UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 For the Fiscal year ended December 31, 1994
[ ] Transition Report to Section 13 or 15(d) of the Securities Exchange Act of
1934 For the transition period from to
Commission File Number 1-11415
AMERICAN STANDARD COMPANIES INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
DELAWARE 13-3465896
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Centennial Avenue, P.O. Box 6820, Piscataway, New Jersey 08855-6820
(Address of principal executive office) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (908) 980-6000
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock, $.01 par value New York Stock Exchange, Inc.
(and associated Common Stock Rights)
Securities registered pursuant to Section 12 (g) of the Act: None.
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 (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge in definitive proxy or information statements
incorporated by reference in part III of this Form 10-K or any amendment to this
Form 10-K. (Not applicable; the Common Stock was first registered as a class of
securities pursuant to Section 12(b) of the Securities Exchange Act of 1934 on
February 2, 1995.)
The aggregate market value of the voting stock (Common Stock) held by
non-affiliates of the Registrant as of the close of business on March 10 , 1995
was $628,233,963 based on the closing sale price of the common stock on the New
York Stock Exchange consolidated tape on that date.
Number of shares outstanding of each of the Registrant's classes of Common
Stock, as of the close of business on March 10, 1995:
Common Stock, $.01 par value 76,044,757 Shares
Documents incorporated by reference: Part of the Form 10-K into
Document (Portions only) which document is incorporated.
Annual Report to Stockholders for the year Parts I, II and IV
ended December 31, 1994
Definitive Proxy Statement dated March 27,
1995 for use in connection with the Annual Meeting
of Stockholders to be held on May 4 , 1995 Part III
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
PART I
Item 1. Business. 1
Item 2. Properties. 15
Item 3. Legal Proceedings. 16
Item 4. Submission of Matters to a Vote of Security Holders. 17
Executive Officers of the Registrant. 18
PART II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters. 21
Item 6. Selected Financial Data. 22
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations. 23
Item 8. Financial Statements and Supplementary Data. 23
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. 23
PART III
Item 10. Directors and Executive Officers of the Registrant. 24
Item 11. Executive Compensation. 24
Item 12. Security Ownership of Certain Beneficial Owners and Management. 24
Item 13. Certain Relationships and Related Transactions. 24
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K. 25
</TABLE>
<PAGE>
PART I
ITEM 1. BUSINESS
American Standard Companies Inc. (the "Company") is a Delaware corporation that
has as its only significant asset all the outstanding common stock of American
Standard Inc., a Delaware corporation ("American Standard Inc."). Hereinafter,
"American Standard" or "the Company" will refer to the Company, or to the
Company and American Standard Inc., including its subsidiaries, as the context
requires. The Company was formed in 1988 by Kelso & Company, L.P. ("Kelso") to
effect the acquisition (the "Acquisition") of American Standard Inc. The Company
changed its name from ASI Holding Corporation to American Standard Companies
Inc. in November 1994. In the first quarter of 1995 the Company sold 15,112,300
shares of its common stock at $20 per share in an initial public offering (the
"Offering"), which yielded net proceeds of approximately $282 million which were
used to reduce indebtedness.
American Standard is a globally-oriented manufacturer of high quality,
brand-name products in three major product groups: air conditioning systems (56%
of 1994 sales); bathroom and kitchen fixtures and fittings (27% of 1994 sales);
and braking control systems for medium-sized and heavy trucks, buses, trailers
and utility vehicles (17% of 1994 sales). American Standard is a market leader
in each of these business segments in the principal geographic areas in which it
competes. The Company's brand names include TRANE(R) and AMERICAN-STANDARD(R)
for air conditioning systems, AMERICAN-STANDARD(R), IDEAL-STANDARD(R) and
STANDARD(R) for plumbing products and WABCO(R) for braking and related systems.
The Company emphasizes technologically advanced products such as air
conditioning systems that utilize energy-efficient compressors and
environmentally-preferred refrigerants, water-saving plumbing products and
commercial vehicle braking and related systems (including antilock braking
systems, "ABS") that utilize electronic controls. At December 31, 1994, American
Standard had 94 manufacturing facilities in 32 countries.
Overview of Business Segments
American Standard operates three business segments: Air Conditioning Products,
Plumbing Products and Automotive Products (formerly named Transportation
Products).
Air Conditioning Products. American Standard is a leading U.S. manufacturer of
air conditioning systems for both domestic and export sales, and also
manufactures air conditioning systems outside the United States. Air
Conditioning Products manufactures "applied" (custom engineered, site-assembled)
and "unitary" (self-contained, factory-assembled) air conditioning systems that
are sold primarily under the TRANE(R) and AMERICAN STANDARD(R) names. Over
one-half of Air Conditioning Products' sales in 1994 was in the replacement,
renovation and repair markets which have been less cyclical than the new
residential and commercial construction markets. Air Conditioning Products'
sales in these periods to the commercial and residential markets represented
approximately 75% and 25%, respectively, of Air Conditioning Products' total
sales. Management believes that Air Conditioning Products is well positioned for
growth because of its high quality, brand-name products, significant existing
market shares, the introduction of new product features such as electronic
controls, the expansion of its broad distribution network and conversion to
environmentally-preferred refrigerants.
Plumbing Products. American Standard is a leading manufacturer in Europe and a
number of other countries of bathroom and kitchen fixtures and fittings for the
residential and commercial construction markets and retail sales channels.
Plumbing Products manufactures and distributes its products under the
AMERICAN-STANDARD(R), IDEAL-STANDARD(R) and STANDARD(R) names. Management
believes that Plumbing Products is well positioned for growth due to the high
quality of its brand-name products, significant existing market shares in a
number of countries and the expansion of existing operations in developing
market areas throughout the world (principally the Far East, Latin America and
Eastern Europe).
Automotive Products. Automotive Products is a leading manufacturer, primarily
in Europe and Brazil, of brake and related systems for the commercial and
utility vehicle industry. Its most important products are pneumatic braking
systems and related electronic and other control systems (including antilock
braking systems) marketed under the WABCO(R) name for medium-size and heavy
trucks, tractors, buses, trailers and utility vehicles. American Standard
supplies vehicle manufacturers such as Mercedes-Benz, Volvo, Iveco (Fiat), RVI
(Renault) and Rover. Management believes that Automotive Products is well
positioned to benefit from improved market conditions in Europe and Brazil and
increasing demand in a number of markets (including the U.S. commercial and
utility vehicle markets) for ABS and other sophisticated electronic control
systems, as well as from the technological advances embodied in the Company's
products and its close relationships with a number of vehicle manufacturers.
Strategy
Globalization
American Standard has historically had a significant global presence. One of
its major strategic objectives is to continue to expand that presence through
the growth of existing operations and the establishment of new operations in
developing market areas in the Far East, Latin America and Eastern Europe. The
Company often uses joint ventures with local manufacturing and distribution
partners to facilitate risk sharing and to allow the Company to benefit from the
additional expertise of local market participants.
Air Conditioning Products plans to continue to expand its operations in the Far
East, Latin America and Europe. It has recently established a joint venture in
Australia and is establishing joint ventures in the Peoples Republic of China
("PRC"). Air Conditioning Products also recently expanded its sales forces in
the Far East and Latin America.
