nearly as possible (in
an integral multiple of $1,000,000 or, in the case of a Borrowing of
Money Market Loans in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1000 units of such
Alternative Currency)) in proportion to the aggregate principal amount
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of such offers. Determinations by the Company of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted in accordance with the terms and conditions of this
Section 2.03 shall, not later than 2:00 p.m. New York time (in the
case of Loans denominated in Dollars) or 11:00 a.m. local time in the
location of the Agent's Account (in the case of Loans denominated in
an Alternative Currency) on the date specified for the making of such
Loan, make the amount of such Loan available to the Agent at the
Agent's Account for the Currency of such Loan in immediately available
funds. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, promptly be made available to
the relevant Borrower on such date by depositing the same, in
immediately available funds, in an account of the relevant Borrower
designated by the Company.
(g) The amount of any Money Market Loan made by any Bank
shall not constitute a utilization of such Bank's Commitment.
2.04 Borrowings by Approved Borrowers; Designation of
Certain Approved Borrowers.
(a) The Company may, at any time or from time to time,
designate one or more Wholly Owned Subsidiaries as Borrowers hereunder
by furnishing to the Agent a letter (a "Designation Letter") in
duplicate, substantially in the form of Exhibit G-1 hereto, duly
completed and executed by the Company and such Subsidiary. Any such
designation may restrict such Wholly Owned Subsidiary to Money Market
Loans and exclude the applicability of Section 5.06(a) hereof to such
Wholly Owned Subsidiary, all as set forth in the relevant Designation
Letter. Upon approval by all of the Banks (which approval shall not
be unreasonably withheld) of such Subsidiary as an Approved Borrower,
which approval shall be evidenced by the Agent signing and returning
to the Company a copy of such Designation Letter, such Subsidiary
shall be an Approved Borrower. There may be no more than ten Approved
Borrowers at any one time. So long as all principal and interest on
all Loans of any Approved Borrower hereunder have been paid in full,
the Company may terminate its status as an Approved Borrower hereunder
by furnishing to the Agent a letter (a "Termination Letter"),
substantially in the form of
Exhibit G-2 hereto, duly completed and executed by the Company and
such Approved Borrower. Any Termination Letter furnished in
accordance with this Section 2.04 shall be effective upon receipt by
the Agent (which shall promptly notify the Banks), whereupon the Banks
shall promptly deliver to the Company (through the Agent) the Notes of
such former Approved Borrower. Notwithstanding the foregoing, the
delivery of a Termination Letter with respect to any Approved Borrower
shall not terminate any obligation of such Approved Borrower
theretofore incurred (including, without limitation, obligations under
Sections 5.01, 5.05 and 5.06) or the obligations of the Company under
Section 11 hereof with respect thereto.
(b) The Agent is hereby authorized by the Banks (i) to
approve (on behalf of all of the Banks) as an Approved Borrower, and
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(ii) to sign and return to the Company a Designation Letter from the
Company with respect to, each of the following Subsidiaries of the
Company:
(1) Newell Operating Company;
(2) Newell Investments, Inc.;
(3) Newell Consumer Products GmbH (formerly Corning
Consumer GmbH) ("Newell Germany");
(4) Newell Holdings U.K. Limited ("Newell UK");
(5) Newell Limited (formerly Corning Consumer Limited)
("Newell Limited");
(6) Newell Holdings France S.A.S. ("Newell France");
(7) Newell S.A. (formerly Corning Consumer S.A.);
(8) Anchor Hocking Corporation; and
(9) Newell Industries Canada, Inc. ("Newell Canada");
provided that, the Designation Letters with respect to Newell Germany,
Newell UK, Newell Limited, Newell France, Newell S.A. and Newell
Canada only must restrict such Approved Borrowers to Money Market
Loans and may exclude the applicability of Section 5.06(a) hereof.
2.05 Changes of Commitments.
(a) Unless theretofore reduced to such amount pursuant to
paragraphs (b) and (c) below, the aggregate amount of the Commitments
shall automatically be reduced to zero on the Commitment Termination
Date.
(b) The Company shall have the right to terminate or reduce
permanently the amount of the Commitments at any time or from time to
time upon not less than three Business Days' prior notice to the Agent
(which shall promptly notify the Banks) of each such termination or
reduction, which notice shall specify the effective date thereof and
the amount of any such reduction (which shall be in an integral
multiple of $5,000,000) and shall be irrevocable and effective only
upon receipt by the Agent; provided that the Company may not at any
time (i) terminate the Commitments in whole if Syndicated Loans are
then outstanding or (ii) reduce the aggregate amount of the
Commitments below the aggregate outstanding principal amount of the
Syndicated Loans.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.06 Fees. The Company shall pay to the Agent for account
of each Bank a facility fee on the daily average amount of such Bank's
Commitment (whether or not utilized), for the period from and
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including the date hereof to but not including the date such
Commitment is terminated, at a rate per annum equal to 8/100 of 1%.
Accrued facility fee shall be payable on each Quarterly Date in
arrears and on the earlier of the date the Commitments are terminated
and the Commitment Termination Date.
2.07 Lending Offices. The Loans of each Type and Currency
made by each Bank shall be made and maintained at such Bank's
Applicable Lending Office for Loans of such Type and Currency.
2.08 Several Obligations; Remedies Independent. The
failure of any Bank to make any Syndicated Loan to be made by it on
the date specified therefor shall not relieve any other Bank of its
obligation to make its Syndicated Loan on such date, and no Bank shall
be responsible for the failure of any other Bank to make a Loan to be
made by such other Bank. The amounts payable by any Borrower at any
time hereunder and under its Notes to each Bank shall be a separate
and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it
shall not be necessary for any other Bank or the Agent to consent to,
or be joined as an additional party in, any proceedings for such
purposes.
2.09 Notes.
(a) The Syndicated Loans made by any Bank to any Borrower
shall be evidenced by a single promissory note of the relevant
Borrower in substantially the form of Exhibit A-1 hereto, dated the
date of its delivery to the Agent, payable to such Bank in a principal
amount equal to the amount of its Commitment as originally in effect
on the date hereof and otherwise duly completed. The date, amount,
Type, Currency, interest rate and maturity date of each Syndicated
Loan made by each Bank, and all payments made on account of the
principal thereof, shall be recorded by such Bank on its books and,
prior to any transfer of such Note held by it, endorsed by such Bank
on the schedule attached to such Note or any continuation thereof;
provided that the failure of such Bank to make any such recordation or
endorsement shall not affect the obligations of such Borrower to make
any payment when due of any amount owing hereunder or under such Note
in respect of the Loans to be evidenced by such Note.
(b) The Money Market Loans made by any Bank to any Borrower
shall be evidenced by a single promissory note of the relevant
Borrower in substantially the form of Exhibit A-2 hereto, dated the
date of its delivery to the Agent, payable to such Bank and otherwise
duly completed. The date, amount, Type, Currency, interest rate and
maturity date of each Money Market Loan made by each Bank to such
Borrower, and all payments made on account of the principal thereof,
shall be recorded by such Bank on its books and, prior to any transfer
of such Note held by it, endorsed by such Bank on the schedule
attached to such Note or any continuation thereof; provided that the
failure of such Bank to make any such recordation or endorsement shall
not affect the obligations of such Borrower to make any payment when
due of any amount owing hereunder or under such Note in respect of the
Loans to be evidenced by such Note.
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(c) No Note may be subdivided, whether by exchange for
promissory notes of lesser denominations or otherwise except in
connection with a permitted assignment of a portion of the Loans
evidenced thereby pursuant to Section 12.05(b) hereof.
2.10 Prepayments. Base Rate Loans may be prepaid upon not
less than one Business Day's prior notice to the Agent (which shall
promptly notify the Banks), which notice shall specify the prepayment
date (which shall be a Business Day) and the amount of the prepayment
(which, in the case of partial prepayments, shall be in an integral
multiple of $1,000,000) and shall be irrevocable and effective only
upon receipt by the Agent, provided that interest on the principal of
any Base Rate Loans prepaid, accrued to the prepayment date, shall be
paid on the prepayment date. LIBO Rate Loans or Set Rate Loans may
not be voluntarily prepaid (provided that this sentence shall not
affect any Borrower's obligation to prepay Loans pursuant to Section 9
of this Agreement).
2.11 Extension of Commitment Termination Date. (a) The
Company may, by notice to the Agent (which shall promptly deliver a
copy to each of the Banks) not less than 60 days and not more than 90
days prior to the Commitment Termination Date then in effect hereunder
(the "Existing Commitment Termination Date"), request that the Banks
extend the Commitment Termination Date for an additional 364 days from
the Consent Date (as defined below). Each Bank, acting in its sole
discretion, shall, by notice to the Company and the Agent given on the
date (and, subject to the proviso below, only on the date) 30 days
prior to the Existing Commitment Termination Date (provided, if such
date is not a Business Day, then such notice shall be given on the
next succeeding Business Day) (the "Consent Date"), advise the Company
whether or not such Bank agrees to such extension; provided that each
Bank that determines not to extend the Commitment Termination Date (a
"Non-extending Bank") shall notify the Agent (which shall notify the
Company) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Bank that does not
advise the Company on or before the Consent Date shall be deemed to be
a Non-extending Bank. The election of any Bank to agree to such
extension shall not obligate any other Bank to agree.
(b) The Company shall have the right on or before the
Existing Commitment Termination Date to replace each Non-extending
Bank with, and otherwise add to this Agreement, one or more other
banks (which may include any Bank, each prior to the Existing
Commitment Termination Date an "Additional Commitment Bank") with the
approval of the Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Banks shall have
entered into an agreement in form and substance satisfactory to the
Company and the Agent pursuant to which such Additional Commitment
Bank shall, effective as of the Existing Commitment Termination Date,
undertake a Commitment (if any such Additional Commitment Bank is a
Bank, its Commitment shall be in addition to such Bank's Commitment
hereunder on such date).
(c) If (and only if) Banks holding Commitments that,
together with the additional Commitments of the Additional Commitment
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Banks that will become effective on the Existing Commitment
Termination Date, aggregate at least 75% of the aggregate amount of
the Commitments (not including the additional Commitments of the
Additional Commitment Banks) on the Consent Date shall have agreed on
the Consent Date to extend the Existing Commitment Termination Date,
then, effective as of the Existing Commitment Termination Date, the
Existing Commitment Termination Date shall be extended to the date
falling 364 days after the Consent Date (provided, if such date is not
a Business Day, then such Commitment Termination Date as so extended
shall be the next preceding Business Day) and each Additional
Commitment Bank shall thereupon become a "Bank" for all purposes of
this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any
Bank unless:
(i) no Default shall have occurred and be continuing on
each of the date of the notice requesting such extension, the
Consent Date and the Existing Commitment Termination Date;
(ii) each of the representations and warranties of the
Company in Section 7 hereof shall be true and correct on and as
of each of the date of the notice requesting such extension, the
Consent Date and the Existing Commitment Termination Date with
the same force and effect as if made on and as of each such date
(or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific
date); and
(iii) each Non-extending Bank shall have been paid in full by
the Company all amounts owing to such Bank hereunder on or before
the Existing Commitment Termination Date.
Even if the Existing Commitment Termination Date is extended as
aforesaid, the Commitment of each Non-extending Bank shall terminate
on the Existing Commitment Termination Date.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 Repayment of Loans. Each Borrower hereby promises to
pay to the Agent for account of each Bank the principal amount of each
Loan made by such Bank to such Borrower, and each Loan shall mature,
on the last day of the Interest Period for such Loan.
3.02 Interest.
(a) Each Borrower hereby promises to pay to the Agent for
account of each Bank interest on the unpaid principal amount of each
Loan made by such Bank to such Borrower for the period commencing on
the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(i) if such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time);
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(ii) if such Loan is a LIBOR Loan, the LIBO Rate for such
Loan for the Interest Period therefor plus the Applicable Margin;
(iii) if such Loan is a LIBOR Market Loan, the LIBO Rate for
such Loan for the Interest Period therefor plus (or minus) the
Money Market Margin quoted by the Bank making such Loan in
accordance with Section 2.03 hereof; and
(iv) if such Loan is a Set Rate Loan, the Money Market Rate
for such Loan for the Interest Period therefor quoted by the Bank
making such Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, each Borrower hereby promises to pay to
the Agent for account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank to
such Borrower, and (to the fullest extent permitted by law) on any
other amount payable by such Borrower hereunder or under the Note of
such Borrower held by such Bank to or for account of such Bank, which
shall not be paid in full when due (whether at stated maturity, by
acceleration or otherwise), for the period commencing on the due date
thereof until the same is paid in full.
(b) Accrued interest on each Loan shall be payable on the
last day of the Interest Period therefor and, if such Interest Period
is longer than three months, at three-month intervals following the
first day of such Interest Period, except that interest payable at the
Post-Default Rate shall be payable from time to time on demand.
(c) Promptly after the determination of any LIBO Rate
provided for herein, the Agent shall (i) notify the Banks to which
interest at such LIBO Rate is payable and the Company thereof and (ii)
at the request of the Company, furnish to the Company a copy of the
page of the Screen on the basis of which the relevant LIBO Base Rate
was determined. At any time that the Agent determines the LIBO Rate
on a basis other than using the Screen, the Agent shall promptly
notify the Company.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal of and interest on Loans made in Dollars, and
other amounts (other than the principal of and interest on Loans made
in an Alternative Currency) payable by any Obligor under this
Agreement and the Notes, shall be made in Dollars, and all payments of
principal of and interest on Loans made in an Alternative Currency
shall be made in such Alternative Currency, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent's
Account for such Currency, for account of the Banks, not later than
2:00 p.m. New York time (in the case of Loans denominated in Dollars)
or 11:00 a.m. local time in the location of the Agent's Account (in
the case of Loans denominated in an Alternative Currency), on the date
on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next
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succeeding Business Day), provided that if a new Loan is to be made by
any Bank to any Borrower on a date such Borrower is to repay any
principal of an outstanding Loan of such Bank in the same Currency,
such Bank shall apply the proceeds of such new Loan to the payment of
the principal to be repaid and only an amount equal to the difference
between the principal to be borrowed and the principal to be repaid
shall be made available by such Bank to the Agent as provided in
Section 2.02 hereof or paid by such Borrower to the Agent pursuant to
this Section 4.01, as the case may be.
(b) If any Borrower shall default in the payment when due
of any principal, interest or other amounts to be made by such
Borrower under this Agreement or the Notes, any Bank for whose account
any such payment is to be made may (but shall not be obligated to)
debit the amount of any such payment due such Bank which is not made
by such time to any ordinary deposit account of such Borrower with
such Bank (with notice to the Company and the Agent).
(c) Each Borrower (or, in the case of any Approved
Borrower, the Company on behalf of such Approved Borrower) shall, at
the time of making each payment under this Agreement or any Note for
account of any Bank, specify to the Agent the Loans or other amounts
payable by such Borrower hereunder to which such payment is to be
applied (and in the event that the payor fails to so specify, or if an
Event of Default has occurred and is continuing, such Bank may apply
such payment received by it from the Agent to such amounts then due
and owing to such Bank as such Bank may determine).
(d) Each payment received by the Agent under this Agreement
or any Note for account of any Bank shall be paid promptly to such
Bank, in immediately available funds.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period
of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing from the Banks of Syndicated
Loans under Section 2.01 hereof shall be made from the Banks, each
payment of fees under Section 2.06 hereof shall be made for account of
the Banks, and each reduction of the amount or termination of the
Commitments under Section 2.05 hereof shall be applied to the
Commitments of the Banks, pro rata according to the amounts of their
respective Commitments; (b) each payment of principal of Syndicated
Loans by any Borrower shall be made for account of the Banks pro rata
in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by the Banks; and (c) each payment of interest
on Syndicated Loans by any Borrower shall be made for account of the
Banks pro rata in accordance with the amounts of interest due and
payable to the respective Banks; provided that, if an Event of Default
shall have occurred and be continuing, each payment of principal of
and interest on the Loans and other amounts owing hereunder by any
Borrower shall be made for account of the Banks pro rata in accordance
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with the aggregate amounts of all principal of and interest on the
Loans and all other amounts owing hereunder by such Borrower then due
and payable to the respective Banks.
4.03 Computations. Interest on Set Rate Loans, LIBO Rate
Loans and the fees payable pursuant to Section 2.06 hereof shall be
computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the
period for which payable, and interest on Base Rate Loans shall be
computed on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable.
4.04 Non-Receipt of Funds by the Agent. Unless the Agent
shall have been notified by a Bank or any Borrower (or, in the case of
any Approved Borrower, the Company on behalf of such Approved
Borrower) (each, a "Payor") prior to the time by, and on the date on,
which such Payor is scheduled to make payment to the Agent of (in the
case of a Bank) the proceeds of a Loan to be made by it hereunder or
(in the case of any Borrower) a payment to the Agent for account of
one or more of the Banks hereunder (such payment being herein called
the "Required Payment"), which notice shall be effective upon receipt,
that it does not intend to make the Required Payment to the Agent, the
Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient(s) on such date;
and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the
Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such
amount was so made available by the Agent to but not including the
date the Agent recovers such amount (the "Advance Period") at a rate
per annum equal to (a) if the recipient is a Borrower, the Base Rate
in effect on such day and (b) if the recipient is a Bank, the Federal
Funds Rate in effect on such day; and, if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest thereon
for each day during the Advance Period at a rate per annum equal to
(i) if the Payor is a Borrower, the rate of interest payable on the
Required Payment as provided in the second sentence of Section 3.02(a)
hereof and (ii) if the Payor is a Bank, during the period commencing
on the date such amount was so made available to but excluding the
date three Business Days following such date, the Federal Funds Rate
in effect on such day and, thereafter, the Base Rate in effect on such
day.
4.05 Set-off; Sharing of Payments.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a
Bank may otherwise have, each Bank shall be entitled, at its option,
to offset balances held by it for account of such Obligor at any of
its offices, in Dollars or in any other Currency, against any
principal of or interest on any of such Bank's Loans which is not paid
when due (regardless of whether such balances are then due to such
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Obligor) in which case it shall promptly notify such Obligor (through
notice to the Company) and the Agent thereof, provided that such
Bank's failure to give such notice shall not affect the validity
thereof.
(b) If any Bank shall obtain payment of any principal of or
interest on any Syndicated Loan made by it under this Agreement
through the exercise of any right of set-off, bankers' lien or
counterclaim or similar right or otherwise, and, as a result of such
payment, such Bank shall have received a greater percentage of the
amounts then due hereunder to such Bank in respect of Syndicated Loans
than the percentage received by any other Banks, it shall promptly
purchase from such other Banks participations in (or, if and to the
extent specified by such Bank, direct interests in) the Syndicated
Loans made by such other Banks (or in the interest thereon, as the
case may be) in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all the Banks
shall share the benefit of such excess payment (net of any expenses
which may be incurred by such Bank in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal and
interest on the Syndicated Loans held by each of the Banks. To such
end all the Banks shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. Each Obligor agrees that any
Bank so purchasing a participation (or direct interest) in the
Syndicated Loans made by other Banks (or in the interest thereon, as
the case may be) may exercise all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as
fully as if such Bank were a direct holder of Loans (or in the
interest thereon, as the case may be) in the amount of such
participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to
exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of any Obligor. If
under any applicable bankruptcy, insolvency or other similar law, any
Bank receives a secured claim in lieu of a set-off to which this
Section 4.05 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this
Section 4.05 to share in the benefits of any recovery on such secured
claim.
SECTION 5. YIELD PROTECTION AND ILLEGALITY.
5.01 Additional Costs.
(a) Each Borrower shall pay directly to each Bank from time
to time such amounts as such Bank may determine to be necessary to
compensate such Bank for any costs that such Bank determines are
attributable to its making or maintaining of any LIBO Rate Loans or
its obligation to make any LIBO Rate Loans hereunder, or any reduction
in any amount receivable by such Bank hereunder in respect of any of
such Loans or such obligation (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that:
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(i) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Notes in respect of any of
such Loans (other than taxes imposed on or measured by the
overall net income of such Bank or of its Applicable Lending
Office for any of such Loans by the jurisdiction in which such
Bank has its principal office or such Applicable Lending Office);
or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized
in the determination of the LIBO Rate for such Loan) relating to
any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Bank (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "LIBO Base Rate" in Section 1.01 hereof), or any
commitment of such Bank (including, without limitation, the
Commitment of such Bank hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or
its Commitment.
If any Bank requests compensation from any Borrower under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy
to the Agent), suspend the obligation of such Bank thereafter to make
LIBO Rate Loans until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable), provided that such
suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason of
any Regulatory Change, any Bank either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the
amount of a category of deposits or other liabilities of such Bank
that includes deposits by reference to which the interest rate on LIBO
Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Bank that includes
LIBO Rate Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if
such Bank so elects by notice to the Company (with a copy to the
Agent), the obligation of such Bank to make LIBO Rate Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay
directly to each Bank from time to time on request such amounts as
such Bank may determine to be necessary to compensate such Bank (or,
without duplication, the bank holding company of which such Bank is a
subsidiary) for any costs that it determines are attributable to the
maintenance by such Bank (or any Applicable Lending Office or such
bank holding company), pursuant to any law or regulation or any
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interpretation, directive or request (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or
governmental or supervisory authority implementing at the national
level the Basel Accord (including, without limitation, the Final
Risk-Based Capital Guidelines), of capital in respect of its
Commitment or Loans (such compensation to include, without limitation,
an amount equal to any reduction of the rate of return on assets or
equity of such Bank (or any Applicable Lending Office or such bank
holding company) to a level below that which such Bank (or any
Applicable Lending Office or such bank holding company) would have
achieved with respect to its Commitment or Loans but for such law,
regulation, interpretation, directive or request).
(d) Each Bank shall notify the Company of any event
occurring after the date of this Agreement entitling such Bank to
compensation under paragraph (a) or (c) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after such
Bank obtains actual knowledge thereof. If any Bank fails to give such
notice within 45 days after it obtains actual knowledge of such an
event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such
event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such
Bank does give such notice. Each Bank will furnish to the Company a
certificate setting forth the basis and amount of each request by such
Bank for compensation under paragraph (a) or (c) of this Section 5.01.
Determinations and allocations by any Bank for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to
paragraph (a) or (b) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (c) of this Section 5.01, on its
costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the
amounts required to compensate such Bank under this Section 5.01,
shall be conclusive absent manifest error, provided that such
determinations and allocations are made on a reasonable basis.
(e) Each Bank will designate a different Applicable Lending
Office for the Loans of such Bank affected by any event specified in
paragraphs (a), (b) or (c) of this Section 5.01 or in Section 5.03
hereof if such designation will avoid the need for, or reduce the
amount of, such compensation or suspension, as the case may be, and
will not, in the sole opinion of such Bank, be disadvantageous to such
Bank.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding:
(a) if the LIBO Base Rate for any Currency is to be
determined under paragraph (b) of the definition of "LIBO Base
Rate" and the Agent determines (which determination shall be
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conclusive) that no quotation from any Reference Bank of interest
rates for the relevant deposits referred to in such paragraph (b)
are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest
for LIBO Rate Loans as provided herein; or
(b) if the LIBO Base Rate for any Currency is being
determined under paragraph (b) of the definition of "LIBO Base
Rate" and the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market
Loan, determines), which determination shall be conclusive, and
notify (or notifies, as the case may be) the Agent that the
relevant rates of interest referred to in paragraph (b) of the
definition of "LIBO Base Rate" do not adequately cover the cost
to such Banks (or such quoting Bank) of making or maintaining its
LIBO Rate Loans in such Currency;
then the Agent shall give the Company and each Bank prompt notice
thereof, and so long as such condition remains in effect, the Banks
(or such quoting Bank) shall be under no obligation to make additional
LIBO Rate Loans in such Currency.
5.03 Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to honor its obligation to make or
maintain LIBO Rate Loans hereunder in any Currency, then such Bank
shall promptly notify the Company thereof (with a copy to the Agent)
and such Bank's obligation to make LIBOR Loans in such Currency shall
be suspended until such time as such Bank may again make and maintain
LIBOR Loans in such Currency (in which case the provisions of
Section 5.04 hereof shall be applicable), and such Bank shall no
longer be obligated to make any LIBOR Market Loan in such Currency
that it has offered to make.
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03.
If the obligation of any Bank to make any LIBO Rate Loans in Dollars
shall be suspended pursuant to Section 5.01 or 5.03 hereof (Loans of
such type being herein called "Affected Loans" and such type being
herein called the "Affected Type"), all Loans in Dollars (other than
Money Market Loans) which would otherwise be made by such Bank as
Loans of the Affected Type shall be made instead as Base Rate Loans
(and, if an event referred to in Section 5.01(b) or 5.03 hereof has
occurred and such Bank so requests by notice to the Company with a
copy to the Agent, all Affected Loans of such Bank then outstanding
shall be automatically converted into Base Rate Loans on the date
specified by such Bank in such notice) and, to the extent that
Affected Loans are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Bank's
Affected Loans shall be applied instead to its Base Rate Loans.
5.05 Compensation. Each Borrower shall pay to the Agent
for account of each Bank, upon the request of such Bank through the
Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost
or expense which such Bank determines are attributable to:
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(a) any payment or conversion of a LIBO Rate Loan or a Set
Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9
hereof) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by such Borrower for any reason (excluding
only failure due solely to a default by any Bank or the Agent in
its obligation to provide funds to such Borrower hereunder but
including, without limitation, the failure of any of the
conditions precedent specified in Section 6 hereof to be
satisfied) to borrow a LIBO Rate Loan or a Set Rate Loan from
such Bank on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 or
2.03(b) hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include, in the case of a Loan, an amount equal to
the excess, if any, of (i) the amount of interest which otherwise
would have accrued on the principal amount so paid or converted or not
borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period for such
Loan which would have commenced on the date specified for such
borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the interest component of the amount such Bank
would have bid in the London interbank market for deposits in the
applicable Currency of leading banks (if such Loan is a LIBO Rate
Loan) or in the United States certificate of deposit market for
issuance at face value of certificates of deposit for Dollar deposits
(if such Loan is a Set Rate Loan) in amounts comparable to such
principal amount and with maturities comparable to such period (as
reasonably determined by such Bank).