Plumbing Products entered new markets through joint ventures in Eastern Europe,
Spain and Portugal and is continuing to expand using this approach. Plumbing
Products is significantly expanding its operations in the PRC through its
affiliate, A-S China Plumbing Products Limited ("ASPPL"), to which American
Standard is obligated to contribute $10 million and has contributed an operation
valued at $20 million for an initial ownership position of 27% with effective
control over day-to-day operations. In April 1994, ASPPL received other capital
commitments of $82.5 million. As of December 31, 1994, ASPPL had drawn down
approximately $6.7 million of American Standard's $10 million capital commitment
and approximately $55 million of the capital commitments of its other investors.
ASPPL is expanding its operations to Beijing, Tianjin, Shanghai and Guangzhou in
order to provide a full product line of fixtures, fittings, and bathtubs
throughout the PRC market. ASPPL has entered into six joint ventures with local
business concerns which, together with one wholly-owned operation, have received
business licenses from Chinese government authorities. These include two
chinaware manufacturing facilities currently under construction, an existing
chinaware manufacturing facility being expanded and two operating fittings
plants and two operating steel tub factories. The Company's ownership interest
in ASPPL is expected to increase over time to up to 51% of the equity of ASPPL
through reinvestment of royalties and management fees and may increase above
that level through additional stock purchases.
Automotive Products, headquartered in Europe, has recently acquired a business
in Spain, is in the process of establishing joint ventures in the PRC and
Eastern Europe and plans to expand its existing joint ventures in Japan and the
United States.
Demand Flow Technology
To build on its position as a leader in each of its industries and to increase
sales and operating income, American Standard began in 1990 to apply Demand Flow
methods to all its businesses. Under Demand Flow, products are produced as and
when required by the customer, the production process is streamlined, and
quality control is integrated into each step of the manufacturing process. The
benefits of Demand Flow include better customer service, quicker response to
changing market needs, improved quality control, higher productivity, increased
inventory turnover rates and reduced requirements for working capital and
manufacturing and warehouse space.
As part of American Standard's strategy to integrate Demand Flow into all of
its operations, over 75% of American Standard's approximately 38,000 employees
worldwide had been trained in Demand Flow as of December 31, 1994. Demand Flow
has been implemented in substantially all of American Standard's production
facilities. In addition, American Standard is implementing Demand Flow methods
in its acquired operations such as Perrot, a German brake manufacturer acquired
in January 1994. American Standard is also applying Demand Flow to
administrative functions and is re-engineering its organizational structure to
manage its businesses based on processes instead of functions.
American Standard believes that its implementation of Demand Flow methods has
achieved significant benefits. Product cycle time (the time from the beginning
of the manufacturing of a product to its completion) has been reduced and, on
average, inventory turnover rates have almost tripled. Principally as a result
of the implementation of Demand Flow, American Standard has achieved an
aggregate $264 million reduction in inventories from December 31, 1989 while
sales have grown 34% for the same period. American Standard further believes
that as a result of the introduction of Demand Flow, employee productivity has
risen significantly, customer service has improved and, without reducing
production capacity, the Company has been able to free more than three million
square feet of manufacturing and warehouse space, allowing for expansion, plant
consolidation or other uses.
Air Conditioning Products Segment
Air Conditioning Products began with the 1984 acquisition by the Company of The
Trane Company, a manufacturer and distributor of air conditioning products since
1913. Air conditioning products are sold primarily under the TRANE(R) and
AMERICAN-STANDARD(R) names. In 1994 Air Conditioning Products, with revenues of
$2,480 million, accounted for approximately 56% of the Company's sales and 51%
of its operating income. Air Conditioning Products derived approximately 16% of
its sales in 1994 from operations outside the United States and over half from
the replacement, renovation and repair markets, which in general are less
cyclical than the new residential and commercial construction markets.
Air Conditioning Products manufactures three general types of air conditioning
systems. The first, called "unitary," which is sold for residential and
commercial applications, is a factory-assembled central air conditioning system
which generally encloses in one or two units all the components to cool or heat,
clean, dehumidify or humidify, and move air. The second, called "applied," is
typically custom-engineered for commercial use and involves field installation
of several different components of the air conditioning system. Trane is a world
leader in both unitary and applied air conditioning products. The third type,
called "mini-split," is a small unitary air conditioning system, generally for
residential use, which operates without air ducts. Air Conditioning Products
manufactures and distributes mini-split units principally in the Far East and
Europe.
Product and marketing programs have been, and are being, developed to increase
penetration in the growing replacement, repair, and servicing businesses, in
which margins are higher than on sales of original equipment. Much of the
equipment sold in the fast-growing air conditioning markets of the 1960's and
1970's is reaching the end of its useful life. Also, equipment sold in the
1980's is likely to be replaced earlier than originally expected with
higher-efficiency products recently developed to meet required efficiency
standards and to capitalize on the availability of environmentally-preferred
refrigerants.
In May 1994 a subsidiary of the Company, Standard Compressors Inc., concluded
the final arrangements for a partnership formed in December 1993 with Heatcraft
Technologies Inc., a subsidiary of Lennox International Inc., for the
manufacture of compressors for use in air conditioning and refrigeration
equipment. Each partner has a 50% interest in the partnership, called Alliance
Compressors, which initially will manufacture reciprocating compressors in a
section of the Company's existing facility in Tyler, Texas. Construction of a
new facility in Natchitoches, Louisiana, for the manufacture of a new scroll
compressor being developed for use primarily in residential air conditioners is
expected to begin in 1995, with startup scheduled for 1996. In connection with
this arrangement, American Standard received $22.5 million, of which $8 million
was for assets transferred and $14.5 million for an initial preferred
distribution. American Standard will receive two additional payments of $10
million each, dependent upon achieving technological and manufacturing
milestones in the development of the new scroll compressor.
Many of the products manufactured by Air Conditioning Products utilize HCFCs
and in the past utilized CFCs as refrigerants. Various federal and state laws
and regulations, principally the 1990 Clean Air Act Amendments, require the
eventual phase-out of the production and use of these chemicals because of their
possible deleterious effect on the earth's ozone layer if released into the
atmosphere. Phase-in of substitute refrigerants will require replacement or
modification of much of the air conditioning equipment already installed, which
management believes has created a new market opportunity. In order to ensure
that the Company's products will be compatible with the substitute refrigerants,
Air Conditioning Products has been working closely with the manufacturers that
are developing substitutes for those refrigerants being phased out. Air
Conditioning Products has incurred and will continue to incur research and
development costs in this effort. These costs and the substitution of
alternative refrigerants are not expected to have a material adverse impact on
Air Conditioning Products. See "General-Regulations and Environmental Matters."
Various federal and state statutes, including the National Appliance Energy
Conservation Act of 1987, as amended, impose energy efficiency standards for
certain of the Company's unitary air conditioning products. Although the Company
has been able to meet or exceed such standards to date, stricter standards in
the future could require substantial research and development expense and
capital expenditures to maintain compliance.
<PAGE>
At December 31, 1994 Air Conditioning Products had 28 manufacturing plants in 8
countries, employing approximately 16,000 people.
Air Conditioning Products comprises three operating groups: Unitary
Products, North American Commercial, and International.