5.06 Taxes.
(a) Each Borrower agrees to pay to each Bank such
additional amounts as are necessary in order that the net payment of
any amount due to such Bank hereunder after deduction for or
withholding in respect of any Taxes imposed with respect to such
payment will not be less than the amount stated herein to be then due
and payable, provided that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to any Bank hereunder unless such Bank
is, on the date such Borrower became a Borrower hereunder (which,
in the case of the Company and the Approved Borrowers listed in
Section 2.04(b) hereof, means the date hereof and, in the case of
any other Approved Borrower, means the date of the Designation
Letter of such Approved Borrower) or (if later) on the date such
Bank becomes a Bank hereunder as provided in Section 12.05(b)
hereof and on the date of any change in the Applicable Lending
Office of such Bank, entitled to a complete exemption from
withholding or deduction by such Borrower of Taxes on all
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interest to be received by such Bank hereunder in respect of the
Loans made by such Bank to such Borrower, or
(ii) to any such Taxes required to be deducted or withheld
solely by reason of the failure of such Bank to comply with
applicable certification, information, documentation or other
reporting requirements concerning the nationality, residence,
identity or connections with such Borrower's Jurisdiction if such
compliance is required by treaty, statute or regulation as a
precondition to relief or exemption from such Taxes.
For the purposes of this Section 5.06(a), the term "Taxes" shall mean
with respect to any Borrower all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges,
compulsory loans and withholdings whatsoever, and all interest,
penalties or similar amounts with respect thereto, now or hereafter
imposed, assessed, levied or collected by such Borrower's Jurisdiction
on or in respect of the Basic Documents, the principal of and interest
on the Loans and any other amounts payable under any of the Basic
Documents, the recording, registration, notarization or other
formalization of any thereof, the enforcement thereof or the
introduction thereof in any judicial proceedings, or on or in respect
of any payments of principal, interest, premium, charges, fees or
other amounts made on, under or in respect of any thereof (excluding,
however, income or franchise taxes imposed on or measured by the
overall net income or capital of a Bank (or its Applicable Lending
Office) by such Borrower's Jurisdiction as a result of such Bank being
organized under the laws of or resident in such Borrower's
Jurisdiction or of its Applicable Lending Office being located or
carrying on business in such Borrower's Jurisdiction).
(b) Within 30 days after paying any amount to the Agent or
any Bank from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit
such deduction or withholding to any relevant taxing or other
authority, the relevant Borrower shall deliver to the Agent for
delivery to such Bank evidence satisfactory to such Bank of such
deduction, withholding or payment (as the case may be).
SECTION 6. CONDITIONS PRECEDENT.
6.01 Initial Credit Extension. The obligation of the Banks
to make the initial Credit Extension hereunder is subject to the
receipt by the Agent of the following documents, each of which shall
be satisfactory to the Agent in form and substance:
(a) Certified copies of the charter and by-laws of, and all
corporate action taken by, the Company approving this Agreement
and the Notes to be made by the Company, borrowings by the
Company and the guarantee of the Company set forth in Section 11
hereof (including, without limitation, a certificate setting
forth the resolutions of the Board of Directors of the Company
adopted in respect of the transactions contemplated hereby).
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(b) A certificate of the Company in respect of each of the
officers (i) who is authorized to sign this Agreement, the Notes,
Money Market Quote Requests, Designation Letters and Termination
Letters, together with specimen signatures, and (ii) who will,
until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in
connection herewith and with the Notes and the transactions
contemplated hereby and thereby. The Agent and each Bank may
conclusively rely on such certificate until they receive notice
in writing from the Company to the contrary.
(c) An opinion of Schiff, Hardin & Waite, special Illinois
counsel to the Company substantially in the form of Exhibit B-1
hereto (and the Company hereby instructs such counsel to deliver
such opinion to the Banks and the Agent); and an opinion of Dale
L. Matschullat, Esq., general counsel to the Company,
substantially in the form of Exhibit B-2 hereto (and the Company
hereby instructs such counsel to deliver such opinion to the
Banks and the Agent).
(d) An opinion of Milbank, Tweed, Hadley & McCloy, special
New York counsel to the Banks and the Agent, substantially in the
form of Exhibit C hereto.
(e) A Syndicated Note and a Money Market Note for each Bank
duly completed and executed by the Company.
6.02 Initial Credit Extension to any Approved Borrower.
The obligation of the Banks to make the initial Credit Extension
hereunder to any Approved Borrower (including, without limitation, any
Approved Borrower designated pursuant to Section 2.04(b) hereof) is
subject to the receipt by the Agent of the following documents, each
of which shall be satisfactory to the Agent in form and substance:
(a) Certified copies of the charter and by-laws (as
applicable) of such Approved Borrower and all corporate action
taken by such Approved Borrower approving the Designation Letter
of such Approved Borrower, this Agreement and the Notes to be
made by such Approved Borrower and borrowings by such Approved
Borrower (including, without limitation, a certificate setting
forth the resolutions of the Board of Directors of such Approved
Borrower adopted in respect of the transactions contemplated
hereby and thereby).
(b) A certificate of such Approved Borrower in respect of
each of the officers and/or directors (i) who is authorized to
sign the Designation Letter, Notes and Termination Letter (if
any) of such Approved Borrower, together with specimen
signatures, and (ii) who will, until replaced by another officer
or director duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving
notices and other communications in connection herewith and with
the Notes of such Approved Borrower and the transactions
contemplated hereby and thereby. The Agent and each Bank may
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conclusively rely on such certificate until they receive notice
in writing from such Approved Borrower to the contrary.
(c) A Syndicated Note and a Money Market Note for each
Bank, duly completed and executed by such Approved Borrower.
(d) Such other documents as the Agent or any Bank or
special New York counsel to the Banks and the Agent may
reasonably request.
6.03 Initial and Subsequent Credit Extensions. The
obligation of any Bank to make any Credit Extension hereunder
(including, without limitation, the initial Credit Extension
hereunder) is subject to the further conditions precedent that, as of
the date of such Credit Extension and after giving effect thereto and
the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company
and, in the case of a Credit Extension to any Approved Borrower,
such Approved Borrower in Section 7 hereof shall be true on and
as of the date of such Credit Extension with the same force and
effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder (whether on its own
behalf or on behalf of any other Borrower) shall constitute a
certification by the Company to the effect set forth in the preceding
sentence (both as of the date of such notice and, unless the Company
otherwise notifies the Agent prior to the date of such Credit
Extension, as of the date of such Credit Extension).
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Banks that:
Part A. Representations and Warranties of the Company.
7.01 Corporate Existence. Each of the Company and its
Significant Subsidiaries: (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all
material governmental licenses, authorizations, consents and
approvals, necessary to own its assets and carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary except where
failure so to qualify would not have a material adverse effect on the
consolidated financial condition, operations, business or prospects of
the Company and its Subsidiaries (taken as a whole).
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7.02 Financial Condition.
(a) The consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1994 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of Arthur Andersen & Co., heretofore
furnished to each of the Banks, are complete and correct and fairly
present the consolidated financial condition of the Company and its
Subsidiaries as at said date and the consolidated results of their
operations for the fiscal year ended on said date, all in accordance
with generally accepted accounting principles. Neither the Company
nor any of its Subsidiaries had on said date any material contingent
liabilities, material liabilities for taxes, material unusual forward
or long-term commitments or material unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected
or provided for in said balance sheet as at said date.
(b) The consolidated balance sheet of the Company and its
Subsidiaries as at March 31, 1995 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal quarter ended on said
date, heretofore furnished to each of the Banks, are complete and
correct and fairly present the consolidated financial condition of the
Company and its Subsidiaries as at said date and the consolidated
results of their operations for the fiscal quarter ended on said date,
all in accordance with generally accepted accounting principles.
Neither the Company nor any of its Subsidiaries had on said date any
material contingent liabilities, material liabilities for taxes,
material unusual forward or long-term commitments or material
unrealized or anticipated losses from any unfavorable commitments,
except as referred to or reflected or provided for in said balance
sheet as at said date.
(c) Since December 31, 1994, there has been no material
adverse change in the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole).
7.03 Litigation. To the best knowledge and belief of the
Company, there are no legal or arbitral proceedings or any proceedings
by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the
Company or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect.
7.04 No Breach. None of the making or performance of this
Agreement or the Notes, or the consummation of the transactions herein
or therein contemplated, will conflict with or result in a breach of,
or require any consent under, the charter or by-laws of the Company or
any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such
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agreement or instrument, or constitute a tortious interference with
any agreement, or result in the creation or imposition of any Lien
upon any of the revenues or assets of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or
instrument.
7.05 Corporate Action. The Company has all necessary
corporate power and authority to make and perform its obligations
under this Agreement and the Notes of the Company; the making and
performance of this Agreement and the Notes of the Company by the
Company have been duly authorized by all necessary corporate action on
the part of the Company; and this Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the
Notes of the Company when executed and delivered by the Company for
value will constitute, its legal, valid and binding obligation,
enforceable in accordance with their respective terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally.
7.06 Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary for the execution,
delivery or performance by the Company of this Agreement or the Notes
of the Company or for the validity or enforceability of any thereof.
7.07 Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds
of any Credit Extension hereunder will be used in a manner that will
cause the Company to violate said Regulation X or any Bank to violate
said Regulation U.
7.08 ERISA. Each of the Company and each ERISA Affiliate
has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each of its Plans and is (and to
the best of its knowledge in the case of any Multiemployer Plan is) in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability
on account of the termination of any of its Plans to the PBGC or any
of its Plans and has not incurred any withdrawal liability to any
Multiemployer Plan.
7.09 Credit Agreements. Schedule I hereto is a complete
and correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, purchase agreement, Guarantee or
other arrangement (other than a letter of credit) providing for or
otherwise relating to any extension of credit (or commitment for any
extension of credit) to, or Guarantee by, the Company or any
Subsidiary of any of them the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $1,000,000 and the
aggregate principal or face amount outstanding or which may become
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outstanding under each such arrangement is correctly described in said
Schedule I.
7.10 Hazardous Materials. The Company and each of its
Subsidiaries have obtained all permits, licenses and other
authorizations that are required under all Environmental Laws, except
to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms and
conditions of all such permits, licenses and authorizations, and are
also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law
or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a
Material Adverse Effect. Except as heretofore disclosed to the Banks,
there have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in the
possession of the Company or any of its Subsidiaries with respect to
any property or facility now or previously owned or leased by the
Company or any of its Environmental Affiliates which reveal facts or
circumstances that could reasonably be expected to have a Material
Adverse Effect.
7.11 Taxes. The Company and its Subsidiaries are members
of an affiliated group of corporations filing consolidated returns for
Federal income tax purposes, of which the Company is the "common
parent" (within the meaning of Section 1504 of the Code) of such
group. The Company and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion
of the Company, adequate. The United States Federal income tax
returns of the Company and its Subsidiaries have been examined and/or
closed through the fiscal years of the Company and its Subsidiaries
ended on or before December 31, 1985. The Company has not given or
been requested to give a waiver of the statute of limitations relating
to the payment of Federal, state, local and foreign taxes or other
impositions except that with respect to the Company's 1986 and 1987
tax years there has been an extension in the statute of limitations
relating to the payment of Federal taxes through December 31, 1993 and
with respect to the Company's 1988 and 1989 tax years there has been
such an extension through September 15, 1994.
7.12 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of the Company to the Banks in connection with
the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
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light of the circumstances under which they are made, not misleading.
All written information furnished after the date hereof by the Company
and its Subsidiaries to the Banks in connection with this Agreement
and the transactions contemplated hereby will be true, complete and
accurate in every material respect, or (in the case of projections)
based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse
Effect that has not been disclosed herein or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing
furnished to the Banks for use in connection with the transactions
contemplated hereby.
7.13 Subsidiaries. Set forth in Schedule III hereto is a
complete and correct list, as of the date of this Agreement, of all of
the Subsidiaries of the Company, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and
(iii) the nature of the ownership interests held by each such Person
and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule III hereto, (x)
each of the Company and its Subsidiaries owns, free and clear of
Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule
III hereto and (y) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully
paid and nonassessable.
7.14 Compliance with Law. As of the date of this
Agreement, the Company and its Subsidiaries are in material compliance
with all applicable laws and regulations, except to the extent that
failure to comply therewith would not have a Material Adverse Effect.
Part B. Representations and Warranties of the Approved
Borrowers. Each Approved Borrower represents and warrants to the
Banks that:
7.15 Corporate Existence. Such Approved Borrower: (a) is
a corporation duly organized and validly existing under the laws of
the jurisdiction of its incorporation; (b) has all requisite corporate
power, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its assets and carry on its
business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary except
where failure so to qualify would not have a material adverse effect
on the consolidated financial condition, operations, business or
prospects of such Approved Borrower and its Subsidiaries (taken as a
whole).
7.16 No Breach. None of the making or performance of the
Designation Letter of such Approved Borrower, this Agreement or the
Notes of such Approved Borrower, or the consummation of the
transactions herein or therein contemplated, will conflict with or
result in a breach of, or require any consent under, the charter or
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by-laws of such Approved Borrower or any applicable law or regulation,
or any order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument to which such
Approved Borrower or any of its Subsidiaries is a party or by which
any of them is bound or to which any of them is subject, or constitute
a default under any such agreement or instrument, or constitute a
tortious interference with any agreement, or result in the creation or
imposition of any Lien upon any of the revenues or assets of such
Approved Borrower or any of its Subsidiaries pursuant to the terms of
any such agreement or instrument.
7.17 Corporate Action. Such Approved Borrower has all
necessary corporate power and authority to make and perform its
obligations under the Designation Letter of such Approved Borrower,
this Agreement and the Notes of such Approved Borrower and to borrow
hereunder; the making and performance of the Designation Letter of
such Approved Borrower, this Agreement and the Notes of such Approved
Borrower and the borrowing by such Approved Borrower hereunder have
been duly authorized by all necessary corporate action on its part;
and the Designation Letter of such Approved Borrower and this
Agreement constitute, and the Notes of such Approved Borrower when
executed and delivered by such Approved Borrower for value will
constitute, its legal, valid and binding obligation, enforceable in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights
generally.
7.18 Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency which have not been obtained are
necessary for the execution, delivery or performance by such Approved
Borrower of the Designation Letter of such Approved Borrower, this
Agreement or the Notes of such Approved Borrower or for the validity
or enforceability of any thereof or for the borrowing by such Approved
Borrower hereunder.
7.19 Taxes on Payments of Approved Borrowers. Except as
disclosed to the Agent and the Banks by the Company prior to the
delivery of the Designation Letter of such Approved Borrower, as of
the date of such Designation Letter (a) there are no Taxes of such
Approved Borrower's Jurisdiction imposed by or in the nature of
withholding or otherwise, which are imposed on any payment to be made
by such Approved Borrower pursuant hereto or on the Notes of such
Approved Borrower, or are imposed on or by virtue of the execution,
delivery or enforcement of the Designation Letter of such Approved
Borrower, this Agreement or the Notes of such Approved Borrower (b)
such Approved Borrower is permitted to make payments pursuant to this
Agreement and the Notes free and clear of all such Taxes and (c) any
exemption from the withholding of such Taxes that would, but for the
existence of the Guarantee of the Company under Section 11 hereof, be
available under a tax treaty to which the Borrower's Jurisdiction and
the jurisdiction of the organization of any Bank are parties will not
be made unavailable by the existence of such Guarantee of the Company.
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7.20 Choice of Law. In any action or proceeding in any
court of or in such Approved Borrower's Jurisdiction arising out of or
relating to this Agreement, the Designation Letter of such Approved
Borrower or the Notes of such Approved Borrower, such court would
recognize and give effect to the first sentence of Section 12.09(a)
hereof.
7.21 Process Agent; Etc. The appointment of the Company as
Process Agent by such Approved Borrower under Section 12.09(a) hereof
and under the Designation Letter of such Approved Borrower is a valid
appointment and the empowerment in such Approved Borrower's
Designation Letter of the Company to act as such Approved Borrower's
representative and attorney-in-fact for the purposes of signing
documents and giving and receiving notices (including notices of
borrowing under Section 2 hereof) and for the purposes of modifying or
amending any provision of this Agreement is a valid and binding
empowerment.
7.22 Qualification to Do Business. It is not necessary
under the laws of such Approved Borrower's Jurisdiction (i) in order
to enable the Agent or any Bank to enforce its rights against such
Approved Borrower under this Agreement or the Notes of such Approved
Borrower, or (ii) by reason of the execution, delivery or performance
of the Designation Letter of such Approved Borrower, this Agreement or
the Notes of such Approved Borrower, that the Agent or any Bank should
be licensed, qualified or entitled to carry on business in such
Approved Borrower's Jurisdiction.
7.23 Doing Business, Etc. Neither the Agent nor any Bank
is or will be deemed to be resident, domiciled, carrying on business
or, except as disclosed to the Agent and the Banks by the Company
prior to the delivery of the Designation Letter of such Approved
Borrower, subject to Taxes of such Approved Borrower's Jurisdiction
solely by reason of the execution, delivery, performance or
enforcement of this Agreement, the Designation Letter of such Approved
Borrower or the Notes of such Approved Borrower.
7.24 Immunity. Neither such Approved Borrower nor any of
its Property has any immunity (sovereign or otherwise) from
jurisdiction of any court of or in such Approved Borrower's
Jurisdiction or from set-off or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) under the laws of such
Approved Borrower's Jurisdiction.
7.25 Stamp Taxes. To ensure the legality, validity,
enforceability or admissibility in evidence in such Approved
Borrower's Jurisdiction of this Agreement, the Designation Letter of
such Approved Borrower or the Notes of such Approved Borrower, it is
not necessary that this Agreement, such Designation Letter or such
Notes or any other document be filed or recorded with any court or
other authority in such Approved Borrower's Jurisdiction or that any
stamp or similar tax be paid on or in respect of this Agreement, such
Designation Letter or such Notes, or any other document other than
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such filings and recordations that have already been made and such
stamp or similar taxes that have already been paid.
7.26 Legal Form. Each of this Agreement, the Designation
Letter of such Approved Borrower and the Notes of such Approved
Borrower is in proper legal form under the laws of such Approved
Borrower's Jurisdiction for the enforcement thereof against such
Approved Borrower.
7.27 No Insolvency. No event of the type referred to in
clause (e), (f) or (g) of Section 9 hereof has occurred with respect
to such Approved Borrower.
SECTION 8. COVENANTS OF THE COMPANY. The Company agrees
that, so long as any of the Commitments are in effect and until
payment in full of all Loans hereunder, all interest thereon and all
other amounts payable by each Borrower hereunder:
8.01 Financial Statements. The Company shall deliver to
each of the Banks:
(a) as soon as available and in any event within 60 days
after the end of each of the fiscal quarterly periods of each
fiscal year of the Company, consolidated statements of income,
cash flows and stockholders' equity of the Company and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form
the corresponding figures for the corresponding period in the
preceding fiscal year, and accompanied by a certificate of a
senior financial officer of the Company, which certificate shall
state that said financial statements fairly present the
consolidated financial condition and results of operations of the
Company and its Subsidiaries, in accordance with generally
accepted accounting principles, as at the end of (and for) such
period (subject to normal year-end audit adjustments).
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting
forth in each case in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by an opinion
thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said financial
statements fairly present the consolidated financial condition
and results of operations of the Company and its Subsidiaries, in
accordance with generally accepted accounting principles, as at
the end of (and for) such fiscal year, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default.
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(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any,
which the Company shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange.
(d) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements,
reports and proxy statements so mailed.
(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to know that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan of the Company have occurred or exist, a
statement signed by a senior financial officer of the Company
setting forth details respecting such event or condition and the
action, if any, which the Company or any ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Company or such
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence
of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302
of ERISA shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of
the Code);
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any
Plan if at the date of such filing or termination the fair
market value of the assets of such Plan, as determined by
the Plan's independent actuaries, is exceeded by the present
value as determined by such actuaries as of such date, of
benefit commitments under such Plan by more than $1,000,000
(including any prior terminations subject to this
provision);
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan of the
Company, of the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan causing any withdrawal liability
in excess of $500,000 (including any prior withdrawals
subject to this provision), or the receipt by the Company or
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any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
and
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days.
(f) promptly after the Company knows or has reason to know
that any Default has occurred, a notice of such Default,
describing the same in reasonable detail.
(g) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required
to be filed under ERISA) as any Bank or the Agent may reasonably
request.
The Company will furnish to each Bank, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of the Company (i) to the
effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in
compliance with Sections 8.06, 8.07(a)(vii), 8.08(xiii), 8.10 and 8.11
hereof as of the end of the respective fiscal quarter or fiscal year.
8.02 Litigation. The Company shall promptly give to each
Bank notice of all legal or arbitral proceedings, and of all
proceedings before any governmental or regulatory authority or agency,
instituted, or (to the knowledge of the Company) threatened, against
the Company or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
8.03 Corporate Existence, Etc. The Company shall, and
shall cause each of its Significant Subsidiaries to: preserve and
maintain its corporate existence and all its material rights,
privileges and franchises (except as otherwise expressly permitted
under Section 8.07 hereof); comply with the requirements of all
applicable laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such requirements
would have a Material Adverse Effect; pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge
or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being
maintained; maintain all its properties used or useful in its business
in good working order and condition, ordinary wear and tear excepted;
and permit representatives of any Bank or the Agent, during normal
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business hours, to examine, copy and make extracts from its books and
records, to inspect its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by
such Bank or the Agent (as the case may be).
8.04 Insurance. The Company shall, and shall cause each of
its Subsidiaries to, keep insured by financially sound and reputable
insurers all property of a character usually insured by corporations
engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is
usually carried by such corporations.
8.05 Use of Proceeds. The proceeds of the Credit
Extensions hereunder will be used solely for general corporate
purposes, including (without limitation) commercial paper back-up and
acquisitions (each of which uses shall be in compliance with all
applicable legal and regulatory requirements, including, without
limitation, Regulations G, U and X of the Board of Governors of the
Federal Reserve System and the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder). The Company will not permit more than 25% of
the value (as determined by any reasonable method) of its assets, nor
more than 25% of the value (as determined by any reasonable method) of
the assets of the Company and its Subsidiaries, to be represented by
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System).
8.06 Indebtedness. The Company will not, nor will it
permit any of its Subsidiaries to, incur, assume or suffer to exist
obligations in respect of standby and performance letters of credit in
an aggregate amount exceeding 5% of Total Consolidated Assets at any
one time outstanding. The Company will not permit any of its
Subsidiaries to create, issue, incur or assume, or suffer to exist,
any Indebtedness, except: (i) Indebtedness existing on the date
hereof, but not any renewals, extensions or refinancings of the same;
(ii) Indebtedness owing to the Company; (iii) Indebtedness of any
Person that becomes a Subsidiary of the Company after the date hereof
so long as such Indebtedness exists at the time such Person becomes
such a Subsidiary and was not incurred in anticipation thereof;
(iv) Capital Lease Obligations in an aggregate amount not to exceed an
amount equal to 5% of Total Consolidated Assets at any one time
outstanding; (v) Indebtedness in respect of Syndicated Loans under
this Agreement; (vi) Indebtedness in respect of Syndicated Loans (as
defined in the Other Agreement) under the Other Agreement; and
(vii) additional Indebtedness in an aggregate amount not to exceed an
amount equal to 10% of Total Consolidated Assets at any one time
outstanding.
8.07 Fundamental Changes.
(a) The Company will not, and will not permit any of its
Subsidiaries to, be a party to any merger or consolidation, and the
Company will not, and will not permit any of its Subsidiaries or
operating divisions (whether now owned or existing or hereafter
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acquired or designated) to, (x) sell, assign, lease or otherwise
dispose of all or substantially all of its Property whether now owned
or hereafter acquired or (y) sell, assign or otherwise dispose of any
capital stock of any such Subsidiary, or permit any such Subsidiary to
issue any capital stock, to any Person other than the Company or any
of its Wholly-Owned Subsidiaries if, after giving effect thereto, the Company
does not own, directly or indirectly, a majority of the capital stock
of such Subsidiary ("Controlling Stock Disposition"); except that, so
long as both before and after giving effect thereto no Default shall
have occurred and be continuing:
(i) the Company or any Subsidiary of the Company may be a
party to any merger or consolidation if it shall be the surviving
corporation;
(ii) any such Subsidiary may be a party to any merger or
consolidation with another such Subsidiary (or with any Person
that becomes another such Subsidiary as a result of such merger
or consolidation);
(iii) any such Subsidiary may merge into, and any such
Subsidiary or operating division may transfer any Property to,
the Company;
(iv) any such Subsidiary or operating division may transfer
any Property to another such Subsidiary or operating division (or
to any Person that becomes as part of such transfer another such
Subsidiary or operating division);
(v) [Intentionally Omitted];
(vi) the Company, any such Subsidiary or operating division
may sell, assign, lease or otherwise dispose of any Non-Strategic
Property; and
(vii) the Company or any such Subsidiary or operating
division may make sales, assignments and other dispositions of
Property (including Controlling Stock Dispositions) and any such
Subsidiary may become a party to a merger or consolidation (each
such sale, assignment, disposition, Controlling Stock
Disposition, merger or consolidation, other than those described
in clauses (i) through (vi) hereof, a "Disposition") if the
Property that was the subject of any such Disposition, together
with the Property that was the subject of all Dispositions during
the Disposition Period for such Disposition, did not produce
revenue that was greater in amount than an amount equal to 10% of
the revenue of the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP)
for the twelve-month period ending on the Determination Date for
such Disposition (for which purpose, a Controlling Stock
Disposition with respect to any such Subsidiary shall be deemed
to be the disposition of Property of such Subsidiary that
produced all of the revenues of such Subsidiary).
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(b) Notwithstanding anything in clauses (i)-(vii) of
Section 8.07(a) hereof to the contrary:
(i) the Company will not, and will not permit any of its
Subsidiaries or operating divisions (whether now owned or
existing or hereafter acquired or designated) to, sell, lease,
assign, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) any of its Property
(whether now owned or hereafter acquired) if such sale,
assignment, lease or other disposition (whether in one
transaction or in a series of transactions) shall have a Material
Adverse Effect; and
(ii) no Wholly-Owned Subsidiary of the Company shall be a
party to any merger or consolidation with, or shall sell, lease,
assign, transfer or otherwise dispose of any substantial part of
its Property to, any Subsidiary of the Company that is not a
Wholly-Owned Subsidiary of the Company.
8.08 Liens. The Company shall not, and shall not permit
any of its Subsidiaries to, create, assume or suffer to exist any Lien
upon any of its property or assets, now owned or hereafter acquired,
securing any Indebtedness or other obligation except: (i) Liens
outstanding on the date hereof and listed in Schedule II hereto;
(ii) Liens for taxes or other governmental charges not yet delinquent;
(iii) Liens in respect of Property acquired or constructed or improved
by the Company or any such Subsidiary after the date hereof which
Liens exist or are created at the time of acquisition or completion of
construction or improvement of such Property or within six months
thereafter to secure Indebtedness assumed or incurred to finance all
or any part of the purchase price or cost of construction or
improvement of such Property, but any such Lien shall cover only the
Property so acquired or constructed and any improvements thereto (and
any real property on which such Property is located); (iv) Liens on
Property of any corporation that becomes a Subsidiary of the Company
after the date of this Agreement, provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the
Company and were not created in anticipation thereof; (v) Liens on
Property acquired after the date hereof, provided that such Liens were
in existence at the time such Property was acquired and were not
created in anticipation thereof; (vi) Liens imposed by law, such as
mechanics, materialmen, landlords, warehousemen and carriers Liens,
and other similar Liens, securing obligations incurred in the ordinary
course of business which are not past due for more than thirty days or
which are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established; (vii) Liens
under workmen's compensation, unemployment insurance, social security
or similar legislation; (viii) Liens, deposits, or pledges to secure
the performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds,
or other similar obligations arising in the ordinary course of
business; (ix) judgment and other similar Liens arising in connection
with court proceedings, provided the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby are
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being actively contested in good faith and by appropriate proceedings;
(x) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Company or any such
Subsidiary of the Property encumbered thereby in the normal course of
its business or materially impair the value of the Property subject
thereto; (xi) Liens securing obligations of any such Subsidiary to the
Company or another Subsidiary of the Company; (xii) Liens securing
obligations of the Company (in an aggregate amount not exceeding at
any one time the greater of (a) $175,000,000 and (b) an aggregate
amount equal to 75% of the sum of (i) the book value of the accounts
receivable of the Company and its Subsidiaries plus (ii) the unpaid
amount of all accounts receivable that, but for the sale of such
accounts receivable pursuant to the Receivable Sales Agreements, would
have been reflected in accounts receivable on a consolidated balance
sheet of the Company and its Subsidiaries) pursuant to Receivables
Sale Agreements; and (xiii) other Liens securing Indebtedness in an
aggregate amount, which together with outstanding obligations referred
to in clause (xii) above, does not exceed 15% of Total Consolidated
Assets.
8.09 Lines of Businesses. Neither the Company nor any of
its Subsidiaries shall engage to any significant extent in any line or
lines of business other than the lines of business in which they are
engaged on the date hereof and any other line or lines of business
directly related to the manufacture, distribution and/or sale of
consumer or industrial products (collectively, "Permitted
Activities"). Notwithstanding the foregoing, the Company and its
Subsidiaries may engage in other lines of business as a result of the
acquisition of any Person primarily engaged in Permitted Activities so
long as the Company uses its best efforts to come into compliance with
the first sentence of this Section 8.09 within a reasonable period of
time after such acquisition.
8.10 Interest Coverage Ratio. The Company shall cause the
Interest Coverage Ratio, for any fiscal quarter of the Company, to be
greater than 3.0 to 1.
8.11 Total Indebtedness to Total Capital. The Company
shall not permit the ratio of Total Indebtedness to Total Capital at
any time to be greater than .50 to 1.
SECTION 9. EVENTS OF DEFAULT. If one or more of the
following events (herein called "Events of Default") shall occur and
be continuing:
(a) Any Borrower shall default in the payment when due of
any principal of or interest on any Loan or any other amount
payable by it hereunder; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of
its other Indebtedness aggregating $10,000,000 or more; or any
event specified in any note, agreement, indenture or other
document evidencing or relating to any Indebtedness aggregating
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$20,000,000 or more shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become due prior to its stated maturity or
to permit termination of the commitment to lend pursuant to any
such instrument or agreement; or
(c) Any representation, warranty or certification made or
deemed made by the Company or any other Borrower herein or in any
Designation Letter or by the Company or any other Borrower in any
certificate furnished to any Bank or the Agent pursuant to the
provisions hereof or thereof, shall prove to have been false or
misleading as of the time made or furnished in any material
respect; or
(d) The Company shall default in the performance of any of
its obligations under Section 8.01(f) or 8.05 through 8.11
(inclusive) hereof; or the Company shall default in the
performance of any of its other obligations in this Agreement and
such default shall continue unremedied for a period of 30 days
after notice thereof to the Company by the Agent or any Bank
(through the Agent); or
(e) The Company or any of its Significant Subsidiaries
shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(f) The Company or any of its Significant Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced against the
Company or any of its Significant Subsidiaries without its
application or consent, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of it or of all or any substantial part of
its assets, or (iii) similar relief in respect of it under any
law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing
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shall be entered and continue unstayed and in effect, for a
period of 60 days; or an order for relief against it shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money
in excess of $20,000,000 in the aggregate shall be rendered by a
court or courts against the Company and/or any of its
Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of
entry thereof and the Company or the relevant Subsidiary shall
not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An event or condition specified in Section 8.01(e)
hereof shall occur or exist with respect to any Plan or Multi-
employer Plan of the Company and, as a result of such event or
condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall incur or in the opinion of
the Majority Banks shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which is, in the determination of
the Majority Banks, material in relation to the consolidated
financial position of the Company and its Subsidiaries (taken as
a whole); or
(j) An event of default (under and as defined in the
Indenture) shall occur and be continuing; or
(k) During any period of 25 consecutive calendar months
(i) individuals who were directors of the Company on the first
day of such period and (ii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clause
(i) above and (iii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clauses
(i) and (ii) above shall no longer constitute a majority of the
Board of Directors of the Company;
THEREUPON: (i) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 in respect of the
Company or any Approved Borrower, (x) the Agent may and, upon request
of the Majority Banks, shall, by notice to the Company, cancel the
Commitments and (y) the Agent may and, upon request of Banks holding
at least 66-2/3% of the aggregate unpaid principal amount of Loans
then outstanding shall, by notice to the Company, declare the
principal amount of and the accrued interest on the Loans, and all
other amounts payable by the Company or any other Borrower hereunder
and under the Notes, to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company and each other Borrower; and
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(ii) in the case of the occurrence of an Event of Default referred to
in clause (f) or (g) of this Section 9 in respect of the Company or
any Approved Borrower, the Commitments shall be automatically
cancelled and the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by the
Company or any other Borrower hereunder and under the Notes shall
become automatically immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company and each other Borrower.
In addition, in the case of the occurrence of any event of
the type referred to in clause (f) or (g) of this Section 9 in respect
of any Approved Borrower that is not a Significant Subsidiary, the
principal amount then outstanding of, and accrued interest on, the
Loans and other amounts payable by such Approved Borrower hereunder
and under its Notes shall automatically become immediately due and
payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by such Approved
Borrower and the Company.
SECTION 10. THE AGENT.
10.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably (but subject to Section 10.08 hereof) appoints and
authorizes the Agent to act as its agent hereunder with such powers as
are specifically delegated to the Agent by the terms of this Agreement
together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.05
and the first sentence of Section 10.06 hereof shall include reference
to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (a) shall have no duties or responsibilities
except those expressly set forth in this Agreement and shall not by
reason of this Agreement be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations
or warranties contained in this Agreement or in any certificate or
other document referred to or provided for in, or received by any of
them under, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note
or any other document referred to or provided for herein or for any
failure by the Company or any other Person to perform any of its
obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings
hereunder; and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection
herewith, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent may
deem and treat the payee of any Syndicated Note as the holder thereof
for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent,
together with the written consent of the Company and the Agent, if
required, to such assignment or transfer.
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10.02 Reliance by Agent. The Agent shall be entitled to
rely upon any certification, notice or other communication (including
any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by
the Agent. As to any matters not expressly provided for by this
Agreement, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Banks, and such instructions of
the Majority Banks and any action taken or failure to act pursuant
thereto shall be binding on all the Banks.
10.03 Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default unless the Agent has received
notice from a Bank or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that the
Agent receives such a notice of the occurrence of a Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall
(subject to Section 10.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Banks, provided
that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it
shall deem advisable in the best interest of the Banks.
10.04 Rights as a Bank. With respect to its Commitment and
the Loans made by it, Chase (and any successor acting as Agent), in
its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it
were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its
individual capacity. Chase (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Company (and any of its
affiliates) as if it were not acting as the Agent, and Chase and its
affiliates may accept fees and other consideration from the Company
for services in connection with this Agreement or otherwise without
having to account for the same to the Banks.
10.05 Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed under Section 12.03 hereof, but
without limiting the obligations of the Company under said
Section 12.03), ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement or any other documents contemplated
by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the
Company is obligated to pay under Section 12.03 hereof but excluding,
unless a Default has occurred and is continuing, normal administrative
costs and expenses incident to the performance of its agency duties
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hereunder) or the enforcement of any of the terms hereof, or of any
such other documents, provided that no Bank shall be liable for any of
the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or
any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Company and
its Subsidiaries and decision to enter into this Agreement and 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 analysis and
decisions in taking or not taking action under this Agreement. The
Agent shall not be required to keep itself informed as to the
performance or observance by any Obligor of this Agreement or any
other document referred to or provided for herein or to inspect the
properties or books of the Company or any Subsidiary of the Company.
Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
affairs, financial condition or business of the Company or any
Subsidiary of the Company (or any of their affiliates) which may come
into the possession of the Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required
of the Agent hereunder the Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it
shall be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks and
the Company and the Agent may be removed at any time with or without
cause by the Majority Banks. Upon any such resignation or removal,
the Majority Banks shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within 30 days after
the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a bank
which has an office in New York, New York with a combined capital and
surplus of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section 10 shall continue
in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Agent.
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SECTION 11. GUARANTEE.
11.01 Guarantee. The Company hereby guarantees to each
Bank and the Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by
acceleration, by optional prepayment or otherwise) of the principal of
and interest on the Loans made by the Banks to, and the Notes held by
each Bank of, any Approved Borrower and all other amounts from time to
time owing to the Banks or the Agent by any Approved Borrower under
this Agreement pursuant to its Designation Letter and under the Notes,
in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed
Obligations"). The Company hereby further agrees that if any Approved
Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration, by optional prepayment or otherwise) any of
the Guaranteed Obligations, the Company will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
11.02 Obligations Unconditional. The obligations of the
Company hereunder are unconditional irrespective of (a) the value,
genuineness, validity, regularity or enforceability of any of the
Guaranteed Obligations, (b) any modification, amendment or variation
in or addition to the terms of any of the Guaranteed Obligations or
any covenants in respect thereof or any security therefor, (c) any
extension of time for performance or waiver of performance of any
covenant of any Approved Borrower or any failure or omission to
enforce any right with regard to any of the Guaranteed Obligations,
(d) any exchange, surrender, release of any other guaranty of or
security for any of the Guaranteed Obligations, or (e) any other
circumstance with regard to any of the Guaranteed Obligations which
may or might in any manner constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent hereof that
the obligations of the Company hereunder shall be absolute and
unconditional under any and all circumstances.
The Company hereby expressly waives diligence, presentment,
demand, protest, and all notices whatsoever with regard to any of the
Guaranteed Obligations and any requirement that the Agent or any Bank
exhaust any right, power or remedy or proceed against any Approved
Borrower hereunder or under the Designation Letter of such Approved
Borrower or any Note of such Approved Borrower or any other guarantor
of or any security for any of the Guaranteed Obligations.
11.03 Reinstatement. The guarantee in this Section 11
shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Approved Borrower in respect
of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder(s) of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization
or otherwise.
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11.04 Subrogation. Until the termination of the
Commitments and the payment in full of the principal of and interest
on the Loans and all other amounts payable to the Agent or any Bank
hereunder, the Company hereby irrevocably waives all rights of
subrogation or contribution, whether arising by operation of law
(including, without limitation, any such right arising under the
Federal Bankruptcy Code) or otherwise, by reason of any payment by it
pursuant to the provisions of this Section 11.
11.05 Remedies. The Company agrees that, as between the
Company on the one hand and the Banks and the Agent on the other hand,
the obligations of any Approved Borrower guaranteed under this
Agreement may be declared to be forthwith due and payable, or may be
deemed automatically to have been accelerated, as provided in Section
9 hereof, for purposes of Section 11.01 hereof notwithstanding any
stay, injunction or other prohibition (whether in a bankruptcy
proceeding affecting such Approved Borrower or otherwise) preventing
such declaration as against such Approved Borrower and that, in the
event of such declaration or automatic acceleration such obligations
(whether or not due and payable by such Approved Borrower) shall
forthwith become due and payable by the Company for purposes of said
Section 11.01.
11.06 Continuing Guarantee. The guarantee in this Section
11 is a continuing guarantee and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 12. MISCELLANEOUS.
12.01 Waiver. No failure on the part of the Agent or any
Bank to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement,
any Designation Letter or any Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or
privilege under this Agreement, any Designation Letter or any Note
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein and
therein are cumulative and not exclusive of any remedies provided by
law.
12.02 Notices. All notices and other communications
provided for herein (including, without limitation, any modifications
of, or requests, demands, waivers or consents under, this Agreement)
shall be given or made by telex, telecopy, telegraph, cable or in
writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly
given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as
aforesaid. Each Approved Borrower hereby agrees that each notice or
other communication provided for herein may be furnished to the
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Company or by the Company on its behalf in the manner specified above
and each Approved Borrower further agrees that failure of the Company
to deliver to such Approved Borrower any notice furnished in
accordance with this Section 12.02 shall not affect the validity of
such notice.
12.03 Expenses, Etc. The Company agrees to pay or
reimburse each of the Banks and the Agent for paying: (a) the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy,
special New York counsel to the Banks and the Agent, in connection
with (i) the preparation, execution and delivery of this Agreement,
the Designation Letters and the Notes, the making of the Loans
hereunder and (ii) any amendment, modification or waiver (whether or
not such amendment, modification or waiver shall become effective) of
any of the terms of this Agreement or any of the Notes; (b) all
reasonable costs and expenses of the Banks and the Agent (including
reasonable counsels' fees) in connection with the enforcement of this
Agreement, any Designation Letter or any of the Notes; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of
this Agreement, any Designation Letter, any of the Notes or any other
document referred to herein.
The Company hereby agrees to indemnify the Agent and each
Bank and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, costs, expenses, taxes or penalties
incurred by any of them arising out of, by reason of or as a
consequence of (i) any representation or warranty made or deemed to be
made by any Approved Borrower in Part B of Section 7 hereof or in such
Approved Borrower's Designation Letter proving to have been false or
misleading as of the time made in any material respect or (ii) any
investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating
to any actual or proposed use by the Company or any Subsidiary of the
Company of the proceeds of any of the Loans, including, without
limitation, the reasonable fees and disbursements of counsel incurred
in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims,
damages, costs, expenses, taxes or penalties incurred by reason of the
gross negligence or willful misconduct of the Person to be
indemnified).
12.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the
Company, the Agent and the Majority Banks, or by the Company, and the
Agent acting with the consent of the Majority Banks, and any provision
of this Agreement may be waived by the Majority Banks or by the Agent
acting with the consent of the Majority Banks; provided that no
amendment, modification or waiver shall, unless by an instrument
signed by all of the Banks or by the Agent acting with the consent of
all of the Banks: (i) increase or extend the term, or extend the time
or waive any requirement for the reduction or termination, of the
Commitments, (ii) extend the date fixed for the payment of any
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principal of or interest on any Loan, (iii) reduce the amount of any
principal of any Loan or the rate at which interest or any fee is
payable hereunder, (iv) alter the terms of Section 11 hereof or
release the Guarantor from any of its obligations thereunder,
(v) alter the terms of this Section 12.04, (vi) amend the definition
of the term "Majority Banks" or modify in any other manner the number
or percentage of the Banks required to make any determinations or
waive any rights hereunder or to modify any provision hereof, (vii)
amend the definition of the term "Agreed Alternative Currency" or
(viii) waive any of the conditions precedent set forth in Section 6
hereof; and provided, further, that any amendment of Section 10
hereof, or which increases the obligations or alters the rights of the
Agent hereunder, shall require the consent of the Agent.
12.05 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Agent.
(b) No Bank may assign all or any part of its Loans, its
Notes or its Commitment without the prior consent of the Company
and the Agent, which consents will not be unreasonably withheld;
provided that, (i) without the consent of the Company or the
Agent, any Bank may assign to any of its affiliates or to another
Bank all or (subject to the further clauses below) any portion of
its Commitment; (ii) any such partial assignment shall be not
less than $5,000,000 and in multiples of $1,000,000 in excess
thereof; and (iii) such assigning Bank shall also simultaneously
assign the same proportion of each of its Syndicated Loans then
outstanding (together with the same proportion of its Syndicated
Note then outstanding). Upon written notice to the Company and
the Agent of an assignment permitted by the preceding sentence
(which notice shall identify the assignee, the amount of the
assigning Bank's Commitment and Loans assigned in detail
reasonably satisfactory to the Agent) and upon the effectiveness
of any assignment consented to by the Company and the Agent, the
assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the
Company and the Agent), the obligations, rights and benefits of a
Bank hereunder holding the Commitment and Loans (or portions
thereof) assigned to it (in addition to the Commitment and Loans,
if any, theretofore held by such assignee) and the assigning Bank
shall, to the extent of any such Commitment assignment, be
released from its Commitment (or portions thereof) so assigned.
Upon the effectiveness of any assignment referred to in this
Section 12.05(b), the assigning Bank or the assignee Bank shall
pay to the Agent a transfer fee in an amount equal to $3,000.
(c) A Bank may sell or agree to sell to one or more other
Persons a participation in all or any part of its Commitment or
its Loans, in which event each such participant shall be entitled
to the rights and benefits of the provisions of Section 8.01(g)
hereof with respect to its participation as if (and the Company
shall be directly obligated to such participant under such
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provisions as if) such participant were a "Bank" for purposes of
said Section, but shall not have any other rights or benefits
under this Agreement or such Bank's Notes (the participant's
rights against such Bank in respect of such participation to be
those set forth in the agreement (the "Participation Agreement")
executed by such Bank in favor of the participant). All amounts
payable by the Company to any Bank under Section 5 hereof shall
be determined as if such Bank had not sold or agreed to sell any
participations and as if such Bank were funding all of its Loans
in the same way that it is funding the portion of its Loans in
which no participations have been sold. In no event shall a Bank
that sells a participation be obligated to the participant under
the Participation Agreement to take or refrain from taking any
action hereunder or under such Bank's Notes except that such Bank
may agree in the Participation Agreement that it will not,
without the consent of the participant, agree to (i) the
increase, or the extension of the term, or the extension of the
time or waiver of any requirement for the reduction or
termination, of such Bank's Commitment, (ii) the extension of any
date fixed for the payment of principal of or interest on any
participated Loan or any portion of any fees payable to the
participant, (iii) the reduction of any payment of principal of
any participated Loan, (iv) the reduction of the rate at which
either interest or (if the participant is entitled to any part
thereof) fees are payable hereunder to a level below the rate at
which the participant is entitled to receive interest or fees (as
the case may be) in respect of such participation or (v) any
modification, supplement or waiver hereof or of any of the other
Basic Documents to the extent that the same, under the terms
hereof or thereof, requires the consent of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.05, a
Bank may assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants).
12.06 Survival. The obligations of any Borrower under
Sections 5.01, 5.05 and 5.06 hereof, the obligations of the Banks
under Section 10.05 hereof and the obligations of the Company under
Section 12.03 hereof shall survive the repayment of the Loans and the
termination of the Commitments. In addition, each representation and
warranty made, or deemed to be made, by a notice of borrowing of Loans
hereunder shall survive the making of such Loans, and no Bank shall be
deemed to have waived, by reason of making any Loan, any Default or
Event of Default which may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding
that such Bank or the Agent may have had notice or knowledge or reason
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to believe that such representation or warranty was false or
misleading at the time such Loan was made.
12.07 Captions. Captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this
Agreement.
12.08 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be identical and all of
which, when taken together, shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
12.09 Governing Law; Jurisdiction; Service of Process;
Waiver of Jury Trial; Etc.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND ANY ACTION OR PROCEEDING TO
EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED IN CONNECTION
THEREWITH, MAY BE INSTITUTED IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND EACH OBLIGOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS GENERALLY (BUT NON-EXCLUSIVELY) TO THE
JURISDICTION OF EACH SUCH COURT. THE COMPANY IRREVOCABLY CONSENTS TO
THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES OF SUCH PROCESS TO THE COMPANY AT ITS ADDRESS
SET FORTH UNDERNEATH ITS SIGNATURE HERETO. EACH APPROVED BORROWER
HEREBY AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BROUGHT IN NEW YORK MAY BE MADE UPON SUCH APPROVED BORROWER BY SERVICE
UPON THE COMPANY AT THE "ADDRESS FOR NOTICES" SPECIFIED BELOW ITS NAME
ON THE SIGNATURE PAGES HEREOF AND EACH APPROVED BORROWER HEREBY
IRREVOCABLY APPOINTS THE COMPANY AS ITS AUTHORIZED AGENT ("PROCESS
AGENT") TO ACCEPT, ON BEHALF OF ITS PROPERTY SUCH SERVICE OF PROCESS
IN NEW YORK. EACH OBLIGOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. EACH OBLIGOR 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. EACH OBLIGOR FURTHER AGREES
THAT ANY SUCH ACTION OR PROCEEDING AGAINST THE AGENT AND/OR ANY OF THE
BANKS SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE AGENT AND THE BANKS HEREBY
CONSENT TO THE JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(b) EACH OF THE OBLIGORS, THE AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, 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.
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12.10 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
12.11 Judgment Currency. This is an international loan
transaction in which the specification of Dollars or an Alternative
Currency, as the case may be (the "Specified Currency"), any payment
in New York City or the country of the Specified Currency, as the case
may be (the "Specified Place"), is of the essence, and the Specified
Currency shall be the currency of account in all events relating to
Loans denominated in the Specified Currency. The payment obligations
of the Obligors under this Agreement and the Notes shall not be
discharged by an amount paid in another currency or in another place,
whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to the Specified Currency and transfer to
the Specified Place under normal banking procedures does not yield the
amount of the Specified Currency at the Specified Place due hereunder.
If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder in the Specified Currency into another
currency (the "Second Currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal banking
procedures the Agent could purchase the Specified Currency with the
Second Currency on the Business Day next preceding that on which such
judgment is rendered. The obligation of each Obligor in respect of
any such sum due from it to the Agent or any Bank hereunder (an
"Entitled Person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by such Entitled
Person of any sum adjudged to be due hereunder or under the Notes in
the Second Currency such Entitled Person may in accordance with normal
banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged
to be due; and each Obligor hereby, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled
Person against, and to pay such Entitled Person on demand in the
Specified Currency, any difference between the sum originally due to
such Entitled Person in the Specified Currency and the amount of the
Specified Currency so purchased and transferred.
12.12 Cancellation of Existing Credit Agreements. On the
date of the execution and delivery of this Agreement, the commitments
of the Banks party to the Existing Credit Agreements shall
automatically terminate and all fees payable to such Banks accrued to
such date under the Existing Credit Agreements shall be immediately
due and payable. Upon the payment of such fees, all obligations of
the Company and the Drawers under the Existing Credit Agreements shall
terminate except for obligations that by the express terms of the
Existing Credit Agreements are stated to survive the repayment of the
loans and the termination of the commitments of the Banks thereunder.
In connection with the foregoing, each of the Banks party to each
Existing Credit Agreement (such Banks constituting, in the aggregate,
the "Majority Banks" under and as defined in the respective Existing
Credit Agreement) hereby agrees to waive the requirement that the
Company provide notice of such termination under Section 2.05(b) of
each such Existing Credit Agreement.
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<PAGE> -141-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
NEWELL CO.
By ________________________
Name:
Title:
Address for Notices:
Newell Co.
29 East Stephenson Street
Freeport, Illinois 61032
Telecopy No.: 815-233-8060
Telephone No.: 815-233-8040
Attention: C.R. Davenport
Vice President --
Treasurer
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -142-
THE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By _________________________
Name:
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association),
as Agent
New York Agency
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopy No.: 718-242-6910
Telephone No.: 718-242-7979
Attention: New York Agency
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -143-
THE BANKS
Commitment THE CHASE MANHATTAN BANK
$21,333,333.33 (NATIONAL ASSOCIATION)
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Telecopy No.: (212) 552-1457
Telephone No.: (212) 552-1479
Attention: Bruce S. Borden
Vice President
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -144-
Commitment ROYAL BANK OF CANADA
$18,666,666.67
By _______________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
New York Branch
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Address for Notices:
New York Branch
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Attention: Manager, Loans
Administration
Telecopy No.: (212) 428-2372
Telephone No.: (212) 428-6311
with a copy to:
Royal Bank of Canada
One North Franklin Street
Suite 700
Chicago, Illinois 60606
Attention: Preston D. Jones, Senior
Manager
Telecopy No.: (312) 551-0805
Telephone No.: (312) 551-1618
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -145-
Commitment BANK OF AMERICA ILLINOIS
$16,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Address for Notices:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Telecopy No.: (312) 987-1276
Telephone No.: (312) 828-6624
Attention: Kurt W. Anstaett
Managing Director
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -146-
Commitment CIBC INC.