Unitary Products Group
Unitary Products, which accounted for approximately 42% of Air Conditioning
Products' 1994 sales, manufactures and distributes products for commercial and
residential unitary applications in the United States. This group benefits the
most from the growth of the replacement market for residential and commercial
air conditioning systems. Other major suppliers in the unitary market are
Carrier, Intercity Products, Rheem, and Lennox.
Commercial unitary products range from 2 to 120 tons and include combinations
of air conditioners, heat pumps, and gas furnaces, along with
variable-air-volume equipment and integrated control systems. Typical
applications are in retail stores, small-to-medium-size office buildings,
manufacturing plants, restaurants, and commercial buildings located in office
parks and strip malls. These products are sold through 81 commercial sales
offices in 121 locations. Residential central air conditioning products range
from 1 to 5 tons and include air conditioners, heat pumps, air handlers,
furnaces, and coils. These products are sold through independent wholesale
distributors and Company-owned sales offices in over 250 locations to dealers
and contractors who sell and install the equipment.
During 1994 the Unitary Products Group successfully introduced several new
products, including a new line of outdoor condensing units for the
AMERICAN-STANDARD(R) brand; a new furnace line; micro-electronic controlled
large rooftop units; rooftop units with special features that appeal to national
accounts; and a large rooftop line (27.5 tons to 50 tons).
The Company also markets an AMERICAN-STANDARD(R) brand name product to serve
distributors who typically carry other products in addition to air conditioning
products.
North American Commercial Group
North American Commercial Group (formerly named Commercial Systems Group),
which accounted for approximately 37% of Air Conditioning Products' 1994 sales,
manufactures and distributes products in the United States for sale in the U.S.
and Canada for air conditioning applications in larger commercial, industrial,
and institutional buildings. Other major suppliers of commercial systems are
Carrier, York, and McQuay.
North American Commercial Group distributes its products through 100 sales
offices. Thirty of these offices are Company-owned and 70 are franchised. In
1993 the Company acquired the franchises in New York City; Birmingham, Alabama;
and Columbia, South Carolina. In 1994 the Company acquired the Toronto, Canada,
and St. Louis, Missouri offices. In 1995 the Company acquired the Albany, New
York office and expects to continue to acquire major sales offices from its
franchisees.
Over the last few years the North American Commercial Group has added
additional aftermarket business activities, such as emergency rentals of air
conditioning equipment. Also, the group has expanded its line to include
components for converting installed centrifugal chiller products to use more
environmentally-preferred refrigerants.
During 1993 and 1994 the Company successfully introduced a number of new
products such as the high-efficiency centrifugal chiller, expanded air cooled
series R chiller line, and the new fan coil line. Integrated Comfort Systems
continue to grow as a percentage of total sales. Indoor air quality is emerging
as a significant new application to be served by the Company's products and
services.
International Group
The International Group, which accounted for approximately 21% of Air
Conditioning Products' 1994 sales, manufactures applied and unitary products in
foreign facilities operated by subsidiaries and joint ventures and exports many
of the products manufactured in the United States by the Unitary Products and
North American Commercial Groups.
Air Conditioning Products expects to continue the expansion of its presence
outside the U.S. In France, in addition to its plants in Epinal and Charmes, the
group opened a plant in late 1991 in Mirecourt to build mini-splits and air
moving products known as fan coils utilizing Demand Flow technology. The fan
coil line is tailored to the European market, and the mini-split products are
being sold in Europe, the Middle East and the Far East. An operation was opened
in 1992 in Colchester, U.K., to provide large air handling products to the U.K.
Like the North American Commercial Group, the International Group has an
extensive network of sales and service agencies, both Company-owned and
franchised, to provide maintenance and warranty service for its equipment
installed around the world. In 1992 a joint venture in Egypt commenced
operations.
The Company has increased its presence in Asia by expanding its operations in
Malaysia, purchasing an air conditioning manufacturing and distribution firm in
Taiwan in 1990, and entering into a sales and manufacturing joint venture in
Thailand in 1991. The Company has recently established a joint venture in
Australia and is establishing joint ventures in the PRC. An important new
product for the Far East markets, which went into production in 1992 in
Malaysia, is a double-walled air handler designed for ease of manufacture and
compatibility with the Demand Flow process.
Plumbing Products Segment
Plumbing Products manufactures and distributes bathroom and kitchen fixtures
and fittings primarily under the IDEAL-STANDARD(R), AMERICAN-STANDARD(R), and
STANDARD(R) names. In 1994 Plumbing Products, with revenues of $1,218 million,
accounted for 27 % of the Company's sales and 31 % of its operating income.
Plumbing Products derived approximately 73 % of its total 1994 sales from
operations outside the United States.
Approximately 53% of Plumbing Products' sales consists of vitreous china
fixtures, 26% consists of fittings (typically brass), 7% consists of bathtubs,
and the remainder consists of related plumbing products. Throughout the world
these products are generally sold through wholesalers and distributors and
installed by plumbers and contractors. In the United States sales through the
retail channel have continued to grow and accounted for approximately 24% of
U.S. Plumbing Products' sales in 1994. In total the residential market accounts
for approximately 75% of Plumbing Products' sales, with the commercial and
industrial markets providing the remaining 25%.
Plumbing Products operates through three primary geographic groups: European
Plumbing Products, the Americas Group (comprising U.S. Plumbing Products and
Americas International), and the Far East Group. Plumbing Products' fittings
operations are organized as the Worldwide Fittings Group, which has primary
responsibility for faucet technology, product development and manufacturing,
with manufacturing facilities in Europe, the U.S., and Mexico. Worldwide
Fittings sales and operating results are reported in the three primary
geographic groups within which it operates.
European Plumbing Products, which sells products primarily under the brand name
IDEAL-STANDARD(R), manufactures and distributes bathroom and kitchen fixtures
and fittings through subsidiaries or joint ventures in Germany, Italy, France,
England, Greece, the Czech Republic, Bulgaria, Spain, Portugal, and Egypt. In
1991 the Company purchased 32% of Etablissements Porcher ("Porcher"), a leading
French manufacturer and distributor of plumbing products with manufacturing
facilities for ceramic fixtures, cast iron and acrylic bathtubs, brass fittings,
and plastic components in seven locations and with company-owned distribution
outlets throughout France.
U.S. Plumbing manufactures bathroom and kitchen fixtures and fittings, selling
under the brand names AMERICAN-STANDARD(R) and STANDARD(R) in the United States.
Americas International manufactures bathroom and kitchen fixtures and fittings,
selling under the names AMERICAN-STANDARD(R), IDEAL-STANDARD(R), and
STANDARD(R), through its wholly owned operations in Mexico, Canada, and Brazil
and its majority-owned subsidiaries in Central America.
The Far East Group manufactures bathroom and kitchen fixtures and fittings,
selling under the names AMERICAN-STANDARD(R), IDEAL-STANDARD(R), and STANDARD(R)
through its wholly owned operations in South Korea, its majority-owned
operations in Thailand and the Philippines, and its manufacturing joint venture
in Indonesia and is developing a new joint venture in Vietnam. The Company is
also significantly expanding its operations in the PRC. See - "Globalization".
The market for the Company's plumbing products is divided into the replacement
and remodeling market and the new construction market. The replacement and
remodeling market accounts for about 60% of the European and U.S. groups' sales
but only about 40% of the sales of the Far East group, for which new
construction is more important. In the United States and Europe the replacement
and remodeling market has historically been more stable than the new
construction market and has shown moderate growth over the past several years.
In 1994 the new construction market in Europe continued a recovery which began
in some countries in 1993 after declining generally for several years. In the
U.S. the new construction market hit its recent low in early 1991 but had some
recovery through 1994. The new construction market, in which the product
selection is made by builders or contractors, is more price-competitive and
volume-oriented than the replacement and remodeling market. In the replacement
and remodeling market consumers make the model selection and, therefore, this
market is more responsive to quality and design than price, making it the
principal market for higher-margin luxury products. Although management believes
it must continue to offer a full line of fixtures and fittings in order to
support its distribution system, Plumbing Products' current strategy is to focus
on increasing its sales of higher-margin products in the middle and upper
segments of both the remodeling and new construction markets.
Plumbing Products also has continued its programs to expand its presence in
high-quality showrooms and showplaces featuring its higher-end products in
certain major countries. These programs, along with expanded sales training
activities, have enhanced the image of the Company's products with interior
designers, decorators, consumers and plumbers.
In the United States a Retail Division has been established to focus on the
unique needs of the growing mass retail home center industry, using products
sourced from several of the Company's manufacturing locations throughout the
Americas. This market channel accounted for about 24% of U.S. Plumbings' sales
in 1994, and this proportion is expected to grow.
In an effort to capture a larger share of the replacement and remodeling
market, over the last few years Plumbing Products has introduced a variety of
new products designed to suit customer tastes in particular countries. New
offerings include additional colors and ensembles, bathroom suites from
internationally known designers, and electronically controlled products. Faucet
technology is centered on anti-leak, anti-scald and other features to meet
emerging consumer and legislative requirements.
Water-saving fixtures and fittings have been a major focus of Plumbing Products
for the past several years, particularly in light of recent water shortages
experienced in a number of areas of the U.S. The Company produces one of the
most extensive lines of water-saving fixtures available in the United States.
Manufacture of water-saving toilets was mandated for residential use by federal
law commencing in January 1994 and for commercial use in January 1997.
Many of the Company's bathtubs are made from a proprietary porcelain on metal
composite, AMERICAST(R), which has gained an increasing share of the worldwide
market. Products made from the composite AMERICAST(R) have the durability of
cast iron with only one-half the weight and are characterized by improved
resistance to breaking and chipping. AMERICAST(R) products are easier to ship,
handle and install and are less expensive to produce than cast iron products.
Use of this advanced composite was extended to kitchen sinks, bathroom
lavatories and acrylic surfaced products during 1991 and 1992.
At December 31, 1994, Plumbing Products employed approximately 16,200 people
and, including affiliated companies, had 52 manufacturing plants in 22
countries.
In the U.S. Plumbing Products has several important competitors, including
Kohler Company and Masco Corporation in selected product lines. There are also
important competitors in foreign markets, for the most part operating
nationally. Friederich Grohe GmbH, the major manufacturer of fittings in Europe,
is a pan-European competitor. In Europe Villeroy Boch and Sanitec are the major
fixtures competitors, and in the Far East Toto is the major competitor.
Automotive Products Segment
Automotive Products manufactures air brake and related systems for the
commercial vehicle industry in Europe and Brazil and markets under the WABCO(R)
name. Automotive Products' most important products are pneumatic braking systems
and related electronic control and other systems and components (including ABS)
for medium-size and heavy trucks, tractors, buses, trailers and utility
vehicles. In 1994 Automotive Products, with sales of $759 million, accounted for
17 % of the Company's sales and 17% of its operating income. The Company
believes that Automotive Products is a worldwide technological leader in the
heavy truck and bus braking industry. Electronic controls, first introduced in
ABS in the early 1980's, are increasingly applied in other systems sold to the
commercial vehicle industry.
The Company's Automotive products are sold directly to vehicle and component
manufacturers. Spare parts are sold through both original equipment
manufacturers and an independent distribution network. Although the business is
not dependent on a single or related group of customers, sales of truck braking
systems are dependent on the demand for heavy trucks. Some of the Company's
important customers are Mercedes-Benz, Volvo, Iveco (Fiat), RVI (Renault) and
Rover. Principal competitors are Knorr, Robert Bosch, and Bendix.
The European market for new trucks, buses, trailers, and replacement parts
recovered strongly in 1994 after significant declines in 1992 and 1993. European
legislation mandating the phase-in of ABS beginning in 1991 has had a positive
impact on sales and is expected to continue to do so. The Brazilian market
continued its recovery which began in 1993 after declining in 1992.
The WABCO(R) ABS system, which the Company believes leads the market, has been
installed in approximately 726,000 heavy trucks, buses, and trailers worldwide
since 1981. Annual sales volume in Europe has significantly increased in recent
years to approximately 132,000 units in 1994 and to 44,000 units annually in
other markets, primarily the United States and Japan. In addition, Automotive
Products has developed electronically controlled pneumatic gear shifting
systems, electronically controlled air suspension systems, and automatic
climate-control and door-control systems for the commercial vehicle industry.
These systems have resulted in greater sales per vehicle for Automotive
Products. Significant progress was made in recent years in market acceptance of
electronically controlled systems. New products under development are an
advanced electronic braking system and additional electronic drive line control
systems. In addition, Automotive Products has developed and implemented an
electronic data interchange system, which links certain customers directly to
Automotive Products' information systems, providing timely, accurate information
and just-in-time delivery to the customer.
Automotive Products and affiliated companies have 14 manufacturing facilities
and 7 sales organizations operating in 17 countries. Principal manufacturing
operations are in Germany, France, the United Kingdom, and Brazil. Automotive
Products has joint ventures in the United States with Rockwell International
(Rockwell WABCO), in Japan with Sanwa Seiki (SANWAB), and in India with TVS
Group (Clayton Sundaram). There is also a licensee in the PRC.
In January 1994 the Company acquired Perrot, a German brake manufacturer.
Through this acquisition the Company will be able to offer complete brake
systems for trucks, buses and trailers, especially in the important and growing
air-disc brake business.
Since 1991 ABS for commercial vehicles has been gaining acceptance in the
United States and Japan, where Automotive Products participates through its
joint venture operations. Rockwell WABCO is now a supplier of WABCO systems to
Freightliner, Mack, Volvo-GM, Kenworth, Peterbilt and other vehicle
manufacturers in North America. SANWAB supplies Hino, Nissan and trailer
manufacturers in Japan. In most European countries, ABS has become mandatory for
commercial vehicles. In March 1955, the U.S. Department of Transportation,
National Highway Traffic Safety Administration adopted amended federal
regulations which require that new medium and heavy vehicles be equipped with
antilock brake systems (ABS). These amended regulations will be phased in over a
two-year period beginning in March 1997. Automotive Products believes it is a
good position to take advantage of this opportunity.
At December 31, 1994, Automotive Products employed approximately 5,600 people.
Information concerning revenues and operating profit and loss attributable to
each of the Company's business segments and geographic areas is set forth in the
Company's 1994 Annual Report to Stockholders on pages 10 though 14 under the
caption entitled "Management's Discussion and Analysis" and on page 36 under the
caption entitled "Segment Data" which are incorporated herein by reference, and
information concerning identifiable assets of each of the Company's business
segments is set forth on page 37 of the Company's 1994 Annual Report to
Stockholders under the caption entitled "Segment Data", which is incorporated
herein by reference.