$16,000,000
By _______________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
CIBC Inc.
Two Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Address for Notices:
CIBC Inc.
Two Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Telecopy No.: (404) 319-4950
Telephone No.: (404) 319-4856
Attention: Sherry Smith
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -147-
Commitment CREDIT LYONNAIS CAYMAN ISLAND
$16,000,000 BRANCH
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Credit Lyonnais Cayman Island
Branch
1301 Avenue of the Americas
New York, New York 10019
Address for Notices:
Credit Lyonnais
c/o Credit Lyonnais Chicago
Branch
227 West Monroe
Chicago, Illinois 60606
Telecopy No.: (312) 641-0527
Telephone No.: (312) 220-7310
Attention: David Payne
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -148-
Commitment MORGAN GUARANTY TRUST COMPANY
$16,000,000 OF NEW YORK
By _____________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Address for Notices:
Morgan Guaranty Trust Company
of New York
c/o J.P. Morgan Services
500 Stanton Christiana Road
P.O. Box 6070
Newark, Delaware 19713-2107
Telecopy No.: (302) 634-1094
Telephone No.: (302) 634-1800
Attention: MOF Desk
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -149-
Commitment NATIONSBANK, N.A. (CAROLINAS)
$16,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
NationsBank, N.A. (Carolinas)
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Address for Notices:
NationsBank, N.A. (Carolinas)
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Telecopy No.: (312) 234-5601
Telephone No.: (312) 234-5643
Attention: Carter E. Smith
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -150-
Commitment NBD BANK
$16,000,000
By ____________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Address for Notices:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Telecopy No.: (313) 225-1671
Telephone No.: (313) 225-2762
Attention: Timothy M. Monahan
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -151-
Commitment THE NORTHERN TRUST COMPANY
$16,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Address for Notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Telecopy No.: (312) 444-3508
Telephone No.: (312) 444-3460
Attention: Terese M. Hayes
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -152-
Commitment PNC BANK, NATIONAL ASSOCIATION
$16,000,000
By ___________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
PNC Bank, N.A.
One PNC Plaza
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
Address for Notices:
PNC Bank, N.A.
500 West Madison Street
Suite 3140
Chicago, Illinois 60661
Telecopy No.: (312) 906-3420
Telephone No.: (312) 906-3440
Attention: Richard T. Jander
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -153-
Commitment SANWA BANK
$16,000,000
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Sanwa Bank
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
Sanwa Bank
10 South Wacker Drive
Chicago, Illinois 60606
Telecopy No.: (312) 346-6677
Telephone No.: (312) 368-3011
Attention: Richard Ault
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -154-
Commitment SOCIETE GENERALE
$16,000,000
By __________________________
Name:
Title:
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Societe Generale
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Address for Notices:
Societe Generale
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telecopy No.: (312) 578-5099
Telephone No.: (312) 578-5112
Attention: Donna Benson
EXHIBIT 10.2
-----------------------------------------
NEWELL CO.
-----------------------------------------
FIVE-YEAR CREDIT AGREEMENT
Dated as of June 12, 1995
-----------------------------------------
$550,000,000
-----------------------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
-----------------------------------------
CREDIT AGREEMENT
----------------
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS . . . . . . . . 159
1.01 Certain Defined Terms . . . . . . . . . . . . . . . 159
1.02 Accounting Terms and Determinations . . . . . . . . 173
1.03 Types of Loans . . . . . . . . . . . . . . . . . . . . 174
SECTION 2. COMMITMENTS . . . . . . . . . . . . . . . . . . . . . 174
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . 174
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . 175
2.03 Money Market Loans . . . . . . . . . . . . . . . . . . 176
2.04 Borrowings by Approved Borrowers; Designation of
Certain Approved Borrowers . . . . . . . . . . . . . . 180
2.05 Changes of Commitments . . . . . . . . . . . . . . . . 181
2.06 Fees . . . . . . . . . . . . . . . . . . . . . . . . . 181
2.07 Lending Offices . . . . . . . . . . . . . . . . . . . 182
2.08 Several Obligations; Remedies Independent . . . . . . 182
2.09 Notes . . . . . . . . . . . . . . . . . . . . . . . . 182
2.10 Prepayments . . . . . . . . . . . . . . . . . . . . . 183
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST . . . . . . . . . 183
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . 183
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . 183
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. . . 184
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . 184
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . 185
4.03 Computations . . . . . . . . . . . . . . . . . . . . . 186
4.04 Non-Receipt of Funds by the Agent . . . . . . . . . . 186
4.05 Set-off; Sharing of Payments . . . . . . . . . . . . . 186
SECTION 5. YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . 187
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . 187
5.02 Limitation on Types of Loans . . . . . . . . . . . . . 189
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . 190
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03 . . 190
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . 190
5.06 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 191
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 192
6.01 Initial Credit Extension . . . . . . . . . . . . . . . 192
6.02 Initial Credit Extension to any Approved Borrower . . 193
6.03 Initial and Subsequent Credit Extensions . . . . . . . 194
SECTION 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 194
7.01 Corporate Existence . . . . . . . . . . . . . . . . . 194
7.02 Financial Condition . . . . . . . . . . . . . . . . . 195
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . 195
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . 195
7.05 Corporate Action . . . . . . . . . . . . . . . . . . . 196
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . 196
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . 196
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 196
CREDIT AGREEMENT
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<PAGE>
<PAGE> -157-
7.09 Credit Agreements . . . . . . . . . . . . . . . . . . 196
7.10 Hazardous Materials . . . . . . . . . . . . . . . . . 197
7.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 197
7.12 True and Complete Disclosure. . . . . . . . . . . . . 197
7.13 Subsidiaries. . . . . . . . . . . . . . . . . . . . . 198
7.14 Compliance with Law . . . . . . . . . . . . . . . . . 198
7.15 Corporate Existence . . . . . . . . . . . . . . . . . 198
7.16 No Breach . . . . . . . . . . . . . . . . . . . . . . 198
7.17 Corporate Action . . . . . . . . . . . . . . . . . . . 199
7.18 Approvals . . . . . . . . . . . . . . . . . . . . . . 199
7.19 Taxes on Payments of Approved Borrowers . . . . . . . 199
7.20 Choice of Law . . . . . . . . . . . . . . . . . . . . 200
7.21 Process Agent; Etc. . . . . . . . . . . . . . . . . . 200
7.22 Qualification to Do Business . . . . . . . . . . . . . 200
7.23 Doing Business, Etc. . . . . . . . . . . . . . . . . . 200
7.24 Immunity . . . . . . . . . . . . . . . . . . . . . . . 200
7.25 Stamp Taxes . . . . . . . . . . . . . . . . . . . . . 200
7.26 Legal Form . . . . . . . . . . . . . . . . . . . . . . 201
7.27 No Insolvency . . . . . . . . . . . . . . . . . . . . 201
SECTION 8. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . 201
8.01 Financial Statements . . . . . . . . . . . . . . . . . 201
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . 203
8.03 Corporate Existence, Etc. . . . . . . . . . . . . . . 203
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . 204
8.05 Use of Proceeds . . . . . . . . . . . . . . . . . . . 204
8.06 Indebtedness . . . . . . . . . . . . . . . . . . . . . 204
8.07 Fundamental Changes. . . . . . . . . . . . . . . . . . 204
8.08 Liens . . . . . . . . . . . . . . . . . . . . . . . . 206
8.09 Lines of Businesses . . . . . . . . . . . . . . . . . 207
8.10 Interest Coverage Ratio . . . . . . . . . . . . . . . 207
8.11 Total Indebtedness to Total Capital . . . . . . . . . 207
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 207
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . . . 210
10.01 Appointment, Powers and Immunities . . . . . . . . . 210
10.02 Reliance by Agent . . . . . . . . . . . . . . . . . . 211
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . 211
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . 211
10.05 Indemnification . . . . . . . . . . . . . . . . . . . 211
10.06 Non-Reliance on Agent and Other Banks . . . . . . . . 212
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . 212
10.08 Resignation or Removal of Agent . . . . . . . . . . . 212
SECTION 11. GUARANTEE . . . . . . . . . . . . . . . . . . . . . 213
11.01 Guarantee . . . . . . . . . . . . . . . . . . . . . . 213
11.02 Obligations Unconditional . . . . . . . . . . . . . . 213
11.03 Reinstatement . . . . . . . . . . . . . . . . . . . . 213
11.04 Subrogation . . . . . . . . . . . . . . . . . . . . . 214
11.05 Remedies . . . . . . . . . . . . . . . . . . . . . . 214
11.06 Continuing Guarantee . . . . . . . . . . . . . . . . 214
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 214
CREDIT AGREEMENT
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<PAGE>
<PAGE> -158-
12.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . 214
12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . 214
12.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . 215
12.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . 215
12.05 Assignments and Participations . . . . . . . . . . . 216
12.06 Survival . . . . . . . . . . . . . . . . . . . . . . 217
12.07 Captions . . . . . . . . . . . . . . . . . . . . . . 218
12.08 Counterparts . . . . . . . . . . . . . . . . . . . . 218
12.09 Governing Law; Jurisdiction; Service of Process;
Waiver of Jury Trial; Etc. . . . . . . . . . . . . . . 218
12.10 Successors and Assigns . . . . . . . . . . . . . . . 219
12.11 Judgment Currency. . . . . . . . . . . . . . . . . . 219
12.12 Cancellation of Existing Credit Agreements . . . . . 219
Schedule I - List of Indebtedness
Schedule II - List of Certain Liens
Schedule III - Subsidiaries
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B-1 - Form of Opinion of Special Illinois Counsel
EXHIBIT B-2 - Form of Opinion of Dale L. Matschullat, Esq.,
general counsel to the Company and its
Subsidiaries
EXHIBIT C - Form of Opinion of Special New York Counsel to the
Banks and the Agent
EXHIBIT D - [Intentionally Omitted]
EXHIBIT E - Form of Money Market Quote Request
EXHIBIT F - Form of Money Market Quote
EXHIBIT G-1 - Form of Designation Letter
EXHIBIT G-2 - Form of Termination Letter
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -159-
FIVE-YEAR CREDIT AGREEMENT dated as of June 12, 1995 among:
NEWELL CO., a corporation duly organized and validly existing under
the laws of the State of Delaware (together with its successors, the
"Company"); each of the banks which is a signatory hereto (together
with its successors and permitted assigns, individually, a "Bank" and,
collectively, the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
The Company has requested that the Banks make loans to the
Company and certain designated Subsidiaries of the Company in United
States Dollars and in other currencies in an aggregate principal
amount not exceeding $550,000,000 at any one time outstanding, and the
Banks are prepared to make such loans upon the terms hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this
Section 1 or in other provisions of this Agreement in the singular to
have the same meanings when used in the plural and vice versa):
"Adjusted Operating Income" shall mean, for any period, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) the sum of (i) operating
income for such period plus (ii) net income (or minus in the case of
any net loss) from discontinued operations for such period plus (iii)
interest and dividends received in cash during such period; provided
that there shall be excluded from Adjusted Operating Income any income
of any Person that accrued prior to the date it becomes a Subsidiary
of the Company or is merged into or consolidated with the Company or
any Subsidiary of the Company.
"Agent's Account" shall mean (a) in respect of (i) Dollars,
account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, (ii) Belgian Francs, account
number 550877160077 maintained by Chase with Banque Paribas Belgique
S.A. at World Trade Center Blvd., Emile Jacomain 162 BTE 2, 1210
Brussels, Belgium, (iii) Canadian Dollars, account number 1035908
maintained by Chase with Bank of Montreal at 34 Beaupre Place
Boneventure, Montreal, Quebec, Canada, (iv) French Francs, account
number 001014421280 maintained by Chase with Societe Generale at 29
Boulevard Haussmann, 75009 Paris, France, (v) Deutschemarks, account
number 400887330900 maintained by Chase with Commerzbank, A.G., Neue
Mainzer Strasse 32-36, 60311 Frankfurt am Main 1, Germany, (vi)
Italian Lira, account number 15392/018 maintained by Chase with Cassa
di Risparmio Provincie Lombarde S.p.A. at Via Monte di Pieta, 8-1
20121 Milan, Italy, (vii) Japanese Yen, account number 653-0418102
maintained by Chase with The Bank of Tokyo at Nihombashi, 6-3
Nihombashi Hongokucho, 1-chome, Chuo-ku, Tokyo 103-91, Japan and
(viii) Pounds Sterling, account number 440/00/04403657 maintained by
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -160-
Chase with National Westminster Bank PLC at National Westminster
Tower, 25 Old Broad Street, London EC2, England or (b) any other
account in respect of any Alternative Currency as the Agent shall
designate in a notice to the Company and the Banks.
"Agreed Alternative Currency" shall mean at any time any of
Belgian Francs, Canadian Dollars, French Francs, Deutschemarks,
Italian Lira, Japanese Yen and Pounds Sterling, so long as at such
time, (i) such Currency is dealt with in the London interbank deposit
market, (ii) such Currency is freely transferable and convertible into
Dollars in the London foreign exchange market and (iii) no central
bank or other governmental authorization in the country of issue of
such Currency is required to permit use of such Currency by any Bank
for making any Loan hereunder and/or to permit the relevant Borrower
to borrow and repay the principal thereof and to pay the interest
thereon, unless such authorization has been obtained.
"Alternative Currency" shall mean at any time any Agreed
Alternative Currency and any other currency (other than Dollars) so
long as at such time, (i) such Currency is dealt with in the London
interbank deposit market, (ii) such Currency is freely transferable
and convertible into Dollars in the London foreign exchange market and
(iii) no central bank or other governmental authorization in the
country of issue of such Currency is required to permit use of such
Currency by any Bank for making any Loan hereunder and/or to permit
the relevant Borrower to borrow and repay the principal thereof and to
pay the interest thereon, unless such authorization has been obtained.
"Applicable Lending Office" shall mean (i) for each Bank and
for each Type and Currency of Loan to any U.S. Borrower, the lending
office of such Bank (or of an affiliate of such Bank) designated for
such Type and Currency of Loan on the signature pages hereof or such
other office of such Bank (or of an affiliate of such Bank) as such
Bank may from time to time specify to the Agent and the Company and
(ii) for each Bank and for each Type and Currency of Loan to any
Foreign Borrower, the lending office of such Bank (or of an affiliate
of such Bank) as such Bank shall specify to the Agent and the Company.
CREDIT AGREEMENT
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<PAGE>
<PAGE> -161-
"Applicable Margin" shall mean:
(a) with respect to Base Rate Loans, 0%; and
(b) with respect to Eurodollar Loans, 0.30%;
provided that if the financial statements most recently delivered to
the Agent under Section 8.01(a) hereof (or until the first financials
are delivered under Section 8.01(a) hereof, the quarterly financials
as at March 31, 1995 referred to in Section 7.02(b) hereof) shall
demonstrate that the Interest Coverage Ratio for the fiscal quarter of
the Company to which such financial statements relate shall fall
within any of the ranges set forth below, then the term "Applicable
Margin" shall, with respect to each Eurodollar Loan, be decreased to
the rate set forth below opposite such range during the fiscal quarter
commencing immediately following the day on which such financial
statements were delivered to the Agent under Section 8.01(a) hereof:
Interest Applicable
Coverage Ratio Margin
-------------- ----------
5.5 to 1 or 0.17%
greater
less than 5.5 to 1 0.25%
but 3.5 to 1 or
greater
provided that, the Applicable Margin with respect to Eurodollar Loans
for the period from the date hereof to and including June 30, 1995
shall be 0.17%; and provided further that, for any day on which the
Applicable Margin under the foregoing provisions would be 0.25% or
0.30% (but not 0.17%) and more than 50% of the aggregate amount of the
Commitments is utilized (for which purpose, Money Market Loans shall
not constitute utilization), the Applicable Margin with respect to
each Eurodollar Loan shall be increased by 0.0625% over what it
otherwise would have been under the foregoing provisions of this
definition.
"Approved Borrower" shall mean any Wholly Owned Subsidiary
of the Company as to which a Designation Letter has been delivered to
the Agent and as to which a Termination Letter shall not have been
delivered to the Agent, which Subsidiary has been approved as a
borrower hereunder by all of the Banks, all in accordance with Section
2.04 hereof.
"ASC Receivables Sale Agreement" shall mean the receivables
sale agreement dated December 3, 1991 among the Company as seller and
collection agent, Asset Securitization Cooperative Corporation as
purchaser and Canadian Imperial Bank of Commerce as administrative
agent, as amended, supplemented and otherwise modified and in effect
from time to time.
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -162-
"Base Rate" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day.
"Base Rate Loans" shall mean Loans which bear interest based
upon the Base Rate.
"Basel Accord" shall mean the proposals for risk-based
capital framework described by the Basel Committee on Banking
Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, supplemented and otherwise
modified and in effect from time to time, or any replacement thereof.
"Basic Documents" shall mean this Agreement, the Notes, each
Designation Letter and each Termination Letter.
"Belgian Francs" shall mean lawful money of the Kingdom of
Belgium.
"Borrowers" shall mean the Company and each Approved
Borrower.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City and (b)
where such term is used in the definition of "Quarterly Dates" in this
Section 1.01 and if such day relates to the giving of notices or
quotes in connection with a LIBOR Auction or to a borrowing of, a
payment or prepayment of principal of or interest on, or an Interest
Period for, a LIBOR Loan or a LIBOR Market Loan or a notice by the
Company with respect to any such borrowing, payment, prepayment or
Interest Period, also on which dealings in deposits are carried out in
the London interbank market and (c) if such day relates to a borrowing
of, a payment or prepayment of principal of or interest on, or an
Interest Period for, any Loan denominated in an Alternative Currency,
or a notice by the Company with respect to any such borrowing,
payment, prepayment or Interest Period, also on which foreign exchange
trading is carried out in the London interbank market and on which
banks are open in the place of payment in the country in whose
Currency such Loan is denominated.
"Canadian Dollars" shall mean lawful money of Her Majesty in
right of Canada.
"Capital Assets" shall mean all property, plant or equipment
which has been reflected in property, plant or equipment in any
consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP.
"Capital Lease Obligations" shall mean, as to any Person,
the obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or
personal property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person
under GAAP (including Statement of Financial Accounting Standards No.
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13 of the Financial Accounting Standards Board) and, for purposes of
this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans in an aggregate amount at any one
time outstanding equal to the amount set opposite such Bank's name on
the signature pages hereof under the caption "Commitment" (as the same
may be reduced pursuant to Section 2.05 hereof). The original
aggregate principal amount of the Commitments is $550,000,000.
"Commitment Termination Date" shall mean the date five years
after the date hereof; provided that, if such date is not a Business
Day, the Commitment Termination Date shall be the next preceding
Business Day.
"Currency" shall mean Dollars or any Alternative Currency.
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designation Letter" shall have the meaning assigned to such
term in Section 2.04(a) hereof.
"Determination Date" shall mean, for any Disposition, the
last day of the fiscal quarter ending on or immediately preceding the
date of such Disposition.
"Deutschemarks" shall mean lawful money of the Federal
Republic of Germany.
"Disposition" shall have the meaning assigned to that term
in Section 8.07 hereof.
"Disposition Period" shall mean, for any Disposition, a
period of twelve months ending on the date of such Disposition.
"Dollar Equivalent" shall mean, with respect to any Loan
denominated in an Alternative Currency, the amount of Dollars that
would be required to purchase the amount of the Alternative Currency
of such Loan on the date such Loan is requested (or, in the case of
Money Market Loans, the date of the related Money Market Quote
Request), based upon the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/100 of 1%), as determined by the Agent, of
the spot selling rate at which the Reference Banks offer to sell such
Alternative Currency for Dollars in the London foreign exchange market
at approximately 11:00 a.m. London time for delivery two Business Days
later.
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"Dollars" and "$" shall mean lawful money of the United
States of America.
"Drawers" shall have the meaning assigned to that term in
the definition herein of the term "Existing Credit Agreements".
"Environmental Affiliate" shall mean, as to any Person, any
other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person may have retained, assumed or
otherwise become liable (contingently or otherwise), whether by
contract, operation of law or otherwise; provided that each Subsidiary
of such Person, and each former Subsidiary or division of such Person
transferred to another Person, shall in any event be an "Environmental
Affiliate" of such Person.
"Environmental Claim" shall mean, with respect to any
Person, any notice, claim, demand or other communication (whether
written or oral) by any other Person alleging or asserting liability
of such Person for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, or release into the environment, of
any hazardous material at any location, whether or not owned by such
Person, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, 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, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as the
Company or is under common control (within the meaning of
Section 414(c) of the Code) with the Company.
"Event of Default" shall have the meaning assigned to that
term in Section 9 hereof.
"Existing Credit Agreements" shall mean (a) the Amended and
Restated Credit Agreement dated as of August 13, 1993, amended and
restated as of November 19, 1993, among the Company, Anchor Hocking
Corporation, a Delaware corporation, Newell Operating Company, a
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Delaware corporation (the "Drawers"), each of the banks party thereto
and Chase, as agent for the banks thereunder, providing that said
banks extend credit to the Company and the Drawers in an aggregate
principal or face amount not exceeding $300,000,000 at any one time
outstanding, (b) the 364-Day Credit Agreement dated as of November 19,
1993 among the Company, the Drawers, each of the banks party thereto
and Chase, as agent for the banks thereunder, providing that said
banks extend credit to the Company and the Drawers in an aggregate
principal or face amount not exceeding $100,000,000 at any one time
outstanding and (c) the 364-Day Credit Agreement dated as of August
11, 1994 among the Company, the Drawers, each of the banks party
thereto and Chase, as agent for the banks thereunder, providing that
said banks extend credit to the Company and the Drawers in an
aggregate principal or face amount not exceeding $100,000,000 at any
one time outstanding, each as amended, supplemented and otherwise
modified and in effect from time to time.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, 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 Business Day next succeeding such day,
provided that (i) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if such
rate is not so published for any day, the Federal Funds Rate for such
day shall be the average rate charged to Chase on such day on such
transactions as determined by the Agent.
"Final Risk-Based Capital Guidelines" shall mean (i) the
Final Risk-Based Capital Guidelines of the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R.
Part 225, Appendix A) and (ii) the Final Risk-Based Capital Guidelines
of the Office of the Comptroller of the Currency, and any successor or
supplemental regulations (12 C.F.R. Part 3, Appendix A), and any
successor regulations, in each case, as amended, supplemented and
otherwise modified and in effect from time to time.
"Foreign Borrower" shall mean any Approved Borrower that is
not a U.S. Borrower.
"Foreign Currency Equivalent" shall mean, with respect to
any amount in Dollars, the amount of any Alternative Currency that
could be purchased with such amount of Dollars using the foreign
exchange rate(s) specified in the definition of the term "Dollar
Equivalent", as determined by the Agent.
"French Francs" shall mean lawful money of the Republic of
France.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the
last sentence of Section 1.02(a) hereof, are to be used in making the
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calculations for purposes of determining compliance with the
provisions of this Agreement.
"Guarantee" of any Person shall mean any guarantee,
endorsement, contingent agreement to purchase or to furnish funds for
the payment or maintenance of, or any other contingent liability on or
with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any other Person (including, without
limitation, the liability of such Person in respect of the
Indebtedness of any partnership of which such Person is a general
partner), or the guarantee by such Person of the payment of dividends
or other distributions upon the stock of any other Person, or the
agreement by such Person to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily
for the purpose of enabling any other Person to make payment of its
obligations or to assure a creditor against loss, and the verb
"Guarantee" shall have a correlative meaning, provided that the term
"Guarantee" shall not include endorsements for collection or deposits
in the ordinary course of business.
"Indebtedness" shall mean, as to any Person at any date
(without duplication): (i) indebtedness created, issued, incurred or
assumed by such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments; (ii) all obligations of such
Person to pay the deferred purchase price of property or services,
excluding, however, trade accounts payable (other than for borrowed
money) arising in, and accrued expenses incurred in, the ordinary
course of business of such Person so long as such trade accounts
payable are paid within 120 days of the date the respective goods are
delivered or the services are rendered; (iii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; (iv) all Indebtedness of
others Guaranteed by such Person; (v) all Capital Lease Obligations;
(vi) the Investment Amount (if any); (vii) reimbursement obligations
of such Person (whether contingent or otherwise) in respect of bankers
acceptances, surety or other bonds and similar instruments (other than
commercial, standby or performance letters of credit); and
(viii) unpaid reimbursement obligations of such Person (other than
contingent obligations) in respect of commercial, standby or
performance letters of credit.
"Indenture" shall mean the Indenture dated as of April 15,
1992 between the Company and Chase, as trustee, as amended and in
effect from time to time.
"Interest Coverage Ratio" shall mean, for any period, the
ratio of (i) the Adjusted Operating Income for such period to
(ii) Interest Expense for such period.
"Interest Expense" shall mean, for any period, the sum, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of (a) all interest paid
during such period in cash, or accrued during such period as an
expense, in respect of Indebtedness (including, without limitation,
imputed interest on Capital Lease Obligations and amortization of
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original issue discount) plus (b) all fees or commissions and net
losses payable during such period in respect of any bankers
acceptances, surety bonds, letters of credit or similar instruments
plus (c) the aggregate amount of fees and expenses paid by the Company
during such period pursuant to Article V of the ASC Receivables Sale
Agreement (other than legal fees and expenses paid pursuant to Section
5.2 thereof and the amount of any Collection Agent Fee (as such term
is defined therein) retained by the Company in its capacity as
Collection Agent (as such term is defined therein) pursuant to Section
5.1.4 thereof) plus (d) comparable fees and expenses paid by the
Company during such period under any other Receivables Sales
Agreement.