General
Raw Materials
The Company purchases a broad range of materials and components throughout the
world in connection with its manufacturing activities. Major items include
steel, copper tubing, aluminum, ferrous and nonferrous castings, clays, motors,
and electronics. The ability of the Company's suppliers to meet performance and
quality specifications and delivery schedules is important to its operations.
The Company is working closely with its suppliers to integrate them into the
Demand Flow manufacturing process by developing with them just-in-time supply
delivery schedules to coordinate with the Company's customer demand and delivery
schedules. The Company expects this closer working relationship to result in
better control of inventory quantities and quality and lower related overhead
and working capital costs. The energy and materials required for its
manufacturing operations have been readily available, and the Company does not
foresee any significant shortages.
Patents, Licenses and Trademarks
The Company's operations are not dependent to any significant extent upon any
single or related group of patents, licenses, franchises or concessions. The
Company's operations also are not dependent upon any single trademark, although
some trademarks are identified with a number of the Company's products and
services and are of importance in the sale and marketing of such products and
services. Some of the more important of the Company's trademarks are:
Business Segment Trademark
Air Conditioning Products TRANE(R)
AMERICAN-STANDARD(R)
Plumbing Products AMERICAN-STANDARD(R)
IDEAL-STANDARD(R)
STANDARD(R)
Automotive Products WABCO(R)
WABCO WESTINGHOUSE(R)
CLAYTON DEWANDRE
PERROT
The Company from time to time has granted patent licenses to, and has licensed
technology from, other parties.
Research and Product Development
The Company made expenditures of $118 million in 1994, $110 million in 1993, and
$110 million in 1992 for research and product development and for product
engineering. The expenditures for research and product development only were $39
million in 1994, $43 million in 1993 and $40 million in 1992 and were incurred
primarily by Automotive Products and Air Conditioning Products. Automotive
Products, which expended the largest amount, has conducted research and
development in recent years on advanced electronic braking systems, heavy-duty
disc brake systems, and additional electronic control systems for commercial
vehicles. Air Conditioning Products' research and development expenditures were
primarily related to alternative, environmentally-preferred refrigerants,
compressors, heat transfer surfaces, air flow technology, acoustics and
micro-electronic controls. Any amount spent on customer sponsored research and
development activities in these periods was insignificant. Computer software
product development costs capitalized amounted to $2 million in each of 1994 and
1993.
Regulations and Environmental Matters
The Company's U.S. operations are subject to federal, state and local
environmental laws and regulations that impose limitations on the discharge of
pollutants into the air, water and soil and establish standards for the
treatment, storage and disposal of solid and hazardous wastes. A number of the
Company's plants are in the process of making changes or modifications to comply
with such laws and regulations as well as undertaking response actions to
address soil and groundwater issues at certain of its facilities. The Company is
a party to a number of remedial actions under various federal and state
environmental laws and regulations that impose liability on companies to clean
up, or contribute to the cost of cleaning up, sites at which hazardous wastes or
materials were disposed or released, including approximately 30 proceedings
under the Comprehensive Environmental Response, Compensation and Liability Act
and similar state statutes in which the Company has been named a potentially
responsible party or a third party by a potentially responsible party.
Expenditures in 1992, 1993 and 1994 to evaluate and remediate such sites were
not material. On the basis of the Company's historical experience and
information currently available, the Company believes that these environmental
actions will not have a material adverse effect on its financial condition,
results of operations or liquidity.
Additional sites may be identified for environmental remediation in the future,
including properties previously transferred by the Company and with respect to
which the Company may have contractual indemnification obligations. The Company
cannot estimate at this time the ultimate aggregate costs of all remedial
actions because of (a) uncertainties surrounding the nature and application of
environmental regulations, (b) the Company's lack of information about
additional sites at which it may be listed as a potentially responsible party,
(c) the level of clean-up that may be required at specific sites and choices
concerning the technologies to be applied in corrective actions, (d) the number
of contributors and the financial capacity of others to contribute to the cost
of remediation at specific sites and (e) the time periods over which remediation
may occur.
On May 31, 1994, the Company's Salem, Ohio plant received a Request for
Information Pursuant to the Clean Air Act from the U.S. Environmental Protection
Agency (Region 5). This request was fully complied with by July 22, 1994. During
the development of the response, American Standard noted several questions
concerning the status of certain air sources. On August 2, 1994, American
Standard Inc. proposed to enter a consensual "Findings and Orders" with the Ohio
Environmental Protection Agency to resolve these questions. The potential for
and amount of any penalties is uncertain. However, the Company does not expect
that these matters will result in material liabilities.
The Company's international operations are also subject to various
environmental statutes and regulations. Generally, these requirements tend to be
no more restrictive than those in effect in the United States. The Company
believes it is in substantial compliance with such existing domestic and foreign
environmental statutes and regulations.
Although there is currently no federal standard for lead discharge into
drinking water, the Federal Safe Drinking Water Act imposes a limit on the lead
content of plumbing fittings of 8% by weight. In addition, the U.S.
Environmental Protection Agency is considering proposing a maximum federal
standard of approximately 11 to 15 parts per billion of lead leachate from
faucets in drinking water.
On December 15, 1992 the Company, along with 15 other major manufacturers of
plumbing fittings, was sued in the Superior Court of the State of California,
County of San Francisco by the State of California. The same companies were sued
in a companion case, filed the same day, by the Natural Resources Defense
Council and a second environmental group. In each case plaintiffs sought
injunctive relief, civil penalties and compensatory damages, alleging, inter
alia, that faucets sold by the parties discharged lead into drinking water in
excess of minimum standards allegedly established by Proposition 65. Pursuant to
Proposition 65, a discharge of lead into a source of drinking water in excess of
0.5 micrograms per day is prohibited, although the State of California has not
yet established any methodology for measuring this discharge. The Company
believes that the lead limitations should not apply to faucets because faucets
are not a "source" of drinking water as contemplated by the legislation (e.g.,
reservoirs, streams, etc.). The suits also claim that warnings provided with the
fittings relating to such lead discharge are inadequate. Although most of the
Company's fittings contain and discharge some amount of lead, the lead content
of the Company's fittings is one of the lowest in the industry, and all of the
Company's fittings will fall below the proposed federal discharge standard and
fall below the current federal weight standards mentioned above. The Company
believes its exposure in the California suits is minimal, if any. The Company
also believes that its low-lead fittings and its continuing efforts to further
reduce lead content will afford the Company a competitive edge. The discharge
claim in the State's case has been dismissed and has been appealed.
In September 1987 the United States became a signatory to an international
agreement known as the Montreal Protocol on Substances that Deplete the Ozone
Layer (the "Montreal Protocol"). The Montreal Protocol requires its signatories
to reduce production and consumption of CFCs. In November 1992 the Montreal
Protocol was amended in Copenhagen, Denmark, to phase out all except critical
uses of CFCs by January 1, 1996, and to limit consumption of HCFCs beginning in
1996 and phase them out completely by 2030. In 1988 the EPA issued regulations
implementing the Montreal Protocol in the United States. Mexico, the Federal
Republic of Germany, the United Kingdom, France and other countries have also
become signatories to the Montreal Protocol. The manner in which these countries
implement the Montreal Protocol and regulate CFCs could differ from the approach
taken in the United States.
The 1990 Clean Air Act Amendments (the "CAAA") implement the Montreal Protocol
by establishing a program for limiting the production and use of CFCs and other
ozone-depleting chemicals. Under the CAAA the production and consumption of
"Class I substances," including CFCs, are being phased out, and most are
currently scheduled to be banned completely by 1996.
The EPA has taken final action to totally phase out production of CFCs by 1996
and phase out production of the long-lived HCFCs, such as HCFC-22, for use in
new equipment by 2010 and totally by 2020, while adopting the current CAAA
schedule for the short-lived HCFCs, such as HCFC-123, by phasing them out for
use in new equipment by 2020 and completely out of production in 2030.
The Company derived significant revenues in 1993 and prior years from sales of
air conditioning products utilizing Class I substances, particularly CFC-11.
However, the more recent versions of these products are designed to operate with
substitute short-lived Class II substances, such as HCFC-123, which, the Company
believes, under current proposals is not likely to be subject to a phase-out
accelerated from the 2020/2030 schedule of the CAAA, or with refrigerants that
do not affect ozone and are not regulated at all. Beginning with orders accepted
after January 1, 1993, Air Conditioning Products ceased selling CFC-11 with any
of its products.
The Company continues to derive substantial revenues from servicing and
repairing installed equipment that use Class I substances. The emissions from
servicing and repairing of equipment that use Class I substances were regulated
by the EPA beginning in mid-1993, although the Company does not expect these
regulations to have a material adverse effect on its financial condition or
results of operations. The Company believes that these regulations will have the
effect of generating additional product sales and parts and service revenues, as
existing air conditioning equipment operating on CFCs is converted to operate on
environmentally-preferred refrigerants or replaced, although this is likely to
happen only over a number of years and the Company is unable to estimate the
magnitude or timing of such additional conversion or replacements. In addition,
the Company currently offers a number of products that improve the operation of
existing installed equipment using alternative refrigerants.
Prior to the effectiveness of any prohibition on use of Class I or Class II
substances it will be necessary for the Company and its competitors to address
the need to substitute permitted refrigerants for the Class I and Class II
substances used in their products. Adoption of the new refrigerants will require
replacement or modification of much of the air conditioning equipment already
installed. The Company has been working closely with the manufacturers of
refrigerants that are developing substitutes for the CFCs and HCFCs to be phased
out in order to ensure that its products will be compatible with the
substitutes. Although the Company believes that its commercial products
currently in production will not require substantial modification to use
substitutes, residential and light commercial products produced by the Company
and its competitors may require modification for substitute refrigerants. The
costs of the substitution of alternative refrigerants are expected to be
reflected in product pricing and accordingly are not expected to have a material
adverse impact on the Company.
Employees
The Company employed approximately 38,000 people (excluding employees of
unconsolidated joint venture companies) at December 31, 1994. The Company has a
total of 18 labor union contracts in North America (covering approximately 8,500
employees), two of which expire in 1995 (covering approximately 940 employees)
and seven of which expire in 1996 (covering approximately 4,800 employees). Both
of the contracts expiring in 1995 and a contract covering approximately 200
Canadian employees which expired in the last quarter of 1994 have been
successfully renegotiated. There can be no assurance that the Company will
successfully negotiate the labor contracts expiring during 1996 without work
stoppages. However, the Company does not anticipate any problems in
renegotiating those contracts that would materially affect its results of
operations.
In 1994, 230 Plumbing Products employees went on strike for 64 days at the
Landsdowne (Toronto), Canada chinaware manufacturing plant. In 1991, 1,200 Air
Conditioning Products employees went on strike for 54 days at the LaCrosse,
Wisconsin facility and, in 1989, 1,300 Air Conditioning Products workers went on
strike for 40 days at the Clarksville, Tennessee facility. Other than these
strikes, the Company has not experienced any other significant work stoppages
since 1985. The Company also has a total of 40 labor contracts outside North
America (covering approximately 18,000 employees), where the Company has not
experienced any significant work stoppage in the last five years.
Although the Company believes relations with its employees are generally
satisfactory, there can be no assurance that the Company will not experience
significant work stoppages in the future or that its relations with employees
will continue to be satisfactory.
Customers
The business of the Company taken as a whole is not dependent upon any single
customer or a few customers.
International Operations
The Company conducts significant non-U.S. operations through subsidiaries in
most of the major countries of Western Europe, Canada, Brazil, Mexico, Central
American countries, Malaysia, the Philippines, South Korea, Thailand, Taiwan,
Australia and Egypt. In addition, the Company conducts business in these and
other countries through affiliated companies and partnerships in which the
Company owns 50% or less of the stock or partnership interest.
Because the Company has manufacturing operations in 32 countries, fluctuations
in currency exchange rates may have a significant impact on its financial
statements. Such fluctuations have much less effect on local operating results,
however, because the Company for the most part sells its products within the
countries in which they are manufactured. The allocation of purchase costs which
resulted from the Acquisition increased the asset exposure of foreign operations
from an accounting perspective; however, since the Acquisition in 1988, the
effects of exchange volatility have been ameliorated by the denomination in
foreign currencies of a portion of the Company's borrowings.
<PAGE>
ITEM 2. PROPERTIES
At December 31, 1994 the Company conducted its manufacturing activities
through 94 plants in 32 countries, of which the principal facilities are as
follows:
Business Segment
Location Major Products Manufactured at Location
Air Conditioning Clarksville, TN Commercial unitary air conditioning
Products Fort Smith, AK Commercial unitary air conditioning
La Crosse, WI Applied air conditioning systems
Lexington, KY Air handling products
Macon, GA Commercial air conditioning systems
Pueblo, CO Applied air conditioning systems
Rushville, IN Air handling products
Trenton, NJ Residential gas furnaces and air handlers
Tyler, TX Residential air conditioning
Waco, TX Water source heat pumps and air handling
products
Charmes, France Applied air conditioning systems
Epinal, France Applied air conditioning systems
Mirecourt, France Mini-splits and air handling products
Plumbing Products Salem, OH Enameled-steel fixtures and acrylic
bathtubs
Tiffin, OH Vitreous china
Trenton, NJ Vitreous china
Toronto, Canada Vitreous china and enameled-steel
fixtures
Hull, England Vitreous china and acrylic bathtubs
Middlewich, England Vitreous china
Dole, France Vitreous china and acrylic bathtubs
Neuss, Germany Vitreous china
Wittlich, Germany Brass plumbing fittings
Orcenico, Italy Vitreous china
Brescia, Italy Vitreous china
Mexico City, Mexico Vitreous china, water heaters
Monterrey, Mexico Brass plumbing fittings
Bangkok, Thailand Vitreous china
Seoul, South Korea Brass plumbing fittings
Manila, Philippines Vitreous china
Automotive Campinas, Brazil Braking equipment
Products Leeds, England Braking equipment
Claye-Souilly, France Braking equipment
Hanover, Germany Braking equipment
Mannheim, Germany Foundation brakes
Except for the properties located in Mirecourt, France and Manila, Philippines,
all of the plants described above are owned by the Company or a subsidiary. The
properties listed above located in the United States, Canada, and the U.K. are
subject to mortgages securing the Company's obligations under its bank credit
agreement which was amended and restated effective February 9, 1995 (the "1995
Credit Agreement"). The Company is obligated to mortgage the properties listed
above located in France (other than the property located in Mirecourt) to secure
certain obligations under the 1995 Credit Agreement and related documents. In
addition, to the extent required by the respective indentures pursuant to which
certain debt securities of American Standard Inc. were issued, the obligations
<PAGE>
of American Standard Inc. under such debt instruments are secured by mortgages
on principal U.S. properties equally and ratably with indebtedness under the
1995 Credit Agreement. Through joint ventures, the Company participates in the
operation (or is in the process of constructing) up to seven plants in the PRC,
and operates one plant in each of Indonesia and India. The Company considers
that its properties are generally in good condition, are well maintained, and
are generally suitable and adequate to carry on the Company's business.