"Interest Period" shall mean:
(a) with respect to any LIBOR Loan, each period commencing on
the date such LIBOR Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company (on its own behalf and on behalf of any
other Borrower) may select as provided in Section 2.02 hereof, except
that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month.
(b) With respect to any Base Rate Loan, the period commencing on
the date such Base Rate Loan is made and ending on the date 30 days
thereafter.
(c) With respect to any Set Rate Loan, the period commencing on
the date such Set Rate Loan is made and ending on any Business Day up
to 180 days thereafter, as the Company may select as provided in
Section 2.03(b) hereof.
(d) With respect to any LIBOR Market Loan, the period commencing
on the date such LIBOR Market Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company may select as provided in
Section 2.03(b) hereof, except that each Interest Period which
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise commence before and end after the Commitment Termination
Date, such Interest Period shall not be available hereunder; (ii) each
Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for any LIBO Rate Loans, if such next
succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (iii) notwithstanding
clause (i) above, no Interest Period for any LIBO Rate Loans shall
have a duration of less than one month and, if the Interest Period for
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any such Loans would otherwise be a shorter period, such Loans shall
not be available hereunder.
"Investment Amount" shall mean the amount described in (i)
clause (1) of the definition of "Investment" in the ASC Receivables
Sale Agreement or (ii) any comparable provision in any other
Receivables Sales Agreement.
"Italian Lira" shall mean lawful money of the Republic of
Italy.
"Japanese Yen" shall mean lawful money of Japan.
"Jurisdiction" shall mean, with respect to any Borrower, the
country or countries (including any political subdivision or taxing
authority thereof or therein) under whose laws such Borrower is
organized or where such Borrower is domiciled, resident or licensed or
otherwise qualified to do business or where any significant part of
the Property of such Borrower is located.
"LIBO Base Rate" shall mean, with respect to any LIBO Rate
Loan in any Currency:
(a) the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) appearing on the Screen for such Currency
as the London Interbank Offered Rate for deposits in such
Currency at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the
first day of the Interest Period for such Loan; or
(b) if such rate does not appear on the Screen (or, if the
Screen shall cease to be publicly available or if the information
contained on the Screen, in the Agent's reasonable judgment,
shall cease accurately to reflect such London Interbank Offered
Rate, as reported by any publicly available source of similar
market data selected by the Agent that, in the Agent's reasonable
judgment, accurately reflects such London Interbank Offered
Rate), the LIBO Base Rate shall mean, with respect to any LIBO
Rate Loan for any Interest Period, the arithmetic mean, as
determined by the Agent, of the rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) quoted by each Reference
Bank at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the first
day of the Interest Period for such Loan for the offering by such
Reference Bank to leading banks in the London interbank market of
deposits in such Currency having a term comparable to such
Interest Period and in an amount comparable to the principal
amount of the LIBO Rate Loan to be made by such Reference Bank
(or its Applicable Lending Office, as the case may be) for such
Interest Period; provided that (i) if any Reference Bank is not
participating in any LIBOR Loan, the LIBO Base Rate for such Loan
shall be determined by reference to the amount of the Loan which
such Reference Bank would have made had it been participating in
such Loans, (ii) in determining the LIBO Base Rate with respect
to any LIBOR Market Loan, each Reference Bank shall be deemed to
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have made a LIBOR Market Loan in an amount equal to $1,000,000,
(iii) each Reference Bank agrees to use its best efforts to
furnish timely information to the Agent for purposes of
determining the LIBO Base Rate and (iv) if any Reference Bank
does not furnish such timely information for determination of the
LIBO Base Rate, the Agent shall determine such interest rate on
the basis of timely information furnished by the remaining
Reference Banks.
"LIBO Rate" shall mean, for any LIBO Rate Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to the LIBO Base Rate for the
Interest Period for such Loan divided by 1 minus the Reserve
Requirement for such Loan for such Interest Period.
"LIBO Rate Loans" shall mean LIBOR Loans and LIBOR Market
Loans.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Margins based on the LIBO Rate
pursuant to Section 2.03 hereof.
"LIBOR Loans" shall mean Syndicated Loans interest rates on
which are determined on the basis of LIBO Rates.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates
pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Company or any 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 title retention agreement relating to such asset.
"Loans" shall mean Money Market Loans and Syndicated Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of
(i) the aggregate amount of the Commitments and (ii) if the
Commitments shall have been terminated, the aggregate outstanding
principal amount of all Loans.
"Material Adverse Effect" shall mean a material adverse
effect on (i) the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole), (ii) the ability of the Company or any Approved Borrower that
is a Significant Subsidiary to perform its obligations under any of
the Basic Documents to which it is a party or (iii) the validity or
enforceability of any of the Basic Documents.
"Money Market Borrowing" shall have the meaning assigned to
that term in Section 2.03(b) hereof.
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"Money Market Loan Limit" shall have the meaning assigned to
that term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.03 hereof.
"Money Market Margin" shall have the meaning assigned to
that term in Section 2.03(c)(ii)(C) hereof.
"Money Market Quote" shall have the meaning assigned to that
term in Section 2.03(c) hereof.
"Money Market Quote Request" shall have the meaning assigned
to that term in Section 2.03(b) hereof.
"Money Market Rate" shall have the meaning assigned to that
term in Section 2.03(c)(ii)(D) hereof.
"Multiemployer Plan" shall mean a Plan defined as such in
Section 3(37) of ERISA to which contributions are being made, or have
been made since January 1, 1980 by the Company or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Net Worth" shall mean, at any time, the consolidated
stockholders' equity of the Company and its Subsidiaries determined on
a consolidated basis without duplication in accordance with GAAP.
"Non-Strategic Property" shall mean Property acquired as
part of the acquisition of a business made after the date hereof that
is designated by resolution of the Board of Directors of the Company
adopted no later than six months after such acquisition as non-
strategic Property.
"Notes" shall mean the promissory notes provided for by
Section 2.09 hereof.
"Obligor" shall mean the Company, in its capacity as a
Borrower hereunder and in its capacity as a guarantor of Loans made to
any Approved Borrower under Section 11 hereof, and each Approved
Borrower.
"Other Agreement" shall mean the 364-Day Credit Agreement
dated as of even date herewith among the Company, the banks party
thereto and Chase as agent for such banks, as the same may be modified
and supplemented and in effect from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all its functions under ERISA.
"Person" shall mean an individual, a corporation, a company,
a voluntary association, a partnership, a trust, an unincorporated
organization or a government or any agency, instrumentality or
political subdivision thereof.
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"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and
which is covered by Title IV of ERISA, other than a Multiemployer
Plan.
"Post-Default Rate" shall mean, in respect of any principal
of any Loan or any other amount payable by any Borrower under this
Agreement or any Note which is not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum during the
period commencing on the due date until such amount is paid in full
equal to the sum of 2% plus the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans (provided that, if
such amount in default is principal of a LIBO Rate Loan or a Set Rate
Loan and the due date is a day other than the last day of the Interest
Period therefor, the "Post-Default Rate" for such principal shall be,
for the period commencing on the due date and ending on the last day
of the Interest Period therefor, 2% above the interest rate for such
Loan as provided in Section 3.02 hereof and, thereafter, the rate
provided for above in this definition).
"Pounds Sterling" shall mean lawful money of England.
"Prime Rate" shall mean the rate of interest from time to
time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of Chase
presently located at 1 Chase Manhattan Plaza, New York, New York
10081.
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible (including, without limitation, shares
of capital stock).
"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December, the first of which shall be the
first such day after the date of this Agreement.
"Receivables Sale Agreement" shall mean (i) the
ASC Receivables Sale Agreement and (ii) any other comparable agreement
providing for the periodic sales of accounts receivable.
"Reference Banks" shall mean Chase, Morgan Guaranty Trust
Company of New York and Royal Bank of Canada.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the
same may be amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Bank,
any change after the date of this Agreement in United States Federal,
state or foreign law or regulations (including Regulation D) or the
adoption or making after such date of any interpretations, directives
or requests applying to a class of banks including such Bank of or
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under any United States Federal, state or foreign law or regulations
(whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" shall mean, for any Interest Period
for any LIBO Rate Loan, the effective maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation
D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO
Base Rate is to be determined or (ii) any category of extensions of
credit or other assets which includes LIBO Rate Loans.
"Screen" shall mean, with respect to any Currency, the
relevant Telerate Page on which appears the London Interbank Offered
Rate for deposits in such Currency; provided that, if there is no such
Telerate Page, the relevant Reuters Screen Page will be substituted.
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Rates pursuant to Section 2.03
hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Money Market Rates
pursuant to a Set Rate Auction.
"Significant Subsidiary" shall mean, at any time, any
Subsidiary of the Company if the revenues of such Subsidiary and its
Subsidiaries for the four consecutive fiscal quarters of such
Subsidiary most recently ended (determined on a consolidated basis
without duplication in accordance with GAAP and whether or not such
Person was a Subsidiary of the Company during all or any part of the
fiscal period of the Company referred to below) exceed an amount equal
to 7-1/2% of the revenues of the Company and its Subsidiaries for the
four consecutive fiscal quarters of the Company most recently ended
(determined on a consolidated basis without duplication in accordance
with GAAP and including such Subsidiary and its Subsidiaries on a pro
forma basis of such Subsidiary was not a Subsidiary of the Company).
"Subsidiary" of any Person shall mean any corporation of
which at least a majority of the outstanding shares of stock having by
the terms thereof ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person and/or one or more of the Subsidiaries of
such Person. "Wholly-Owned Subsidiary" shall mean any such
corporation of which all such shares, other than directors' qualifying
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shares or shares held by nominees to satisfy any requirement as to
minimum number of shareholders, are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof.
"Syndicated Notes" shall mean the promissory notes provided
for by Section 2.09(a) hereof.
"Taxes" shall have the meaning assigned to such term in
Section 5.06(a) hereof.
"Termination Letter" shall have the meaning assigned to such
term in Section 2.04(a) hereof.
"Total Capital" shall mean the sum of (i) Net Worth plus
(ii) Total Indebtedness.
"Total Consolidated Assets" shall mean, as at any time, the
total of all the assets appearing on the consolidated balance sheet of
the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles applicable to the type of
business in which the Company and such Subsidiaries are engaged, and
may be determined as of a date, selected by the Company, not more than
sixty days prior to the happening of the event for which such
determination is being made.
"Total Indebtedness" shall mean, as at any time, the total
Indebtedness of the Company and its Subsidiaries determined on a
consolidated basis without duplication.
"Type" shall have the meaning assigned to such term in
Section 1.03 hereof.
"U.S. Borrower" shall mean the Company and any Approved
Borrower that is incorporated under the laws of the United States of
America or any State thereof or the District of Columbia.
"Wholly-Owned Subsidiary" shall have the meaning assigned to
such term in the definition of the term "Subsidiary".
1.02 Accounting Terms and Determinations.
(a) All accounting terms used herein shall be interpreted,
and, unless otherwise disclosed to the Banks in writing at the time of
delivery thereof in the manner described in subsection (b) below, all
financial statements and certificates and reports as to financial
matters required to be delivered to the Banks hereunder shall be
prepared, in accordance with generally accepted accounting principles
applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Banks hereunder after
the date hereof (or, until such financial statements are furnished,
consistent with those used in the preparation of the financial
statements referred to in Section 7.02(a) hereof). All calculations
made for the purposes of determining compliance with the terms of
Sections 8.07(a)(vii), 8.10 and 8.11 hereof shall, except as otherwise
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expressly provided herein, be made by application of generally
accepted accounting principles applied on a basis consistent with
those used in the preparation of the annual or quarterly financial
statements furnished to the Banks pursuant to Section 8.01 hereof (or,
until such financial statements are furnished, consistent with those
used in the preparation of the financial statements referred to in
Section 7.02(a) hereof) unless (i) the Company shall have objected to
determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements
delivered under Section 8.01 hereof, shall mean the financial
statements referred to in Section 7.02(a) hereof).
(b) The Company shall deliver to the Banks at the same time
as the delivery of any annual or quarterly financial statement under
Section 8.01 hereof (i) a description in reasonable detail of any
material variation between the application of accounting principles
employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference
between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the
Company shall not change the last day of its fiscal year from
December 31, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30,
respectively.
1.03 Types of Loans. Loans hereunder are distinguished by
"Type" and by "Currency". The "Type" of a Loan refers to whether such
Loan is a Base Rate Loan, a LIBOR Loan, a Set Rate Loan or a LIBOR
Market Loan, each of which constitutes a Type. Loans may be
identified by both Type and Currency.
SECTION 2. COMMITMENTS.
2.01 Syndicated Loans. Each Bank severally agrees, on the
terms of this Agreement, to make loans to any Borrower in Dollars or
in any of the Agreed Alternative Currencies during the period from and
including the date hereof to and including the Commitment Termination
Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of such Bank's Commitment as then in
effect. Subject to the terms of this Agreement, during such period
the Company may borrow, repay and reborrow the amount of the
Commitments by means of Base Rate Loans in Dollars and LIBOR Loans in
Dollars or any Agreed Alternative Currency; provided that the
aggregate outstanding principal amount of all Syndicated Loans at any
one time shall not exceed the aggregate amount of the Commitments at
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such time; and provided, further, that there may be no more than
twenty (20) different Interest Periods for both Syndicated Loans and
Money Market Loans outstanding at the same time (for which purpose
Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous). For
purposes of determining whether the amount of any borrowing under this
Section 2.01 would, together with all other outstanding Syndicated
Loans, exceed the Commitments and, for purposes of determining the
unused portion of the Commitments, the amount of each Syndicated Loan
denominated in an Agreed Alternative Currency shall be deemed to be
the Dollar Equivalent of the amount in the Agreed Alternative Currency
of such Loan.
2.02 Borrowings of Syndicated Loans. The Company (on its
own behalf and on behalf of any other Borrower) shall give the Agent
(which shall promptly notify the Banks) notice of each borrowing
hereunder of Syndicated Loans, which notice shall be irrevocable and
effective only upon receipt by the Agent, shall specify with respect
to the Syndicated Loans to be borrowed (i) the Agreed Alternative
Currency or Currencies in which such Loans are to be made and the
account of the relevant Borrower maintained with a commercial bank in
the country in whose Currency such Loans are denominated at which such
Loans are to be made available to such Borrower, (ii) the aggregate
amount in Dollars or, in the case of Loans in Agreed Alternative
Currencies, in such Agreed Alternative Currency, which shall be at
least $1,000,000 in the case of Base Rate Loans and $5,000,000 in the
case of LIBOR Loans (or in either case an integral multiple of
$1,000,000 in excess thereof) or, in the case of LIBOR Loans in an
Agreed Alternative Currency, the Foreign Currency Equivalent thereof
(rounded to the nearest 1000 units of such Alternative Currency),
(iii) the Type and date (which shall be a Business Day) and (iv) (in
the case of LIBOR Loans) the duration of the Interest Period therefor,
and each such notice shall be given not later than 11:00 a.m. New York
time on the day which is not less than the number of Business Days
prior to the date of such borrowing specified below opposite the type
of such Loans:
Type Number of Business Days
Base Rate Loans 0
LIBOR Loans in Dollars 3
LIBOR Loans in Alternative Currencies 5
Not later than 2:00 p.m. New York time (in the case of Loans
denominated in Dollars) or 11:00 a.m. local time in the location of
the Agent's Account (in the case of Loans denominated in an Agreed
Alternative Currency) on the date specified for each borrowing of
Syndicated Loans hereunder, each Bank shall, subject to Section
4.01(a) hereof, make available the amount of the Syndicated Loan or
Loans to be made by it on such date to the Agent, at the Agent's
Account for the Currency of such Loans in immediately available funds,
for account of the relevant Borrower. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement,
promptly be made available to the relevant Borrower by depositing the
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same, in immediately available funds, in an account of the relevant
Borrower designated by the Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the
Company (on its own behalf and on behalf of any other Borrower) may,
as set forth in this Section 2.03, request the Banks to make offers to
make LIBOR Market Loans to such Borrower in Dollars or in any
Alternative Currency or Set Rate Loans in Dollars. The Banks may, but
shall have no obligation to, make such offers and such Borrower may,
but shall have no obligation to, accept any such offers in the manner
set forth in this Section 2.03. Money Market Loans may be
LIBOR Market Loans or Set Rate Loans (each a "Type" of Money Market
Loan), provided that there may be no more than twenty (20) different
Interest Periods for both Syndicated Loans and Money Market Loans
outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous).
(b) When any Borrower wishes to request offers to make
Money Market Loans, the Company (on its own behalf and on behalf of
any other Borrower) shall give the Agent (which shall promptly notify
the Banks) notice in the form of Exhibit E hereto (a "Money Market
Quote Request") so as to be received no later than 11:00 a.m. New York
time on (x) the fifth Business Day prior to the date of borrowing
proposed therein in the case of a LIBOR Auction or (y) the Business
Day next preceding the date of borrowing proposed therein, in the case
of a Set Rate Auction, specifying:
(i) the name of the Borrower, the Currency of such
borrowing and the proposed date of such borrowing (a "Money
Market Borrowing"), which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $5,000,000 (or an integral multiple of
$1,000,000 in excess thereof) or, in the case of Money Market
Loans in an Alternative Currency, the Foreign Currency Equivalent
thereof (rounded to the nearest 1,000 units of such Alternative
Currency);
(iii) the duration of the Interest Period applicable thereto;
and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Rate.
The Company (on its own behalf and on behalf of any other
Borrower) may request offers to make Money Market Loans for up to
fifteen (15) different Interest Periods in a single Money Market Quote
Request; provided that the request for each separate Interest Period
shall be deemed to be a separate Money Market Quote Request for a
separate Money Market Borrowing. Except as otherwise provided in the
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preceding sentence, no Money Market Quote Request shall be given
within five Business Days of any other Money Market Quote Request.
(c) (i) Any Bank may, by notice to the Agent in the form
of Exhibit F hereto (a "Money Market Quote"), submit an offer to make
a Money Market Loan in response to any Money Market Quote Request;
provided that, if the request under Section 2.03(b) hereof specified
more than one Interest Period, such Bank may make a single submission
containing a separate offer for each such Interest Period and each
such separate offer shall be deemed to be a separate Money Market
Quote. Each Money Market Quote must be submitted to the Agent not
later than (x) 2:00 p.m. (or, in the case of Money Market Loans in an
Alternative Currency, 11:00 a.m.) New York time on the fourth Business
Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 11:00 a.m. New York time on the proposed date of
borrowing, in the case of a Set Rate Auction; provided that any Money
Market Quote submitted by Chase (or its Applicable Lending Office) may
be submitted, and may only be submitted, if Chase (or such Applicable
Lending Office) notifies the Company of the terms of the offer
contained therein not later than (x) 1:00 p.m. (or, in the case of
Money Market Loans in an Alternative Currency, 10:00 a.m.) New York
time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 10:45 a.m. New York
time on the proposed date of borrowing, in the case of a Set Rate
Auction. Subject to Sections 5.03, 6.03 and 9 hereof, any Money
Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall specify:
(A) the name of the Borrower, the Currency of such
borrowing, the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(x) may be greater than or less than the Commitment of the
quoting Bank, (y) must be in an integral multiple of
$1,000,000 or, in the case of a Money Market Loan in an
Alternative Currency, the Foreign Currency Equivalent
thereof (rounded to the nearest 1,000 units of such
Alternative Currency), and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were
requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed
as a percentage (rounded to the nearest 1/10,000th of 1%) to
be added to or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000th of 1%)
(the "Money Market Rate") offered for each such Money Market
Loan; and
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(E) the identity of the quoting Bank.
No Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Money Market Quote Request and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Company
of all (or some specified minimum) of the principal amount of the
Money Market Loan for which such Money Market Quote is being made;
provided that the submission of any Bank containing more than one
Money Market Quote may be conditioned on the Company not accepting
offers contained in such submission that would result in such Bank
making Money Market Loans pursuant thereto in excess of a specified
aggregate amount (the "Money Market Loan Limit").
(d) The Agent shall (x) in the case of a Set Rate Auction,
as promptly as practicable after the Money Market Quote is submitted
(but in any event not later than 11:15 a.m. New York time) or (y) in
the case of a LIBOR Auction, by 4:00 p.m. (or, in the case of Money
Market Loans in an Alternative Currency, noon) New York time on the
day a Money Market Quote is submitted, notify the Company (which will
promptly notify the relevant Borrower if it is not the Company) of the
terms (i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the
same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Company shall
specify (A) the aggregate principal amount of the Money Market
Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Margins or Money Market Rates, as
the case may be, so offered by each Bank (identifying the Bank that
made each Money Market Quote).
(e) Not later than (x) 11:00 a.m. New York time on the
third Business Day (or, in the case of Money Market Loans in an
Alternative Currency, 2:00 p.m. New York time on the fourth Business
Day) prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) noon New York time on the proposed date of borrowing,
in the case of a Set Rate Auction, the Company shall notify the Agent
of its or the relevant Borrower's if the Borrower is not the Company
acceptance or nonacceptance of the offers so notified to the Company
pursuant to Section 2.03(d) hereof (which notice shall specify the
aggregate principal amount of offers from each Bank for each Interest
Period that are accepted; and the failure of the Company to give such
notice by such time shall constitute non-acceptance) and the Agent
shall promptly notify each affected Bank of the acceptance or non-
acceptance of its offers. The notice by the Agent shall also specify
the aggregate principal amount of offers for each Interest Period that
were accepted. The Company (on its own behalf and on behalf of any
other Borrower) may accept any Money Market Quote in whole or in part
(provided that any Money Market Quote accepted in part from any Bank
shall be in an integral multiple of $1,000,000 or, in the case of a
Money Market Loan in an Alternative Currency, the Foreign Currency
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Equivalent thereof (rounded to the nearest 1,000 units of such
Alternative Currency)); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $5,000,000 (or an integral multiple
of $1,000,000 in excess thereof) or, in the case of a borrowing
of Money Market Loans in an Alternative Currency, the Foreign
Currency Equivalent thereof (rounded to the nearest 1,000 units
of such Alternative Currency);
(iii) acceptance of offers may, subject to clause (v) below,
only be made in ascending order of Money Market Margins or Money
Market Rates, as the case may be; provided that the Company need
not accept on behalf of any Approved Borrower the offer of any
Bank if payment of the interest on the relevant Money Market Loan
would subject such Approved Borrower to the requirement of paying
any additional amounts under Section 5.06(a) hereof or if such
interest payment would be subject to greater restrictions on
deductibility for income tax purposes than the restriction
applicable to interest payments made to other Banks whose offers
are accepted;
(iv) the Company (on its own behalf and on behalf of any
other Borrower) may not accept any offer where the Agent has
advised the Company that such offer fails to comply with
Section 2.03(c)(ii) hereof or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.03(a) hereof); and
(v) the aggregate principal amount of each Money Market
Borrowing from any Bank may not exceed any applicable Money
Market Loan Limit of such Bank.
If offers are made by two or more Banks with the same Money Market
Margins or Money Market Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall
be allocated by the Company among such Banks as nearly as possible (in
an integral multiple of $1,000,000 or, in the case of a Borrowing of
Money Market Loans in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1000 units of such
Alternative Currency)) in proportion to the aggregate principal amount
of such offers. Determinations by the Company of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted in accordance with the terms and conditions of this
Section 2.03 shall, not later than 2:00 p.m. New York time (in the
case of Loans denominated in Dollars) or 11:00 a.m. local time in the
location of the Agent's Account (in the case of Loans denominated in
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an Alternative Currency) on the date specified for the making of such
Loan, make the amount of such Loan available to the Agent at the
Agent's Account for the Currency of such Loan in immediately available
funds. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, promptly be made available to
the relevant Borrower on such date by depositing the same, in
immediately available funds, in an account of the relevant Borrower
designated by the Company.
(g) The amount of any Money Market Loan made by any Bank
shall not constitute a utilization of such Bank's Commitment.
2.04 Borrowings by Approved Borrowers; Designation of
Certain Approved Borrowers.
(a) The Company may, at any time or from time to time,
designate one or more Wholly Owned Subsidiaries as Borrowers hereunder
by furnishing to the Agent a letter (a "Designation Letter") in
duplicate, substantially in the form of Exhibit G-1 hereto, duly
completed and executed by the Company and such Subsidiary. Any such
designation may restrict such Wholly Owned Subsidiary to Money Market
Loans and exclude the applicability of Section 5.06(a) hereof to such
Wholly Owned Subsidiary, all as set forth in the relevant Designation
Letter. Upon approval by all of the Banks (which approval shall not
be unreasonably withheld) of such Subsidiary as an Approved Borrower,
which approval shall be evidenced by the Agent signing and returning
to the Company a copy of such Designation Letter, such Subsidiary
shall be an Approved Borrower. There may be no more than ten Approved
Borrowers at any one time. So long as all principal and interest on
all Loans of any Approved Borrower hereunder have been paid in full,
the Company may terminate its status as an Approved Borrower hereunder
by furnishing to the Agent a letter (a "Termination Letter"),
substantially in the form of
Exhibit G-2 hereto, duly completed and executed by the Company and
such Approved Borrower. Any Termination Letter furnished in
accordance with this Section 2.04 shall be effective upon receipt by
the Agent (which shall promptly notify the Banks), whereupon the Banks
shall promptly deliver to the Company (through the Agent) the Notes of
such former Approved Borrower. Notwithstanding the foregoing, the
delivery of a Termination Letter with respect to any Approved Borrower
shall not terminate any obligation of such Approved Borrower
theretofore incurred (including, without limitation, obligations under
Sections 5.01, 5.05 and 5.06) or the obligations of the Company under
Section 11 hereof with respect thereto.