In 1994 several Air Conditioning Products' plants operated near capacity and
others operated moderately below capacity.
In 1994 Plumbing Products' plants outside the United States operated at levels
of utilization which varied from country to country but overall were
satisfactory. Potteries (plants which produce vitreous china goods) located in
the United States also operated at levels which management believes to be
satisfactory.
Automotive Products' plants generally operated moderately below capacity in
1994.
ITEM 3. LEGAL PROCEEDINGS
American Standard Inc. is the defendant in a lawsuit brought by Entech Sales &
Service, Inc., on behalf of an alleged class of contractors engaged in the
service and repair of commercial air conditioning equipment. The suit, which was
filed on March 5, 1993, in the United States District Court for the Northern
District of Texas, alleges principally that the manner in which Air Conditioning
Products distributes repair service parts for its equipment violates the Federal
antitrust laws. It demands $680 million in damages (which would be subject to
trebling under the antitrust laws) and injunctive relief. American Standard Inc.
has filed an answer denying all claims of violation and is defending itself
vigorously. The district court recently denied class certification with respect
to two of the three violations alleged in the suit. These alleged violations may
now only be asserted by Entech on its own behalf. With respect to the one claim
which was certified as a class action, alleging a price fixing conspiracy,
management believes that, on the basis of the facts now known to it, the claim
is without merit. In management's opinion the litigation will not have any
material adverse effect on the financial position, cash flows, or results of
operations of the Company.
For a discussion of German tax issues see Note 7 of Notes to Consolidated
Financial Statements incorporated by reference herein (see Item 14(a) of Part IV
hereof). For a discussion of environmental issues see "Item 1. Business -
General- Regulations and Environmental Matters."
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
By the written consent dated as of November 2, 1994 of the holder of 45,000,000
shares (adjusted for the 2.5 to 1 stock split effected in December 1994) of the
common stock of the Company, constituting a majority of the common stock
outstanding (the "Majority Stockholder"), an amendment to the Company's
Certificate of Incorporation was adopted (i) effecting a change in the Company's
name to "American Standard Companies Inc." and (ii) providing for
indemnification of directors and officers of the Company and certain other
parties, and allowing for indemnification of employees and agents of the Company
and certain other parties to the fullest extent now or hereafter permitted by
the General Corporation Law of the State of Delaware.
By the written consent of the Majority Stockholder dated as of December 1, 1994,
an amendment to the Company's Certificate of Incorporation was adopted
increasing the authorized number of shares of the Company's common stock from
28,000,000 to 200,000,000 and providing for the issuance of up to 2,000,000
shares of preferred stock, having such terms as the Board of Directors may
determine, and providing for other matters relating to such common stock and
preferred stock.
By the written consent of the Majority Stockholder dated as of December 28,
1994, the following individuals were elected as directors of the Company, each
to serve in office until the next annual meeting of the stockholders of the
Company or until such individual's respective successor shall have been elected
and shall qualify, or until such individual's earlier death, resignation or
removal as provided in the By-Laws of the Company:
Steven E. Anderson Roger W. Parsons
Horst Hinrichs J. Danforth Quayle
Emmanuel A. Kampouris David M. Roderick
George H. Kerckhove John Rutledge
Shigeru Mizushima Joseph S. Schuchert
Frank T. Nickell
<PAGE>
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS OF THE REGISTRANT
In reliance on General Instruction G to Form 10-K, information on executive
officers of the Registrant is included in this Part I. The following table sets
forth certain information as of March 10, 1995 with respect to each person who
is an executive officer of the Company:
<S> <C> <C>
Name Age Position with Company
Emmanuel A. Kampouris.... 60 Chairman, President and Chief Executive Officer, and Director
Horst Hinrichs............ 62 Senior Vice President, Automotive Products, and Director
George H. Kerckhove...... 57 Senior Vice President, Plumbing Products, and Director
Fred A. Allardyce........ 53 Vice President and Chief Financial Officer
Alexander A. Apostolopoulos 52 Vice President and Group Executive, Plumbing Products
Americas
Thomas S. Battaglia...... 52 Vice President and Treasurer
Gary A. Brogoch.......... 44 Vice President and Group Executive, Plumbing Products,
PRC
Roberto Canizares M....... 45 Vice President, Air Conditioning Products, Asia Pacific Zone
Wilfried Delker........... 54 Vice President and Group Executive, Plumbing Products,
Worldwide Fittings
Adrian B. Deshotel....... 49 Vice President, Human Resources
Cyril Gallimore........... 65 Vice President, Systems and Technology
Luigi Gandini............. 56 Vice President and Group Executive, Plumbing Products,
Europe
Daniel Hilger............. 54 Vice President and Group Executive, Air Conditioning Products,
Europe, Middle East and Africa
Joachim D. Huwendiek..... 64 Vice President, Automotive Products, Germany
Frederick W. Jaqua....... 73 Vice President, Special Counsel and Assistant Secretary
Richard A. Kalaher....... 54 Vice President, General Counsel and Secretary
W. Craig Kissel.......... 43 Vice President and Group Executive, Air Conditioning Products,
Unitary Group
William A. Klug.......... 62 Vice President and Group Executive, Air Conditioning Products,
International
Jean-Claude Montauze...... 48 Vice President, Automotive Products, France
G. Eric Nutter........... 59 Vice President, Automotive Products, the United Kingdom
Raymond D. Pipes......... 45 Vice President and Group Executive, Plumbing Products,
Far East
Bruce R. Schiller........ 50 Vice President, Air Conditioning Products,
Compressor Business
James H. Schultz......... 46 Vice President and Group Executive, Air Conditioning Products,
North American Commercial Group
G. Ronald Simon.......... 53 Vice President and Controller
Wade W. Smith............ 44 Vice President, U.S. Plumbing Products
Benson I. Stein.......... 57 Vice President, General Auditor
Robert M. Wellbrock...... 48 Vice President, Taxes
</TABLE>
Each officer of the Company is elected by the Board of Directors to hold office
until the first Board meeting after the Annual Meeting of Stockholders next
succeeding his election.
None of the Company's officers has any family relationship with any director or
other officer. "Family relationship" for this purpose means any relationship by
blood, marriage or adoption, not more remote than first cousin.
Set forth below is the principal occupation of each of the executive officers
named above during the past five years (except as noted, all positions are with
the Company and American Standard Inc.).