(b) The Agent is hereby authorized by the Banks (i) to
approve (on behalf of all of the Banks) as an Approved Borrower, and
(ii) to sign and return to the Company a Designation Letter from the
Company with respect to, each of the following Subsidiaries of the
Company:
(1) Newell Operating Company;
(2) Newell Investments, Inc.;
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(3) Newell Consumer Products GmbH (formerly Corning
Consumer GmbH) ("Newell Germany");
(4) Newell Holdings U.K. Limited ("Newell UK");
(5) Newell Limited (formerly Corning Consumer Limited)
("Newell Limited");
(6) Newell Holdings France S.A.S. ("Newell France");
(7) Newell S.A. (formerly Corning Consumer S.A.);
(8) Anchor Hocking Corporation; and
(9) Newell Industries Canada, Inc. ("Newell Canada");
provided that, the Designation Letters with respect to Newell Germany,
Newell UK, Newell Limited, Newell France, Newell S.A. and Newell
Canada only must restrict such Approved Borrowers to Money Market
Loans and may exclude the applicability of Section 5.06(a) hereof.
2.05 Changes of Commitments.
(a) Unless theretofore reduced to such amount pursuant to
paragraphs (b) and (c) below, the aggregate amount of the Commitments
shall automatically be reduced to zero on the Commitment Termination
Date.
(b) The Company shall have the right to terminate or reduce
permanently the amount of the Commitments at any time or from time to
time upon not less than three Business Days' prior notice to the Agent
(which shall promptly notify the Banks) of each such termination or
reduction, which notice shall specify the effective date thereof and
the amount of any such reduction (which shall be in an integral
multiple of $5,000,000) and shall be irrevocable and effective only
upon receipt by the Agent; provided that the Company may not at any
time (i) terminate the Commitments in whole if Syndicated Loans are
then outstanding or (ii) reduce the aggregate amount of the
Commitments below the aggregate outstanding principal amount of the
Syndicated Loans.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.06 Fees. The Company shall pay to the Agent for account
of each Bank a facility fee on the daily average amount of such Bank's
Commitment (whether or not utilized), for the period from and
including the date hereof to but not including the date such
Commitment is terminated, at a rate per annum equal to 0.20%; provided
that if the financial statements most recently delivered to the Agent
under Section 8.01(a) hereof (or, until the first financials are
delivered under Section 8.01(a) hereof, the quarterly financials as at
March 31, 1995 referred to in Section 7.02(b) hereof) shall
demonstrate that the Interest Coverage Ratio for the fiscal quarter of
the Company to which such financial statements relate shall fall
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within any of the ranges set forth below, then the facility fee shall
be decreased to the rate set forth below opposite such range during
the fiscal quarter commencing immediately following the day on which
such financial statements were delivered to the Agent under
Section 8.01(a) hereof:
Interest Facility
Coverage Ratio Fee
-------------- --------
5.5 to 1 or 0.11%
greater
less than 5.5 to 1 0.15%
but 3.5 to 1 or
greater
provided further that the facility fee for the period from the date
hereof to and including June 30, 1995 shall be 0.11%. Accrued
facility fee shall be payable on each Quarterly Date in arrears and on
the earlier of the date the Commitments are terminated and the
Commitment Termination Date.
2.07 Lending Offices. The Loans of each Type and Currency
made by each Bank shall be made and maintained at such Bank's
Applicable Lending Office for Loans of such Type and Currency.
2.08 Several Obligations; Remedies Independent. The
failure of any Bank to make any Syndicated Loan to be made by it on
the date specified therefor shall not relieve any other Bank of its
obligation to make its Syndicated Loan on such date, and no Bank shall
be responsible for the failure of any other Bank to make a Loan to be
made by such other Bank. The amounts payable by any Borrower at any
time hereunder and under its Notes to each Bank shall be a separate
and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it
shall not be necessary for any other Bank or the Agent to consent to,
or be joined as an additional party in, any proceedings for such
purposes.
2.09 Notes.
(a) The Syndicated Loans made by any Bank to any Borrower
shall be evidenced by a single promissory note of the relevant
Borrower in substantially the form of Exhibit A-1 hereto, dated the
date of its delivery to the Agent, payable to such Bank in a principal
amount equal to the amount of its Commitment as originally in effect
on the date hereof and otherwise duly completed. The date, amount,
Type, Currency, interest rate and maturity date of each Syndicated
Loan made by each Bank, and all payments made on account of the
principal thereof, shall be recorded by such Bank on its books and,
prior to any transfer of such Note held by it, endorsed by such Bank
on the schedule attached to such Note or any continuation thereof;
provided that the failure of such Bank to make any such recordation or
endorsement shall not affect the obligations of such Borrower to make
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any payment when due of any amount owing hereunder or under such Note
in respect of the Loans to be evidenced by such Note.
(b) The Money Market Loans made by any Bank to any Borrower
shall be evidenced by a single promissory note of the relevant
Borrower in substantially the form of Exhibit A-2 hereto, dated the
date of its delivery to the Agent, payable to such Bank and otherwise
duly completed. The date, amount, Type, Currency, interest rate and
maturity date of each Money Market Loan made by each Bank to such
Borrower, and all payments made on account of the principal thereof,
shall be recorded by such Bank on its books and, prior to any transfer
of such Note held by it, endorsed by such Bank on the schedule
attached to such Note or any continuation thereof; provided that the
failure of such Bank to make any such recordation or endorsement shall
not affect the obligations of such Borrower to make any payment when
due of any amount owing hereunder or under such Note in respect of the
Loans to be evidenced by such Note.
(c) No Note may be subdivided, whether by exchange for
promissory notes of lesser denominations or otherwise except in
connection with a permitted assignment of a portion of the Loans
evidenced thereby pursuant to Section 12.05(b) hereof.
2.10 Prepayments. Base Rate Loans may be prepaid upon not
less than one Business Day's prior notice to the Agent (which shall
promptly notify the Banks), which notice shall specify the prepayment
date (which shall be a Business Day) and the amount of the prepayment
(which, in the case of partial prepayments, shall be in an integral
multiple of $1,000,000) and shall be irrevocable and effective only
upon receipt by the Agent, provided that interest on the principal of
any Base Rate Loans prepaid, accrued to the prepayment date, shall be
paid on the prepayment date. LIBO Rate Loans or Set Rate Loans may
not be voluntarily prepaid (provided that this sentence shall not
affect any Borrower's obligation to prepay Loans pursuant to Section 9
of this Agreement).
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 Repayment of Loans. Each Borrower hereby promises to
pay to the Agent for account of each Bank the principal amount of each
Loan made by such Bank to such Borrower, and each Loan shall mature,
on the last day of the Interest Period for such Loan.
3.02 Interest.
(a) Each Borrower hereby promises to pay to the Agent for
account of each Bank interest on the unpaid principal amount of each
Loan made by such Bank to such Borrower for the period commencing on
the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(i) if such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time);
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(ii) if such Loan is a LIBOR Loan, the LIBO Rate for such
Loan for the Interest Period therefor plus the Applicable Margin;
(iii) if such Loan is a LIBOR Market Loan, the LIBO Rate for
such Loan for the Interest Period therefor plus (or minus) the
Money Market Margin quoted by the Bank making such Loan in
accordance with Section 2.03 hereof; and
(iv) if such Loan is a Set Rate Loan, the Money Market Rate
for such Loan for the Interest Period therefor quoted by the Bank
making such Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, each Borrower hereby promises to pay to
the Agent for account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank to
such Borrower, and (to the fullest extent permitted by law) on any
other amount payable by such Borrower hereunder or under the Note of
such Borrower held by such Bank to or for account of such Bank, which
shall not be paid in full when due (whether at stated maturity, by
acceleration or otherwise), for the period commencing on the due date
thereof until the same is paid in full.
(b) Accrued interest on each Loan shall be payable on the
last day of the Interest Period therefor and, if such Interest Period
is longer than three months, at three-month intervals following the
first day of such Interest Period, except that interest payable at the
Post-Default Rate shall be payable from time to time on demand.
(c) Promptly after the determination of any LIBO Rate
provided for herein, the Agent shall (i) notify the Banks to which
interest at such LIBO Rate is payable and the Company thereof and (ii)
at the request of the Company, furnish to the Company a copy of the
page of the Screen on the basis of which the relevant LIBO Base Rate
was determined. At any time that the Agent determines the LIBO Rate
on a basis other than using the Screen, the Agent shall promptly
notify the Company.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal of and interest on Loans made in Dollars, and
other amounts (other than the principal of and interest on Loans made
in an Alternative Currency) payable by any Obligor under this
Agreement and the Notes, shall be made in Dollars, and all payments of
principal of and interest on Loans made in an Alternative Currency
shall be made in such Alternative Currency, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent's
Account for such Currency, for account of the Banks, not later than
2:00 p.m. New York time (in the case of Loans denominated in Dollars)
or 11:00 a.m. local time in the location of the Agent's Account (in
the case of Loans denominated in an Alternative Currency), on the date
on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next
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succeeding Business Day), provided that if a new Loan is to be made by
any Bank to any Borrower on a date such Borrower is to repay any
principal of an outstanding Loan of such Bank in the same Currency,
such Bank shall apply the proceeds of such new Loan to the payment of
the principal to be repaid and only an amount equal to the difference
between the principal to be borrowed and the principal to be repaid
shall be made available by such Bank to the Agent as provided in
Section 2.02 hereof or paid by such Borrower to the Agent pursuant to
this Section 4.01, as the case may be.
(b) If any Borrower shall default in the payment when due
of any principal, interest or other amounts to be made by such
Borrower under this Agreement or the Notes, any Bank for whose account
any such payment is to be made may (but shall not be obligated to)
debit the amount of any such payment due such Bank which is not made
by such time to any ordinary deposit account of such Borrower with
such Bank (with notice to the Company and the Agent).
(c) Each Borrower (or, in the case of any Approved
Borrower, the Company on behalf of such Approved Borrower) shall, at
the time of making each payment under this Agreement or any Note for
account of any Bank, specify to the Agent the Loans or other amounts
payable by such Borrower hereunder to which such payment is to be
applied (and in the event that the payor fails to so specify, or if an
Event of Default has occurred and is continuing, such Bank may apply
such payment received by it from the Agent to such amounts then due
and owing to such Bank as such Bank may determine).
(d) Each payment received by the Agent under this Agreement
or any Note for account of any Bank shall be paid promptly to such
Bank, in immediately available funds.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period
of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing from the Banks of Syndicated
Loans under Section 2.01 hereof shall be made from the Banks, each
payment of fees under Section 2.06 hereof shall be made for account of
the Banks, and each reduction of the amount or termination of the
Commitments under Section 2.05 hereof shall be applied to the
Commitments of the Banks, pro rata according to the amounts of their
respective Commitments; (b) each payment of principal of Syndicated
Loans by any Borrower shall be made for account of the Banks pro rata
in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by the Banks; and (c) each payment of interest
on Syndicated Loans by any Borrower shall be made for account of the
Banks pro rata in accordance with the amounts of interest due and
payable to the respective Banks; provided that, if an Event of Default
shall have occurred and be continuing, each payment of principal of
and interest on the Loans and other amounts owing hereunder by any
Borrower shall be made for account of the Banks pro rata in accordance
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with the aggregate amounts of all principal of and interest on the
Loans and all other amounts owing hereunder by such Borrower then due
and payable to the respective Banks.
4.03 Computations. Interest on Set Rate Loans, LIBO Rate
Loans and the fees payable pursuant to Section 2.06 hereof shall be
computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the
period for which payable, and interest on Base Rate Loans shall be
computed on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable.
4.04 Non-Receipt of Funds by the Agent. Unless the Agent
shall have been notified by a Bank or any Borrower (or, in the case of
any Approved Borrower, the Company on behalf of such Approved
Borrower) (each, a "Payor") prior to the time by, and on the date on,
which such Payor is scheduled to make payment to the Agent of (in the
case of a Bank) the proceeds of a Loan to be made by it hereunder or
(in the case of any Borrower) a payment to the Agent for account of
one or more of the Banks hereunder (such payment being herein called
the "Required Payment"), which notice shall be effective upon receipt,
that it does not intend to make the Required Payment to the Agent, the
Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient(s) on such date;
and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the
Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such
amount was so made available by the Agent to but not including the
date the Agent recovers such amount (the "Advance Period") at a rate
per annum equal to (a) if the recipient is a Borrower, the Base Rate
in effect on such day and (b) if the recipient is a Bank, the Federal
Funds Rate in effect on such day; and, if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest thereon
for each day during the Advance Period at a rate per annum equal to
(i) if the Payor is a Borrower, the rate of interest payable on the
Required Payment as provided in the second sentence of Section 3.02(a)
hereof and (ii) if the Payor is a Bank, during the period commencing
on the date such amount was so made available to but excluding the
date three Business Days following such date, the Federal Funds Rate
in effect on such day and, thereafter, the Base Rate in effect on such
day.
4.05 Set-off; Sharing of Payments.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a
Bank may otherwise have, each Bank shall be entitled, at its option,
to offset balances held by it for account of such Obligor at any of
its offices, in Dollars or in any other Currency, against any
principal of or interest on any of such Bank's Loans which is not paid
when due (regardless of whether such balances are then due to such
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Obligor) in which case it shall promptly notify such Obligor (through
notice to the Company) and the Agent thereof, provided that such
Bank's failure to give such notice shall not affect the validity
thereof.
(b) If any Bank shall obtain payment of any principal of or
interest on any Syndicated Loan made by it under this Agreement
through the exercise of any right of set-off, bankers' lien or
counterclaim or similar right or otherwise, and, as a result of such
payment, such Bank shall have received a greater percentage of the
amounts then due hereunder to such Bank in respect of Syndicated Loans
than the percentage received by any other Banks, it shall promptly
purchase from such other Banks participations in (or, if and to the
extent specified by such Bank, direct interests in) the Syndicated
Loans made by such other Banks (or in the interest thereon, as the
case may be) in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all the Banks
shall share the benefit of such excess payment (net of any expenses
which may be incurred by such Bank in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal and
interest on the Syndicated Loans held by each of the Banks. To such
end all the Banks shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. Each Obligor agrees that any
Bank so purchasing a participation (or direct interest) in the
Syndicated Loans made by other Banks (or in the interest thereon, as
the case may be) may exercise all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as
fully as if such Bank were a direct holder of Loans (or in the
interest thereon, as the case may be) in the amount of such
participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to
exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of any Obligor. If
under any applicable bankruptcy, insolvency or other similar law, any
Bank receives a secured claim in lieu of a set-off to which this
Section 4.05 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this
Section 4.05 to share in the benefits of any recovery on such secured
claim.
SECTION 5. YIELD PROTECTION AND ILLEGALITY.
5.01 Additional Costs.
(a) Each Borrower shall pay directly to each Bank from time
to time such amounts as such Bank may determine to be necessary to
compensate such Bank for any costs that such Bank determines are
attributable to its making or maintaining of any LIBO Rate Loans or
its obligation to make any LIBO Rate Loans hereunder, or any reduction
in any amount receivable by such Bank hereunder in respect of any of
such Loans or such obligation (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that:
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(i) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Notes in respect of any of
such Loans (other than taxes imposed on or measured by the
overall net income of such Bank or of its Applicable Lending
Office for any of such Loans by the jurisdiction in which such
Bank has its principal office or such Applicable Lending Office);
or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized
in the determination of the LIBO Rate for such Loan) relating to
any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Bank (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "LIBO Base Rate" in Section 1.01 hereof), or any
commitment of such Bank (including, without limitation, the
Commitment of such Bank hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or
its Commitment.
If any Bank requests compensation from any Borrower under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy
to the Agent), suspend the obligation of such Bank thereafter to make
LIBO Rate Loans until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable), provided that such
suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason of
any Regulatory Change, any Bank either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the
amount of a category of deposits or other liabilities of such Bank
that includes deposits by reference to which the interest rate on LIBO
Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Bank that includes
LIBO Rate Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if
such Bank so elects by notice to the Company (with a copy to the
Agent), the obligation of such Bank to make LIBO Rate Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay
directly to each Bank from time to time on request such amounts as
such Bank may determine to be necessary to compensate such Bank (or,
without duplication, the bank holding company of which such Bank is a
subsidiary) for any costs that it determines are attributable to the
maintenance by such Bank (or any Applicable Lending Office or such
bank holding company), pursuant to any law or regulation or any
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interpretation, directive or request (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or
governmental or supervisory authority implementing at the national
level the Basel Accord (including, without limitation, the Final
Risk-Based Capital Guidelines), of capital in respect of its
Commitment or Loans (such compensation to include, without limitation,
an amount equal to any reduction of the rate of return on assets or
equity of such Bank (or any Applicable Lending Office or such bank
holding company) to a level below that which such Bank (or any
Applicable Lending Office or such bank holding company) would have
achieved with respect to its Commitment or Loans but for such law,
regulation, interpretation, directive or request).
(d) Each Bank shall notify the Company of any event
occurring after the date of this Agreement entitling such Bank to
compensation under paragraph (a) or (c) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after such
Bank obtains actual knowledge thereof. If any Bank fails to give such
notice within 45 days after it obtains actual knowledge of such an
event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such
event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such
Bank does give such notice. Each Bank will furnish to the Company a
certificate setting forth the basis and amount of each request by such
Bank for compensation under paragraph (a) or (c) of this Section 5.01.
Determinations and allocations by any Bank for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to
paragraph (a) or (b) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (c) of this Section 5.01, on its
costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the
amounts required to compensate such Bank under this Section 5.01,
shall be conclusive absent manifest error, provided that such
determinations and allocations are made on a reasonable basis.
(e) Each Bank will designate a different Applicable Lending
Office for the Loans of such Bank affected by any event specified in
paragraphs (a), (b) or (c) of this Section 5.01 or in Section 5.03
hereof if such designation will avoid the need for, or reduce the
amount of, such compensation or suspension, as the case may be, and
will not, in the sole opinion of such Bank, be disadvantageous to such
Bank.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding:
(a) if the LIBO Base Rate for any Currency is to be
determined under paragraph (b) of the definition of "LIBO Base
Rate" and the Agent determines (which determination shall be
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conclusive) that no quotation from any Reference Bank of interest
rates for the relevant deposits referred to in such paragraph (b)
are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest
for LIBO Rate Loans as provided herein; or
(b) if the LIBO Base Rate for any Currency is being
determined under paragraph (b) of the definition of "LIBO Base
Rate" and the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market
Loan, determines), which determination shall be conclusive, and
notify (or notifies, as the case may be) the Agent that the
relevant rates of interest referred to in paragraph (b) of the
definition of "LIBO Base Rate" do not adequately cover the cost
to such Banks (or such quoting Bank) of making or maintaining its
LIBO Rate Loans in such Currency;
then the Agent shall give the Company and each Bank prompt notice
thereof, and so long as such condition remains in effect, the Banks
(or such quoting Bank) shall be under no obligation to make additional
LIBO Rate Loans in such Currency.
5.03 Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to honor its obligation to make or
maintain LIBO Rate Loans hereunder in any Currency, then such Bank
shall promptly notify the Company thereof (with a copy to the Agent)
and such Bank's obligation to make LIBOR Loans in such Currency shall
be suspended until such time as such Bank may again make and maintain
LIBOR Loans in such Currency (in which case the provisions of
Section 5.04 hereof shall be applicable), and such Bank shall no
longer be obligated to make any LIBOR Market Loan in such Currency
that it has offered to make.
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03.
If the obligation of any Bank to make any LIBO Rate Loans in Dollars
shall be suspended pursuant to Section 5.01 or 5.03 hereof (Loans of
such type being herein called "Affected Loans" and such type being
herein called the "Affected Type"), all Loans in Dollars (other than
Money Market Loans) which would otherwise be made by such Bank as
Loans of the Affected Type shall be made instead as Base Rate Loans
(and, if an event referred to in Section 5.01(b) or 5.03 hereof has
occurred and such Bank so requests by notice to the Company with a
copy to the Agent, all Affected Loans of such Bank then outstanding
shall be automatically converted into Base Rate Loans on the date
specified by such Bank in such notice) and, to the extent that
Affected Loans are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Bank's
Affected Loans shall be applied instead to its Base Rate Loans.
5.05 Compensation. Each Borrower shall pay to the Agent
for account of each Bank, upon the request of such Bank through the
Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost
or expense which such Bank determines are attributable to:
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(a) any payment or conversion of a LIBO Rate Loan or a Set
Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9
hereof) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by such Borrower for any reason (excluding
only failure due solely to a default by any Bank or the Agent in
its obligation to provide funds to such Borrower hereunder but
including, without limitation, the failure of any of the
conditions precedent specified in Section 6 hereof to be
satisfied) to borrow a LIBO Rate Loan or a Set Rate Loan from
such Bank on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 or
2.03(b) hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include, in the case of a Loan, an amount equal to
the excess, if any, of (i) the amount of interest which otherwise
would have accrued on the principal amount so paid or converted or not
borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period for such
Loan which would have commenced on the date specified for such
borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the interest component of the amount such Bank
would have bid in the London interbank market for deposits in the
applicable Currency of leading banks (if such Loan is a LIBO Rate
Loan) or in the United States certificate of deposit market for
issuance at face value of certificates of deposit for Dollar deposits
(if such Loan is a Set Rate Loan) in amounts comparable to such
principal amount and with maturities comparable to such period (as
reasonably determined by such Bank).
5.06 Taxes.
(a) Each Borrower agrees to pay to each Bank such
additional amounts as are necessary in order that the net payment of
any amount due to such Bank hereunder after deduction for or
withholding in respect of any Taxes imposed with respect to such
payment will not be less than the amount stated herein to be then due
and payable, provided that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to any Bank hereunder unless such Bank
is, on the date such Borrower became a Borrower hereunder (which,
in the case of the Company and the Approved Borrowers listed in
Section 2.04(b) hereof, means the date hereof and, in the case of
any other Approved Borrower, means the date of the Designation
Letter of such Approved Borrower) or (if later) on the date such
Bank becomes a Bank hereunder as provided in Section 12.05(b)
hereof and on the date of any change in the Applicable Lending
Office of such Bank, entitled to a complete exemption from
withholding or deduction by such Borrower of Taxes on all
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interest to be received by such Bank hereunder in respect of the
Loans made by such Bank to such Borrower, or
(ii) to any such Taxes required to be deducted or withheld
solely by reason of the failure of such Bank to comply with
applicable certification, information, documentation or other
reporting requirements concerning the nationality, residence,
identity or connections with such Borrower's Jurisdiction if such
compliance is required by treaty, statute or regulation as a
precondition to relief or exemption from such Taxes.
For the purposes of this Section 5.06(a), the term "Taxes" shall mean
with respect to any Borrower all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges,
compulsory loans and withholdings whatsoever, and all interest,
penalties or similar amounts with respect thereto, now or hereafter
imposed, assessed, levied or collected by such Borrower's Jurisdiction
on or in respect of the Basic Documents, the principal of and interest
on the Loans and any other amounts payable under any of the Basic
Documents, the recording, registration, notarization or other
formalization of any thereof, the enforcement thereof or the
introduction thereof in any judicial proceedings, or on or in respect
of any payments of principal, interest, premium, charges, fees or
other amounts made on, under or in respect of any thereof (excluding,
however, income or franchise taxes imposed on or measured by the
overall net income or capital of a Bank (or its Applicable Lending
Office) by such Borrower's Jurisdiction as a result of such Bank being
organized under the laws of or resident in such Borrower's
Jurisdiction or of its Applicable Lending Office being located or
carrying on business in such Borrower's Jurisdiction).
(b) Within 30 days after paying any amount to the Agent or
any Bank from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit
such deduction or withholding to any relevant taxing or other
authority, the relevant Borrower shall deliver to the Agent for
delivery to such Bank evidence satisfactory to such Bank of such
deduction, withholding or payment (as the case may be).
SECTION 6. CONDITIONS PRECEDENT.
6.01 Initial Credit Extension. The obligation of the Banks
to make the initial Credit Extension hereunder is subject to the
receipt by the Agent of the following documents, each of which shall
be satisfactory to the Agent in form and substance:
(a) Certified copies of the charter and by-laws of, and all
corporate action taken by, the Company approving this Agreement
and the Notes to be made by the Company, borrowings by the
Company and the guarantee of the Company set forth in Section 11
hereof (including, without limitation, a certificate setting
forth the resolutions of the Board of Directors of the Company
adopted in respect of the transactions contemplated hereby).
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(b) A certificate of the Company in respect of each of the
officers (i) who is authorized to sign this Agreement, the Notes,
Money Market Quote Requests, Designation Letters and Termination
Letters, together with specimen signatures, and (ii) who will,
until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in
connection herewith and with the Notes and the transactions
contemplated hereby and thereby. The Agent and each Bank may
conclusively rely on such certificate until they receive notice
in writing from the Company to the contrary.
(c) An opinion of Schiff, Hardin & Waite, special Illinois
counsel to the Company substantially in the form of Exhibit B-1
hereto (and the Company hereby instructs such counsel to deliver
such opinion to the Banks and the Agent); and an opinion of Dale
L. Matschullat, Esq., general counsel to the Company,
substantially in the form of Exhibit B-2 hereto (and the Company
hereby instructs such counsel to deliver such opinion to the
Banks and the Agent).
(d) An opinion of Milbank, Tweed, Hadley & McCloy, special
New York counsel to the Banks and the Agent, substantially in the
form of Exhibit C hereto.
(e) A Syndicated Note and a Money Market Note for each Bank
duly completed and executed by the Company.
6.02 Initial Credit Extension to any Approved Borrower.
The obligation of the Banks to make the initial Credit Extension
hereunder to any Approved Borrower (including, without limitation, any
Approved Borrower designated pursuant to Section 2.04(b) hereof) is
subject to the receipt by the Agent of the following documents, each
of which shall be satisfactory to the Agent in form and substance:
(a) Certified copies of the charter and by-laws (as
applicable) of such Approved Borrower and all corporate action
taken by such Approved Borrower approving the Designation Letter
of such Approved Borrower, this Agreement and the Notes to be
made by such Approved Borrower and borrowings by such Approved
Borrower (including, without limitation, a certificate setting
forth the resolutions of the Board of Directors of such Approved
Borrower adopted in respect of the transactions contemplated
hereby and thereby).
(b) A certificate of such Approved Borrower in respect of
each of the officers and/or directors (i) who is authorized to
sign the Designation Letter, Notes and Termination Letter (if
any) of such Approved Borrower, together with specimen
signatures, and (ii) who will, until replaced by another officer
or director duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving
notices and other communications in connection herewith and with
the Notes of such Approved Borrower and the transactions
contemplated hereby and thereby. The Agent and each Bank may
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conclusively rely on such certificate until they receive notice
in writing from such Approved Borrower to the contrary.
(c) A Syndicated Note and a Money Market Note for each
Bank, duly completed and executed by such Approved Borrower.
(d) Such other documents as the Agent or any Bank or
special New York counsel to the Banks and the Agent may
reasonably request.
6.03 Initial and Subsequent Credit Extensions. The
obligation of any Bank to make any Credit Extension hereunder
(including, without limitation, the initial Credit Extension
hereunder) is subject to the further conditions precedent that, as of
the date of such Credit Extension and after giving effect thereto and
the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company
and, in the case of a Credit Extension to any Approved Borrower,
such Approved Borrower in Section 7 hereof shall be true on and
as of the date of such Credit Extension with the same force and
effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder (whether on its own
behalf or on behalf of any other Borrower) shall constitute a
certification by the Company to the effect set forth in the preceding
sentence (both as of the date of such notice and, unless the Company
otherwise notifies the Agent prior to the date of such Credit
Extension, as of the date of such Credit Extension).
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Banks that:
Part A. Representations and Warranties of the Company.
7.01 Corporate Existence. Each of the Company and its
Significant Subsidiaries: (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all
material governmental licenses, authorizations, consents and
approvals, necessary to own its assets and carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary except where
failure so to qualify would not have a material adverse effect on the
consolidated financial condition, operations, business or prospects of
the Company and its Subsidiaries (taken as a whole).
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7.02 Financial Condition.
(a) The consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1994 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of Arthur Andersen & Co., heretofore
furnished to each of the Banks, are complete and correct and fairly
present the consolidated financial condition of the Company and its
Subsidiaries as at said date and the consolidated results of their
operations for the fiscal year ended on said date, all in accordance
with generally accepted accounting principles. Neither the Company
nor any of its Subsidiaries had on said date any material contingent
liabilities, material liabilities for taxes, material unusual forward
or long-term commitments or material unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected
or provided for in said balance sheet as at said date.
(b) The consolidated balance sheet of the Company and its
Subsidiaries as at March 31, 1995 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal quarter ended on said
date, heretofore furnished to each of the Banks, are complete and
correct and fairly present the consolidated financial condition of the
Company and its Subsidiaries as at said date and the consolidated
results of their operations for the fiscal quarter ended on said date,
all in accordance with generally accepted accounting principles.
Neither the Company nor any of its Subsidiaries had on said date any
material contingent liabilities, material liabilities for taxes,
material unusual forward or long-term commitments or material
unrealized or anticipated losses from any unfavorable commitments,
except as referred to or reflected or provided for in said balance
sheet as at said date.
(c) Since December 31, 1994, there has been no material
adverse change in the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole).
7.03 Litigation. To the best knowledge and belief of the
Company, there are no legal or arbitral proceedings or any proceedings
by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the
Company or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect.
7.04 No Breach. None of the making or performance of this
Agreement or the Notes, or the consummation of the transactions herein
or therein contemplated, will conflict with or result in a breach of,
or require any consent under, the charter or by-laws of the Company or
any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such
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agreement or instrument, or constitute a tortious interference with
any agreement, or result in the creation or imposition of any Lien
upon any of the revenues or assets of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or
instrument.
7.05 Corporate Action. The Company has all necessary
corporate power and authority to make and perform its obligations
under this Agreement and the Notes of the Company; the making and
performance of this Agreement and the Notes of the Company by the
Company have been duly authorized by all necessary corporate action on
the part of the Company; and this Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the
Notes of the Company when executed and delivered by the Company for
value will constitute, its legal, valid and binding obligation,
enforceable in accordance with their respective terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally.
7.06 Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary for the execution,
delivery or performance by the Company of this Agreement or the Notes
of the Company or for the validity or enforceability of any thereof.
7.07 Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds
of any Credit Extension hereunder will be used in a manner that will
cause the Company to violate said Regulation X or any Bank to violate
said Regulation U.
7.08 ERISA. Each of the Company and each ERISA Affiliate
has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each of its Plans and is (and to
the best of its knowledge in the case of any Multiemployer Plan is) in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability
on account of the termination of any of its Plans to the PBGC or any
of its Plans and has not incurred any withdrawal liability to any
Multiemployer Plan.
7.09 Credit Agreements. Schedule I hereto is a complete
and correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, purchase agreement, Guarantee or
other arrangement (other than a letter of credit) providing for or
otherwise relating to any extension of credit (or commitment for any
extension of credit) to, or Guarantee by, the Company or any
Subsidiary of any of them the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $1,000,000 and the
aggregate principal or face amount outstanding or which may become
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outstanding under each such arrangement is correctly described in said
Schedule I.
7.10 Hazardous Materials. The Company and each of its
Subsidiaries have obtained all permits, licenses and other
authorizations that are required under all Environmental Laws, except
to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms and
conditions of all such permits, licenses and authorizations, and are
also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law
or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a
Material Adverse Effect. Except as heretofore disclosed to the Banks,
there have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in the
possession of the Company or any of its Subsidiaries with respect to
any property or facility now or previously owned or leased by the
Company or any of its Environmental Affiliates which reveal facts or
circumstances that could reasonably be expected to have a Material
Adverse Effect.
7.11 Taxes. The Company and its Subsidiaries are members
of an affiliated group of corporations filing consolidated returns for
Federal income tax purposes, of which the Company is the "common
parent" (within the meaning of Section 1504 of the Code) of such
group. The Company and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion
of the Company, adequate. The United States Federal income tax
returns of the Company and its Subsidiaries have been examined and/or
closed through the fiscal years of the Company and its Subsidiaries
ended on or before December 31, 1985. The Company has not given or
been requested to give a waiver of the statute of limitations relating
to the payment of Federal, state, local and foreign taxes or other
impositions except that with respect to the Company's 1986 and 1987
tax years there has been an extension in the statute of limitations
relating to the payment of Federal taxes through December 31, 1993 and
with respect to the Company's 1988 and 1989 tax years there has been
such an extension through September 15, 1994.
7.12 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of the Company to the Banks in connection with
the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
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light of the circumstances under which they are made, not misleading.
All written information furnished after the date hereof by the Company
and its Subsidiaries to the Banks in connection with this Agreement
and the transactions contemplated hereby will be true, complete and
accurate in every material respect, or (in the case of projections)
based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse
Effect that has not been disclosed herein or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing
furnished to the Banks for use in connection with the transactions
contemplated hereby.
7.13 Subsidiaries. Set forth in Schedule III hereto is a
complete and correct list, as of the date of this Agreement, of all of
the Subsidiaries of the Company, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and
(iii) the nature of the ownership interests held by each such Person
and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule III hereto, (x)
each of the Company and its Subsidiaries owns, free and clear of
Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule
III hereto and (y) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully
paid and nonassessable.
7.14 Compliance with Law. As of the date of this
Agreement, the Company and its Subsidiaries are in material compliance
with all applicable laws and regulations, except to the extent that
failure to comply therewith would not have a Material Adverse Effect.
Part B. Representations and Warranties of the Approved
Borrowers. Each Approved Borrower represents and warrants to the
Banks that:
7.15 Corporate Existence. Such Approved Borrower: (a) is
a corporation duly organized and validly existing under the laws of
the jurisdiction of its incorporation; (b) has all requisite corporate
power, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its assets and carry on its
business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary except
where failure so to qualify would not have a material adverse effect
on the consolidated financial condition, operations, business or
prospects of such Approved Borrower and its Subsidiaries (taken as a
whole).
7.16 No Breach. None of the making or performance of the
Designation Letter of such Approved Borrower, this Agreement or the
Notes of such Approved Borrower, or the consummation of the
transactions herein or therein contemplated, will conflict with or
result in a breach of, or require any consent under, the charter or
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by-laws of such Approved Borrower or any applicable law or regulation,
or any order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument to which such
Approved Borrower or any of its Subsidiaries is a party or by which
any of them is bound or to which any of them is subject, or constitute
a default under any such agreement or instrument, or constitute a
tortious interference with any agreement, or result in the creation or
imposition of any Lien upon any of the revenues or assets of such
Approved Borrower or any of its Subsidiaries pursuant to the terms of
any such agreement or instrument.
7.17 Corporate Action. Such Approved Borrower has all
necessary corporate power and authority to make and perform its
obligations under the Designation Letter of such Approved Borrower,
this Agreement and the Notes of such Approved Borrower and to borrow
hereunder; the making and performance of the Designation Letter of
such Approved Borrower, this Agreement and the Notes of such Approved
Borrower and the borrowing by such Approved Borrower hereunder have
been duly authorized by all necessary corporate action on its part;
and the Designation Letter of such Approved Borrower and this
Agreement constitute, and the Notes of such Approved Borrower when
executed and delivered by such Approved Borrower for value will
constitute, its legal, valid and binding obligation, enforceable in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights
generally.
7.18 Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency which have not been obtained are
necessary for the execution, delivery or performance by such Approved
Borrower of the Designation Letter of such Approved Borrower, this
Agreement or the Notes of such Approved Borrower or for the validity
or enforceability of any thereof or for the borrowing by such Approved
Borrower hereunder.
7.19 Taxes on Payments of Approved Borrowers. Except as
disclosed to the Agent and the Banks by the Company prior to the
delivery of the Designation Letter of such Approved Borrower, as of
the date of such Designation Letter (a) there are no Taxes of such
Approved Borrower's Jurisdiction imposed by or in the nature of
withholding or otherwise, which are imposed on any payment to be made
by such Approved Borrower pursuant hereto or on the Notes of such
Approved Borrower, or are imposed on or by virtue of the execution,
delivery or enforcement of the Designation Letter of such Approved
Borrower, this Agreement or the Notes of such Approved Borrower, (b)
such Approved Borrower is permitted to make payments pursuant to this
Agreement and the Notes free and clear of all such Taxes and (c) any
exemption from the withholding of such Taxes that would, but for the
existence of the Guarantee of the Company under Section 11 hereof, be
available under a tax treaty to which the Borrower's Jurisdiction and
the jurisdiction of the organization of any Bank are parties will not
be made unavailable by the existence of such Guarantee of the Company.
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7.20 Choice of Law. In any action or proceeding in any
court of or in such Approved Borrower's Jurisdiction arising out of or
relating to this Agreement, the Designation Letter of such Approved
Borrower or the Notes of such Approved Borrower, such court would
recognize and give effect to the first sentence of Section 12.09(a)
hereof.
7.21 Process Agent; Etc. The appointment of the Company as
Process Agent by such Approved Borrower under Section 12.09(a) hereof
and under the Designation Letter of such Approved Borrower is a valid
appointment and the empowerment in such Approved Borrower's
Designation Letter of the Company to act as such Approved Borrower's
representative and attorney-in-fact for the purposes of signing
documents and giving and receiving notices (including notices of
borrowing under Section 2 hereof) and for the purposes of modifying or
amending any provision of this Agreement is a valid and binding
empowerment.
7.22 Qualification to Do Business. It is not necessary
under the laws of such Approved Borrower's Jurisdiction (i) in order
to enable the Agent or any Bank to enforce its rights against such
Approved Borrower under this Agreement or the Notes of such Approved
Borrower, or (ii) by reason of the execution, delivery or performance
of the Designation Letter of such Approved Borrower, this Agreement or
the Notes of such Approved Borrower, that the Agent or any Bank should
be licensed, qualified or entitled to carry on business in such
Approved Borrower's Jurisdiction.
7.23 Doing Business, Etc. Neither the Agent nor any Bank
is or will be deemed to be resident, domiciled, carrying on business
or, except as disclosed to the Agent and the Banks by the Company
prior to the delivery of the Designation Letter of such Approved
Borrower, subject to Taxes of such Approved Borrower's Jurisdiction
solely by reason of the execution, delivery, performance or
enforcement of this Agreement, the Designation Letter of such Approved
Borrower or the Notes of such Approved Borrower.
7.24 Immunity. Neither such Approved Borrower nor any of
its Property has any immunity (sovereign or otherwise) from
jurisdiction of any court of or in such Approved Borrower's
Jurisdiction or from set-off or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) under the laws of such
Approved Borrower's Jurisdiction.
7.25 Stamp Taxes. To ensure the legality, validity,
enforceability or admissibility in evidence in such Approved
Borrower's Jurisdiction of this Agreement, the Designation Letter of
such Approved Borrower or the Notes of such Approved Borrower, it is
not necessary that this Agreement, such Designation Letter or such
Notes or any other document be filed or recorded with any court or
other authority in such Approved Borrower's Jurisdiction or that any
stamp or similar tax be paid on or in respect of this Agreement, such
Designation Letter or such Notes, or any other document other than
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such filings and recordations that have already been made and such
stamp or similar taxes that have already been paid.
7.26 Legal Form. Each of this Agreement, the Designation
Letter of such Approved Borrower and the Notes of such Approved
Borrower is in proper legal form under the laws of such Approved
Borrower's Jurisdiction for the enforcement thereof against such
Approved Borrower.
7.27 No Insolvency. No event of the type referred to in
clause (e), (f) or (g) of Section 9 hereof has occurred with respect
to such Approved Borrower.
SECTION 8. COVENANTS OF THE COMPANY. The Company agrees
that, so long as any of the Commitments are in effect and until
payment in full of all Loans hereunder, all interest thereon and all
other amounts payable by each Borrower hereunder:
8.01 Financial Statements. The Company shall deliver to
each of the Banks:
(a) as soon as available and in any event within 60 days
after the end of each of the fiscal quarterly periods of each
fiscal year of the Company, consolidated statements of income,
cash flows and stockholders' equity of the Company and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form
the corresponding figures for the corresponding period in the
preceding fiscal year, and accompanied by a certificate of a
senior financial officer of the Company, which certificate shall
state that said financial statements fairly present the
consolidated financial condition and results of operations of the
Company and its Subsidiaries, in accordance with generally
accepted accounting principles, as at the end of (and for) such
period (subject to normal year-end audit adjustments).
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting
forth in each case in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by an opinion
thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said financial
statements fairly present the consolidated financial condition
and results of operations of the Company and its Subsidiaries, in
accordance with generally accepted accounting principles, as at
the end of (and for) such fiscal year, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default.
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(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any,
which the Company shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange.
(d) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements,
reports and proxy statements so mailed.
(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to know that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan of the Company have occurred or exist, a
statement signed by a senior financial officer of the Company
setting forth details respecting such event or condition and the
action, if any, which the Company or any ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Company or such
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence
of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302
of ERISA shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of
the Code);
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any
Plan if at the date of such filing or termination the fair
market value of the assets of such Plan, as determined by
the Plan's independent actuaries, is exceeded by the present
value as determined by such actuaries as of such date, of
benefit commitments under such Plan by more than $1,000,000
(including any prior terminations subject to this
provision);
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan of the
Company, of the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan causing any withdrawal liability
in excess of $500,000 (including any prior withdrawals
subject to this provision), or the receipt by the Company or
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any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
and
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days.
(f) promptly after the Company knows or has reason to know
that any Default has occurred, a notice of such Default,
describing the same in reasonable detail.
(g) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required
to be filed under ERISA) as any Bank or the Agent may reasonably
request.
The Company will furnish to each Bank, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of the Company (i) to the
effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in
compliance with Sections 8.06, 8.07(a)(vii), 8.08(xiii), 8.10 and 8.11
hereof as of the end of the respective fiscal quarter or fiscal year.
8.02 Litigation. The Company shall promptly give to each
Bank notice of all legal or arbitral proceedings, and of all
proceedings before any governmental or regulatory authority or agency,
instituted, or (to the knowledge of the Company) threatened, against
the Company or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
8.03 Corporate Existence, Etc. The Company shall, and
shall cause each of its Significant Subsidiaries to: preserve and
maintain its corporate existence and all its material rights,
privileges and franchises (except as otherwise expressly permitted
under Section 8.07 hereof); comply with the requirements of all
applicable laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such requirements
would have a Material Adverse Effect; pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge
or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being
maintained; maintain all its properties used or useful in its business
in good working order and condition, ordinary wear and tear excepted;
and permit representatives of any Bank or the Agent, during normal
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business hours, to examine, copy and make extracts from its books and
records, to inspect its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by
such Bank or the Agent (as the case may be).
8.04 Insurance. The Company shall, and shall cause each of
its Subsidiaries to, keep insured by financially sound and reputable
insurers all property of a character usually insured by corporations
engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is
usually carried by such corporations.
8.05 Use of Proceeds. The proceeds of the Credit
Extensions hereunder will be used solely for general corporate
purposes, including (without limitation) commercial paper back-up and
acquisitions (each of which uses shall be in compliance with all
applicable legal and regulatory requirements, including, without
limitation, Regulations G, U and X of the Board of Governors of the
Federal Reserve System and the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder). The Company will not permit more than 25% of
the value (as determined by any reasonable method) of its assets, nor
more than 25% of the value (as determined by any reasonable method) of
the assets of the Company and its Subsidiaries, to be represented by
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System).
8.06 Indebtedness. The Company will not, nor will it
permit any of its Subsidiaries to, incur, assume or suffer to exist
obligations in respect of standby and performance letters of credit in
an aggregate amount exceeding 5% of Total Consolidated Assets at any
one time outstanding. The Company will not permit any of its
Subsidiaries to create, issue, incur or assume, or suffer to exist,
any Indebtedness, except: (i) Indebtedness existing on the date
hereof, but not any renewals, extensions or refinancings of the same;
(ii) Indebtedness owing to the Company; (iii) Indebtedness of any
Person that becomes a Subsidiary of the Company after the date hereof
so long as such Indebtedness exists at the time such Person becomes
such a Subsidiary and was not incurred in anticipation thereof;
(iv) Capital Lease Obligations in an aggregate amount not to exceed an
amount equal to 5% of Total Consolidated Assets at any one time
outstanding; (v) Indebtedness in respect of Syndicated Loans under
this Agreement; (vi) Indebtedness in respect of Syndicated Loans (as
defined in the Other Agreement) under the Other Agreement; and
(vii) additional Indebtedness in an aggregate amount not to exceed an
amount equal to 10% of Total Consolidated Assets at any one time
outstanding.
8.07 Fundamental Changes.
(a) The Company will not, and will not permit any of its
Subsidiaries to, be a party to any merger or consolidation, and the
Company will not, and will not permit any of its Subsidiaries or
operating divisions (whether now owned or existing or hereafter
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acquired or designated) to, (x) sell, assign, lease or otherwise
dispose of all or substantially all of its Property whether now owned
or hereafter acquired or (y) sell, assign or otherwise dispose of any
capital stock of any such Subsidiary, or permit any such Subsidiary to
issue any capital stock, to any Person other than the Company or any
of its Wholly-Owned Subsidiaries if, after giving effect thereto, the Company
does not own, directly or indirectly, a majority of the capital stock
of such Subsidiary ("Controlling Stock Disposition"); except that, so
long as both before and after giving effect thereto no Default shall
have occurred and be continuing:
(i) the Company or any Subsidiary of the Company may be a
party to any merger or consolidation if it shall be the surviving
corporation;
(ii) any such Subsidiary may be a party to any merger or
consolidation with another such Subsidiary (or with any Person
that becomes another such Subsidiary as a result of such merger
or consolidation);
(iii) any such Subsidiary may merge into, and any such
Subsidiary or operating division may transfer any Property to,
the Company;
(iv) any such Subsidiary or operating division may transfer
any Property to another such Subsidiary or operating division (or
to any Person that becomes as part of such transfer another such
Subsidiary or operating division);
(v) [Intentionally Omitted];
(vi) the Company, any such Subsidiary or operating division
may sell, assign, lease or otherwise dispose of any Non-Strategic
Property; and
(vii) the Company or any such Subsidiary or operating
division may make sales, assignments and other dispositions of
Property (including Controlling Stock Dispositions) and any such
Subsidiary may become a party to a merger or consolidation (each
such sale, assignment, disposition, Controlling Stock
Disposition, merger or consolidation, other than those described
in clauses (i) through (vi) hereof, a "Disposition") if the
Property that was the subject of any such Disposition, together
with the Property that was the subject of all Dispositions during
the Disposition Period for such Disposition, did not produce
revenue that was greater in amount than an amount equal to 10% of
the revenue of the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP)
for the twelve-month period ending on the Determination Date for
such Disposition (for which purpose, a Controlling Stock
Disposition with respect to any such Subsidiary shall be deemed
to be the disposition of Property of such Subsidiary that
produced all of the revenues of such Subsidiary).
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(b) Notwithstanding anything in clauses (i)-(vii) of
Section 8.07(a) hereof to the contrary:
(i) the Company will not, and will not permit any of its
Subsidiaries or operating divisions (whether now owned or
existing or hereafter acquired or designated) to, sell, lease,
assign, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) any of its Property
(whether now owned or hereafter acquired) if such sale,
assignment, lease or other disposition (whether in one
transaction or in a series of transactions) shall have a Material
Adverse Effect; and
(ii) no Wholly-Owned Subsidiary of the Company shall be a
party to any merger or consolidation with, or shall sell, lease,
assign, transfer or otherwise dispose of any substantial part of
its Property to, any Subsidiary of the Company that is not a
Wholly-Owned Subsidiary of the Company.
8.08 Liens. The Company shall not, and shall not permit
any of its Subsidiaries to, create, assume or suffer to exist any Lien
upon any of its property or assets, now owned or hereafter acquired,
securing any Indebtedness or other obligation except: (i) Liens
outstanding on the date hereof and listed in Schedule II hereto;
(ii) Liens for taxes or other governmental charges not yet delinquent;
(iii) Liens in respect of Property acquired or constructed or improved
by the Company or any such Subsidiary after the date hereof which
Liens exist or are created at the time of acquisition or completion of
construction or improvement of such Property or within six months
thereafter to secure Indebtedness assumed or incurred to finance all
or any part of the purchase price or cost of construction or
improvement of such Property, but any such Lien shall cover only the
Property so acquired or constructed and any improvements thereto (and
any real property on which such Property is located); (iv) Liens on
Property of any corporation that becomes a Subsidiary of the Company
after the date of this Agreement, provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the
Company and were not created in anticipation thereof; (v) Liens on
Property acquired after the date hereof, provided that such Liens were
in existence at the time such Property was acquired and were not
created in anticipation thereof; (vi) Liens imposed by law, such as
mechanics, materialmen, landlords, warehousemen and carriers Liens,
and other similar Liens, securing obligations incurred in the ordinary
course of business which are not past due for more than thirty days or
which are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established; (vii) Liens
under workmen's compensation, unemployment insurance, social security
or similar legislation; (viii) Liens, deposits, or pledges to secure
the performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds,
or other similar obligations arising in the ordinary course of
business; (ix) judgment and other similar Liens arising in connection
with court proceedings, provided the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby are
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being actively contested in good faith and by appropriate proceedings;
(x) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Company or any such
Subsidiary of the Property encumbered thereby in the normal course of
its business or materially impair the value of the Property subject
thereto; (xi) Liens securing obligations of any such Subsidiary to the
Company or another Subsidiary of the Company; (xii) Liens securing
obligations of the Company (in an aggregate amount not exceeding at
any one time the greater of (a) $175,000,000 and (b) an aggregate
amount equal to 75% of the sum of (i) the book value of the accounts
receivable of the Company and its Subsidiaries plus (ii) the unpaid
amount of all accounts receivable that, but for the sale of such
accounts receivable pursuant to the Receivable Sales Agreements, would
have been reflected in accounts receivable on a consolidated balance
sheet of the Company and its Subsidiaries) pursuant to Receivables
Sale Agreements; and (xiii) other Liens securing Indebtedness in an
aggregate amount, which together with outstanding obligations referred
to in clause (xii) above, does not exceed 15% of Total Consolidated
Assets.
8.09 Lines of Businesses. Neither the Company nor any of
its Subsidiaries shall engage to any significant extent in any line or
lines of business other than the lines of business in which they are
engaged on the date hereof and any other line or lines of business
directly related to the manufacture, distribution and/or sale of
consumer or industrial products (collectively, "Permitted
Activities"). Notwithstanding the foregoing, the Company and its
Subsidiaries may engage in other lines of business as a result of the
acquisition of any Person primarily engaged in Permitted Activities so
long as the Company uses its best efforts to come into compliance with
the first sentence of this Section 8.09 within a reasonable period of
time after such acquisition.
8.10 Interest Coverage Ratio. The Company shall cause the
Interest Coverage Ratio, for any fiscal quarter of the Company, to be
greater than 3.0 to 1.
8.11 Total Indebtedness to Total Capital. The Company
shall not permit the ratio of Total Indebtedness to Total Capital at
any time to be greater than .50 to 1.
SECTION 9. EVENTS OF DEFAULT. If one or more of the
following events (herein called "Events of Default") shall occur and
be continuing:
(a) Any Borrower shall default in the payment when due of
any principal of or interest on any Loan or any other amount
payable by it hereunder; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of
its other Indebtedness aggregating $10,000,000 or more; or any
event specified in any note, agreement, indenture or other
document evidencing or relating to any Indebtedness aggregating
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$20,000,000 or more shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become due prior to its stated maturity or
to permit termination of the commitment to lend pursuant to any
such instrument or agreement; or
(c) Any representation, warranty or certification made or
deemed made by the Company or any other Borrower herein or in any
Designation Letter or by the Company or any other Borrower in any
certificate furnished to any Bank or the Agent pursuant to the
provisions hereof or thereof, shall prove to have been false or
misleading as of the time made or furnished in any material
respect; or
(d) The Company shall default in the performance of any of
its obligations under Section 8.01(f) or 8.05 through 8.11
(inclusive) hereof; or the Company shall default in the
performance of any of its other obligations in this Agreement and
such default shall continue unremedied for a period of 30 days
after notice thereof to the Company by the Agent or any Bank
(through the Agent); or
(e) The Company or any of its Significant Subsidiaries
shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(f) The Company or any of its Significant Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced against the
Company or any of its Significant Subsidiaries without its
application or consent, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of it or of all or any substantial part of
its assets, or (iii) similar relief in respect of it under any
law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing
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shall be entered and continue unstayed and in effect, for a
period of 60 days; or an order for relief against it shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money
in excess of $20,000,000 in the aggregate shall be rendered by a
court or courts against the Company and/or any of its
Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of
entry thereof and the Company or the relevant Subsidiary shall
not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An event or condition specified in Section 8.01(e)
hereof shall occur or exist with respect to any Plan or Multi-
employer Plan of the Company and, as a result of such event or
condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall incur or in the opinion of
the Majority Banks shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which is, in the determination of
the Majority Banks, material in relation to the consolidated
financial position of the Company and its Subsidiaries (taken as
a whole); or
(j) An event of default (under and as defined in the
Indenture) shall occur and be continuing; or
(k) During any period of 25 consecutive calendar months
(i) individuals who were directors of the Company on the first
day of such period and (ii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clause
(i) above and (iii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clauses
(i) and (ii) above shall no longer constitute a majority of the
Board of Directors of the Company;
THEREUPON: (i) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 in respect of the
Company or any Approved Borrower, (x) the Agent may and, upon request
of the Majority Banks, shall, by notice to the Company, cancel the
Commitments and (y) the Agent may and, upon request of Banks holding
at least 66-2/3% of the aggregate unpaid principal amount of Loans
then outstanding shall, by notice to the Company, declare the
principal amount of and the accrued interest on the Loans, and all
other amounts payable by the Company or any other Borrower hereunder
and under the Notes, to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company and each other Borrower; and
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(ii) in the case of the occurrence of an Event of Default referred to
in clause (f) or (g) of this Section 9 in respect of the Company or
any Approved Borrower, the Commitments shall be automatically
cancelled and the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by the
Company or any other Borrower hereunder and under the Notes shall
become automatically immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company and each other Borrower.
In addition, in the case of the occurrence of any event of
the type referred to in clause (f) or (g) of this Section 9 in respect
of any Approved Borrower that is not a Significant Subsidiary, the
principal amount then outstanding of, and accrued interest on, the
Loans and other amounts payable by such Approved Borrower hereunder
and under its Notes shall automatically become immediately due and
payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by such Approved
Borrower and the Company.
SECTION 10. THE AGENT.
10.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably (but subject to Section 10.08 hereof) appoints and
authorizes the Agent to act as its agent hereunder with such powers as
are specifically delegated to the Agent by the terms of this Agreement
together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.05
and the first sentence of Section 10.06 hereof shall include reference
to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (a) shall have no duties or responsibilities
except those expressly set forth in this Agreement and shall not by
reason of this Agreement be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations
or warranties contained in this Agreement or in any certificate or
other document referred to or provided for in, or received by any of
them under, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note
or any other document referred to or provided for herein or for any
failure by the Company or any other Person to perform any of its
obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings
hereunder; and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection
herewith, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent may
deem and treat the payee of any Syndicated Note as the holder thereof
for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent,
together with the written consent of the Company and the Agent, if
required, to such assignment or transfer.
CREDIT AGREEMENT
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10.02 Reliance by Agent. The Agent shall be entitled to
rely upon any certification, notice or other communication (including
any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by
the Agent. As to any matters not expressly provided for by this
Agreement, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Banks, and such instructions of
the Majority Banks and any action taken or failure to act pursuant
thereto shall be binding on all the Banks.
10.03 Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default unless the Agent has received
notice from a Bank or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that the
Agent receives such a notice of the occurrence of a Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall
(subject to Section 10.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Banks, provided
that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it
shall deem advisable in the best interest of the Banks.
10.04 Rights as a Bank. With respect to its Commitment and
the Loans made by it, Chase (and any successor acting as Agent), in
its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it
were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its
individual capacity. Chase (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Company (and any of its
affiliates) as if it were not acting as the Agent, and Chase and its
affiliates may accept fees and other consideration from the Company
for services in connection with this Agreement or otherwise without
having to account for the same to the Banks.
10.05 Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed under Section 12.03 hereof, but
without limiting the obligations of the Company under said
Section 12.03), ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement or any other documents contemplated
by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the
Company is obligated to pay under Section 12.03 hereof but excluding,
unless a Default has occurred and is continuing, normal administrative
costs and expenses incident to the performance of its agency duties
CREDIT AGREEMENT
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hereunder) or the enforcement of any of the terms hereof, or of any
such other documents, provided that no Bank shall be liable for any of
the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or
any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Company and
its Subsidiaries and decision to enter into this Agreement and 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 analysis and
decisions in taking or not taking action under this Agreement. The
Agent shall not be required to keep itself informed as to the
performance or observance by any Obligor of this Agreement or any
other document referred to or provided for herein or to inspect the
properties or books of the Company or any Subsidiary of the Company.
Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
affairs, financial condition or business of the Company or any
Subsidiary of the Company (or any of their affiliates) which may come
into the possession of the Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required
of the Agent hereunder the Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it
shall be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks and
the Company and the Agent may be removed at any time with or without
cause by the Majority Banks. Upon any such resignation or removal,
the Majority Banks shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within 30 days after
the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a bank
which has an office in New York, New York with a combined capital and
surplus of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section 10 shall continue
in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Agent.
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SECTION 11. GUARANTEE.
11.01 Guarantee. The Company hereby guarantees to each
Bank and the Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by
acceleration, by optional prepayment or otherwise) of the principal of
and interest on the Loans made by the Banks to, and the Notes held by
each Bank of, any Approved Borrower and all other amounts from time to
time owing to the Banks or the Agent by any Approved Borrower under
this Agreement pursuant to its Designation Letter and under the Notes,
in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed
Obligations"). The Company hereby further agrees that if any Approved
Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration, by optional prepayment or otherwise) any of
the Guaranteed Obligations, the Company will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
11.02 Obligations Unconditional. The obligations of the
Company hereunder are unconditional irrespective of (a) the value,
genuineness, validity, regularity or enforceability of any of the
Guaranteed Obligations, (b) any modification, amendment or variation
in or addition to the terms of any of the Guaranteed Obligations or
any covenants in respect thereof or any security therefor, (c) any
extension of time for performance or waiver of performance of any
covenant of any Approved Borrower or any failure or omission to
enforce any right with regard to any of the Guaranteed Obligations,
(d) any exchange, surrender, release of any other guaranty of or
security for any of the Guaranteed Obligations, or (e) any other
circumstance with regard to any of the Guaranteed Obligations which
may or might in any manner constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent hereof that
the obligations of the Company hereunder shall be absolute and
unconditional under any and all circumstances.
The Company hereby expressly waives diligence, presentment,
demand, protest, and all notices whatsoever with regard to any of the
Guaranteed Obligations and any requirement that the Agent or any Bank
exhaust any right, power or remedy or proceed against any Approved
Borrower hereunder or under the Designation Letter of such Approved
Borrower or any Note of such Approved Borrower or any other guarantor
of or any security for any of the Guaranteed Obligations.
11.03 Reinstatement. The guarantee in this Section 11
shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Approved Borrower in respect
of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder(s) of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization
or otherwise.
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11.04 Subrogation. Until the termination of the
Commitments and the payment in full of the principal of and interest
on the Loans and all other amounts payable to the Agent or any Bank
hereunder, the Company hereby irrevocably waives all rights of
subrogation or contribution, whether arising by operation of law
(including, without limitation, any such right arising under the
Federal Bankruptcy Code) or otherwise, by reason of any payment by it
pursuant to the provisions of this Section 11.
11.05 Remedies. The Company agrees that, as between the
Company on the one hand and the Banks and the Agent on the other hand,
the obligations of any Approved Borrower guaranteed under this
Agreement may be declared to be forthwith due and payable, or may be
deemed automatically to have been accelerated, as provided in Section
9 hereof, for purposes of Section 11.01 hereof notwithstanding any
stay, injunction or other prohibition (whether in a bankruptcy
proceeding affecting such Approved Borrower or otherwise) preventing
such declaration as against such Approved Borrower and that, in the
event of such declaration or automatic acceleration such obligations
(whether or not due and payable by such Approved Borrower) shall
forthwith become due and payable by the Company for purposes of said
Section 11.01.
11.06 Continuing Guarantee. The guarantee in this Section
11 is a continuing guarantee and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 12. MISCELLANEOUS.
12.01 Waiver. No failure on the part of the Agent or any
Bank to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement,
any Designation Letter or any Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or
privilege under this Agreement, any Designation Letter or any Note
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein and
therein are cumulative and not exclusive of any remedies provided by
law.
12.02 Notices. All notices and other communications
provided for herein (including, without limitation, any modifications
of, or requests, demands, waivers or consents under, this Agreement)
shall be given or made by telex, telecopy, telegraph, cable or in
writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly
given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as
aforesaid. Each Approved Borrower hereby agrees that each notice or
other communication provided for herein may be furnished to the
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Company or by the Company on its behalf in the manner specified above
and each Approved Borrower further agrees that failure of the Company
to deliver to such Approved Borrower any notice furnished in
accordance with this Section 12.02 shall not affect the validity of
such notice.
12.03 Expenses, Etc. The Company agrees to pay or
reimburse each of the Banks and the Agent for paying: (a) the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy,
special New York counsel to the Banks and the Agent, in connection
with (i) the preparation, execution and delivery of this Agreement,
the Designation Letters and the Notes, the making of the Loans
hereunder and (ii) any amendment, modification or waiver (whether or
not such amendment, modification or waiver shall become effective) of
any of the terms of this Agreement or any of the Notes; (b) all
reasonable costs and expenses of the Banks and the Agent (including
reasonable counsels' fees) in connection with the enforcement of this
Agreement, any Designation Letter or any of the Notes; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of
this Agreement, any Designation Letter, any of the Notes or any other
document referred to herein.
The Company hereby agrees to indemnify the Agent and each
Bank and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, costs, expenses, taxes or penalties
incurred by any of them arising out of, by reason of or as a
consequence of (i) any representation or warranty made or deemed to be
made by any Approved Borrower in Part B of Section 7 hereof or in such
Approved Borrower's Designation Letter proving to have been false or
misleading as of the time made in any material respect or (ii) any
investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating
to any actual or proposed use by the Company or any Subsidiary of the
Company of the proceeds of any of the Loans, including, without
limitation, the reasonable fees and disbursements of counsel incurred
in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims,
damages, costs, expenses, taxes or penalties incurred by reason of the
gross negligence or willful misconduct of the Person to be
indemnified).
12.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the
Company, the Agent and the Majority Banks, or by the Company, and the
Agent acting with the consent of the Majority Banks, and any provision
of this Agreement may be waived by the Majority Banks or by the Agent
acting with the consent of the Majority Banks; provided that no
amendment, modification or waiver shall, unless by an instrument
signed by all of the Banks or by the Agent acting with the consent of
all of the Banks: (i) increase or extend the term, or extend the time
or waive any requirement for the reduction or termination, of the
Commitments, (ii) extend the date fixed for the payment of any
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -216-
principal of or interest on any Loan, (iii) reduce the amount of any
principal of any Loan or the rate at which interest or any fee is
payable hereunder, (iv) alter the terms of Section 11 hereof or
release the Company from any of its obligations thereunder, (v) alter
the terms of this Section 12.04, (vi) amend the definition of the term
"Majority Banks" or modify in any other manner the number or
percentage of the Banks required to make any determinations or waive
any rights hereunder or to modify any provision hereof, (vii) amend
the definition of the term "Agreed Alternative Currency" or
(viii) waive any of the conditions precedent set forth in Section 6
hereof; and provided, further, that any amendment of Section 10
hereof, or which increases the obligations or alters the rights of the
Agent hereunder, shall require the consent of the Agent.
12.05 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Agent.
(b) No Bank may assign all or any part of its Loans, its
Notes or its Commitment without the prior consent of the Company
and the Agent, which consents will not be unreasonably withheld;
provided that, (i) without the consent of the Company or the
Agent, any Bank may assign to any of its affiliates or to another
Bank all or (subject to the further clauses below) any portion of
its Commitment; (ii) any such partial assignment shall be not
less than $5,000,000 and in multiples of $1,000,000 in excess
thereof; and (iii) such assigning Bank shall also simultaneously
assign the same proportion of each of its Syndicated Loans then
outstanding (together with the same proportion of its Syndicated
Note then outstanding). Upon written notice to the Company and
the Agent of an assignment permitted by the preceding sentence
(which notice shall identify the assignee, the amount of the
assigning Bank's Commitment and Loans assigned in detail
reasonably satisfactory to the Agent) and upon the effectiveness
of any assignment consented to by the Company and the Agent, the
assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the
Company and the Agent), the obligations, rights and benefits of a
Bank hereunder holding the Commitment and Loans (or portions
thereof) assigned to it (in addition to the Commitment and Loans,
if any, theretofore held by such assignee) and the assigning Bank
shall, to the extent of any such Commitment assignment, be
released from its Commitment (or portions thereof) so assigned.
Upon the effectiveness of any assignment referred to in this
Section 12.05(b), the assigning Bank or the assignee Bank shall
pay to the Agent a transfer fee in an amount equal to $3,000.
(c) A Bank may sell or agree to sell to one or more other
Persons a participation in all or any part of its Commitment or
its Loans, in which event each such participant shall be entitled
to the rights and benefits of the provisions of Section 8.01(g)
hereof with respect to its participation as if (and the Company
shall be directly obligated to such participant under such
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -217-
provisions as if) such participant were a "Bank" for purposes of
said Section, but shall not have any other rights or benefits
under this Agreement or such Bank's Notes (the participant's
rights against such Bank in respect of such participation to be
those set forth in the agreement (the "Participation Agreement")
executed by such Bank in favor of the participant). All amounts
payable by the Company to any Bank under Section 5 hereof shall
be determined as if such Bank had not sold or agreed to sell any
participations and as if such Bank were funding all of its Loans
in the same way that it is funding the portion of its Loans in
which no participations have been sold. In no event shall a Bank
that sells a participation be obligated to the participant under
the Participation Agreement to take or refrain from taking any
action hereunder or under such Bank's Notes except that such Bank
may agree in the Participation Agreement that it will not,
without the consent of the participant, agree to (i) the
increase, or the extension of the term, or the extension of the
time or waiver of any requirement for the reduction or
termination, of such Bank's Commitment, (ii) the extension of any
date fixed for the payment of principal of or interest on any
participated Loan or any portion of any fees payable to the
participant, (iii) the reduction of any payment of principal of
any participated Loan, (iv) the reduction of the rate at which
either interest or (if the participant is entitled to any part
thereof) fees are payable hereunder to a level below the rate at
which the participant is entitled to receive interest or fees (as
the case may be) in respect of such participation or (v) any
modification, supplement or waiver hereof or of any of the other
Basic Documents to the extent that the same, under the terms
hereof or thereof, requires the consent of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.05, a
Bank may assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants).
12.06 Survival. The obligations of any Borrower under
Sections 5.01, 5.05 and 5.06 hereof, the obligations of the Banks
under Section 10.05 hereof and the obligations of the Company under
Section 12.03 hereof shall survive the repayment of the Loans and the
termination of the Commitments. In addition, each representation and
warranty made, or deemed to be made, by a notice of borrowing of Loans
hereunder shall survive the making of such Loans, and no Bank shall be
deemed to have waived, by reason of making any Loan, any Default or
Event of Default which may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding
that such Bank or the Agent may have had notice or knowledge or reason
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -218-
to believe that such representation or warranty was false or
misleading at the time such Loan was made.
12.07 Captions. Captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this
Agreement.
12.08 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be identical and all of
which, when taken together, shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
12.09 Governing Law; Jurisdiction; Service of Process;
Waiver of Jury Trial; Etc.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND ANY ACTION OR PROCEEDING TO
EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED IN CONNECTION
THEREWITH, MAY BE INSTITUTED IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND EACH OBLIGOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS GENERALLY (BUT NON-EXCLUSIVELY) TO THE
JURISDICTION OF EACH SUCH COURT. THE COMPANY IRREVOCABLY CONSENTS TO
THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES OF SUCH PROCESS TO THE COMPANY AT ITS ADDRESS
SET FORTH UNDERNEATH ITS SIGNATURE HERETO. EACH APPROVED BORROWER
HEREBY AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BROUGHT IN NEW YORK MAY BE MADE UPON SUCH APPROVED BORROWER BY SERVICE
UPON THE COMPANY AT THE "ADDRESS FOR NOTICES" SPECIFIED BELOW ITS NAME
ON THE SIGNATURE PAGES HEREOF AND EACH APPROVED BORROWER HEREBY
IRREVOCABLY APPOINTS THE COMPANY AS ITS AUTHORIZED AGENT ("PROCESS
AGENT") TO ACCEPT, ON BEHALF OF ITS PROPERTY SUCH SERVICE OF PROCESS
IN NEW YORK. EACH OBLIGOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. EACH OBLIGOR 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. EACH OBLIGOR FURTHER AGREES
THAT ANY SUCH ACTION OR PROCEEDING AGAINST THE AGENT AND/OR ANY OF THE
BANKS SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE AGENT AND THE BANKS HEREBY
CONSENT TO THE JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(b) EACH OF THE OBLIGORS, THE AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, 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.
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -219-
12.10 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
12.11 Judgment Currency. This is an international loan
transaction in which the specification of Dollars or an Alternative
Currency, as the case may be (the "Specified Currency"), any payment
in New York City or the country of the Specified Currency, as the case
may be (the "Specified Place"), is of the essence, and the Specified
Currency shall be the currency of account in all events relating to
Loans denominated in the Specified Currency. The payment obligations
of the Obligors under this Agreement and the Notes shall not be
discharged by an amount paid in another currency or in another place,
whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to the Specified Currency and transfer to
the Specified Place under normal banking procedures does not yield the
amount of the Specified Currency at the Specified Place due hereunder.
If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder in the Specified Currency into another
currency (the "Second Currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal banking
procedures the Agent could purchase the Specified Currency with the
Second Currency on the Business Day next preceding that on which such
judgment is rendered. The obligation of each Obligor in respect of
any such sum due from it to the Agent or any Bank hereunder (an
"Entitled Person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by such Entitled
Person of any sum adjudged to be due hereunder or under the Notes in
the Second Currency such Entitled Person may in accordance with normal
banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged
to be due; and each Obligor hereby, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled
Person against, and to pay such Entitled Person on demand in the
Specified Currency, any difference between the sum originally due to
such Entitled Person in the Specified Currency and the amount of the
Specified Currency so purchased and transferred.
12.12 Cancellation of Existing Credit Agreements. On the
date of the execution and delivery of this Agreement, the commitments
of the Banks party to the Existing Credit Agreements shall
automatically terminate and all fees payable to such Banks accrued to
such date under the Existing Credit Agreements shall be immediately
due and payable. Upon the payment of such fees, all obligations of
the Company and the Drawers under the Existing Credit Agreements shall
terminate except for obligations that by the express terms of the
Existing Credit Agreements are stated to survive the repayment of the
loans and the termination of the commitments of the Banks thereunder.
In connection with the foregoing, each of the Banks party to each
Existing Credit Agreement (such Banks constituting, in the aggregate,
the "Majority Banks" under and as defined in the respective Existing
Credit Agreement) hereby agrees to waive the requirement that the
Company provide notice of such termination under Section 2.05(b) of
each such Existing Credit Agreement.
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -220-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
NEWELL CO.
By ________________________
Name:
Title:
Address for Notices:
Newell Co.
29 East Stephenson Street
Freeport, Illinois 61032
Telecopy No.: 815-233-8060
Telephone No.: 815-233-8040
Attention: C.R. Davenport
Vice President --
Treasurer
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -221-
THE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By _________________________
Name:
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association),
as Agent
New York Agency
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopy No.: 718-242-6910
Telephone No.: 718-242-7979
Attention: New York Agency
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -222-
THE BANKS
Commitment THE CHASE MANHATTAN BANK
$58,666,666.67 (NATIONAL ASSOCIATION)
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Telecopy No.: (212) 552-1457
Telephone No.: (212) 552-1479
Attention: Bruce S. Borden
Vice President
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -223-
Commitment ROYAL BANK OF CANADA
$51,333,333.33
By _______________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
New York Branch
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Address for Notices:
New York Branch
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Attention: Manager, Loans
Administration
Telecopy No.: (212) 428-2372
Telephone No.: (212) 428-6311
with a copy to:
Royal Bank of Canada
One North Franklin Street
Suite 700
Chicago, Illinois 60606
Attention: Preston D. Jones, Senior
Manager
Telecopy No.: (312) 551-0805
Telephone No.: (312) 551-1618
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -224-
Commitment BANK OF AMERICA ILLINOIS
$44,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Address for Notices:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Telecopy No.: (312) 987-5500
Telephone No.: (312) 828-6624
Attention: Kurt W. Anstaett
Managing Director
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -225-
Commitment CIBC INC.
$44,000,000
By _______________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
CIBC Inc.
Two Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Address for Notices:
CIBC Inc.
Two Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Telecopy No.: (404) 319-4950
Telephone No.: (404) 319-4856
Attention: Sherry Smith
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -226-
Commitment CREDIT LYONNAIS CAYMAN ISLAND
$44,000,000 BRANCH
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Credit Lyonnais Cayman Island
Branch
1301 Avenue of the Americas
New York, New York 10019
Address for Notices:
Credit Lyonnais
c/o Credit Lyonnais Chicago
Branch
227 West Monroe
Chicago, Illinois 60606
Telecopy No.: (312) 641-0527
Telephone No.: (312) 220-7310
Attention: David Payne
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -227-
Commitment MORGAN GUARANTY TRUST COMPANY
$44,000,000 OF NEW YORK
By _____________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Address for Notices:
Morgan Guaranty Trust Company
of New York
c/o J.P. Morgan Services
500 Stanton Christiana Road
P.O. Box 6070
Newark, Delaware 19713-2107
Telecopy No.: (302) 634-1094
Telephone No.: (302) 634-1800
Attention: MOF Desk
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -228-
Commitment NATIONSBANK, N.A. (CAROLINAS)
$44,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
NationsBank, N.A. (Carolinas)
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Address for Notices:
NationsBank, N.A. (Carolinas)
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Telecopy No.: (312) 234-5601
Telephone No.: (312) 234-5643
Attention: Carter E. Smith
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -229-
Commitment NBD BANK
$44,000,000
By ____________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Address for Notices:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Telecopy No.: (313) 225-1671
Telephone No.: (313) 225-2762
Attention: Timothy M. Monahan
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -230-
Commitment THE NORTHERN TRUST COMPANY
$44,000,000
By ________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Address for Notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Telecopy No.: (312) 444-3508
Telephone No.: (312) 444-3460
Attention: Terese M. Hayes
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -231-
Commitment PNC BANK, NATIONAL ASSOCIATION
$44,000,000
By ___________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
PNC Bank, N.A.
One PNC Plaza
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
Address for Notices:
PNC Bank, N.A.
500 West Madison Street
Suite 3140
Chicago, Illinois 60661
Telecopy No.: (312) 906-3420
Telephone No.: (312) 906-3440
Attention: Richard T. Jander
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -232-
Commitment SANWA BANK
$44,000,000
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Sanwa Bank
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
Sanwa Bank
10 South Wacker Drive
Chicago, Illinois 60606
Telecopy No.: (312) 346-6677
Telephone No.: (312) 368-3011
Attention: Richard Ault
CREDIT AGREEMENT
----------------
<PAGE>
<PAGE> -233-
Commitment SOCIETE GENERALE
$44,000,000
By __________________________
Name:
Title:
By __________________________
Name:
Title:
Lending Office for all Loans
to U.S. Borrowers:
Societe Generale
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Address for Notices:
Societe Generale
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telecopy No.: (312) 578-5099
Telephone No.: (312) 578-5112
Attention: Donna Benson
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information
extracted from the Newell Co. and Subsidiaries
Consolidated Balance Sheets and Statements of Income
and is qualified in its entirety by reference to such
financial statements.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUN-30-1995
<CASH> 12,982
<SECURITIES> 0
<RECEIVABLES> 405,538
<ALLOWANCES> (11,501) <F1>
<INVENTORY> 491,426
<CURRENT-ASSETS> 1,033,200
<PP&E> 722,465 <F2>
<DEPRECIATION> (243,226) <F2>
<TOTAL-ASSETS> 2,580,415
<CURRENT-LIABILITIES> 620,365
<BONDS> 604,489
0
0
<COMMON> 158,199
<OTHER-SE> 1,029,351
<TOTAL-LIABILITY-AND-EQUITY> 2,580,415
<SALES> 1,177,910
<TOTAL-REVENUES> 356,265
<CGS> 821,645
<TOTAL-COSTS> 1,003,436
<OTHER-EXPENSES> 13,230
<LOSS-PROVISION> 1,268 <F1>
<INTEREST-EXPENSE> 24,225
<INCOME-PRETAX> 151,708
<INCOME-TAX> 60,683
<INCOME-CONTINUING> 91,025
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 91,025
<EPS-PRIMARY> 0.58
<EPS-DILUTED> 0.58
<FN>
<F1> Allowances for doubtful accounts are reported as contra accounts to accounts receivable. The
corporate reserve for bad debts is a percentage of trade receivables based on the bad debts
experienced in one or more past years, general economic conditions, the age of the receivables and
other factors that indicate the element of uncollectibility in the receivables outstanding at the end
of the period.
<F2> See notes to consolidated financial statements.
</TABLE>