Mr. Kampouris was elected Chairman in December 1993 and President and Chief
Executive Officer in February 1989. He is also a director of Daido Hoxan Inc.
Mr. Kampouris has served as a director of the Company since July 1988.
Mr. Hinrichs was elected Senior Vice President, Automotive Products, in
December 1990. Prior thereto he served as Vice President and Group Executive,
Automotive Products, from 1987 to 1990. Mr. Hinrichs has served as a director of
the Company since March 1991.
Mr. Kerckhove was elected Senior Vice President, Plumbing Products, in June
1990. Prior thereto he was Vice President and Group Executive of European
Plumbing Products from 1988 until June 1990. Mr. Kerckhove has served as a
director of the Company since September 1990.
Mr. Allardyce was elected Vice President and Chief Financial Officer in
January 1992. Prior thereto he served as Vice President and Controller from
February 1983 until December 1991.
Mr. Apostolopoulos was elected Vice President and Group Executive, Americas
International Plumbing Products, in December 1990. Prior thereto he served as
the executive in charge of Plumbing Products' joint ventures from September 1989
to November 1990.
Mr. Battaglia was elected Vice President and Treasurer in September 1991.
Prior thereto he was Assistant Treasurer from June 1977.
Mr. Brogoch was elected Vice President and Group Executive, Plumbing Products
in the PRC, in December 1994. Prior thereto he served as Vice President of
Plumbing Products' operations in the PRC from August 1993 until December 1994.
Previously he served as Vice President of Finance and Planning, European
Plumbing Products from August 1991 until August 1993 and as Managing Director of
the Company's Indonesian joint venture from November 1986 to August 1991.
Mr. Canizares was elected Vice President, Air Conditioning Products' Asia
Pacific Zone, in December 1990. Prior thereto he served as the executive in
charge of this zone and Manager of Planning and Distribution from November 1986
to November 1990.
Mr. Delker was elected Vice President and Group Executive, Worldwide Fittings,
Plumbing Products, in April 1990. Prior thereto he served as executive in charge
of the Company's brass fittings manufacturing operations from June 1982 until
March 1990.
Mr. Deshotel was elected Vice President, Human Resources, in January 1992.
Prior thereto he served as Group Vice President, Human Resources, for U.S.
Plumbing Products from January 1980 until December 1991.
Mr. Gallimore was elected Vice President, Systems and Technology, in
December 1990. Prior thereto he served as the executive in charge of
Manufacturing and Technology from 1984 to November 1990.
Mr. Gandini was elected Vice President and Group Executive, European Plumbing
Products, in July 1990. Prior thereto he served as General Manager of Ideal
Standard S.p.A., the Italian subsidiary of the Company, from January 1978 until
June 1990.
Mr. Hilger was elected Vice President and Group Executive, Air Conditioning
Products, in Europe, Middle East and Africa, in June 1988.
Mr. Huwendiek was elected Vice President, Automotive Products in Germany,
in January 1992. Prior thereto he served as Managing Director of WABCO Germany
since June 1987.
Mr. Jaqua was elected Vice President, Special Counsel and Assistant
Secretary in March 1995. Prior to that he was Vice President, General Counsel
and Secretary since April 1989.
<PAGE>
Mr. Kalaher was elected Vice President, General Counsel and Secretary in March
1995, having served as Acting General Counsel and Acting Secretary since June
1994. Prior thereto, he was Vice President and General Counsel of AMAX Inc. from
1991 to 1994 and Vice President and Associate General Counsel from 1985 to 1991.
Mr. Kissel was elected Vice President in charge of Air Conditioning Products'
Unitary Products Group in January 1992, becoming Group Executive in March 1994.
He served as Vice President, Sales and Distribution, for Air Conditioning
Products, from December 1990 until January 1992 and served as divisional Senior
Vice President in charge of U.S. Sales from January to November 1990.
Mr. Klug was elected Vice President in 1985 and has been Group Executive in
charge of Air Conditioning Products' Trane International since December 1993. He
served as Group Executive, Unitary Products Group, from April 1990 until
December 1993. He was Group Executive, North American Sales and Distribution,
Air Conditioning Products, from October 1987 to March 1990.
Mr. Montauze was elected Vice President, Automotive Products in France, in
October 1994. He served as Vice President of Finance and Controller of
Automotive Products at the Brussels headquarters from September 1989 until
September 1994.
Mr. Nutter was elected Vice President, Automotive Products in the United
Kingdom, in January 1992. Prior thereto he served as Vice President and General
Manager of WABCO Automotive U.K. Limited, the United Kingdom automotive
subsidiary of the Company from March 1991 until December 1991 and Group Managing
Director of the United Kingdom automotive subsidiary from June 1987 until
February 1991.
Mr. Pipes was elected Vice President and Group Executive for the Far East
Region of Plumbing Products in May 1992. Prior thereto he served as Managing
Director of American Standard Inc.'s Philippine subsidiary from May 1990 until
April 1992 and was Vice President, Control & Finance, of U.S. Plumbing Products
Group from March 1985 until April 1990.
Mr. Schiller was elected Vice President, Compressor Business (Air Conditioning
Products) in March 1994. Prior thereto he served as General Manager, Compressor
Business Group, from May 1993 to February 1994 and Manager and then General
Manager of the Company's Tyler, Texas, facility from March 1986 to April 1993.
Mr. Schultz was elected Vice President and Group Executive, North American
Commercial Group of Air Conditioning Products, in 1987.
Mr. Simon was elected Vice President and Controller in January 1992. Prior
thereto he served as Vice President and Controller of the Air Conditioning
Products' North American Commercial Group from December 1984 to December 1991.
Mr. Wade W. Smith was elected Vice President, U.S. Plumbing Products, in May
1992. Prior thereto he served as Vice President in charge of the Chinaware
Business Unit of U.S. Plumbing Products from February 1992 until April 1992 and
from April 1987 to February 1992 he was Vice President and General Manager of
the Building Automation Systems Division of the North American Commercial Group
of Air Conditioning Products.
Mr. Stein was elected Vice President, General Auditor, in March 1994; from
December 1986 to February 1994 he was the Company's General Auditor.
Mr. Wellbrock was elected Vice President, Taxes, effective January 1, 1994.
Prior thereto he served as Director of Taxes from 1988 through 1993.
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The common stock of the Company is listed on the New York Stock Exchange, Inc.
(the "Exchange"). The common stock was first traded on the Exchange on February
3, 1995 concurrently with an underwritten initial public offering of shares of
the Company's common stock with an initial price to the public of $20.00 per
share (the "Offering"). Prior to that time there was no established public
trading market for these shares. All share data herein reflect the 2.5 to 1
stock split effected in December 1994.
An Amended and Restated Stockholders Agreement among the Company, Kelso and
management investors was adopted in December 1994. In January 1995 the Company
adopted a Restated Certificate of Incorporation, Amended Bylaws and a
Stockholder Rights Agreement. The Restated Certificate of Incorporation
authorizes the Company to issue up to 200,000,000 shares of common stock, par
value $.01 per share and 2,000,000 shares of preferred stock, par value $.01 per
share of which the Board of Directors designated 900,000 shares as a new series
of Junior Participating Cumulative Preferred Stock. Each outstanding share of
common stock has associated with it one right to purchase a specified amount of
Junior Participating Cumulative Preferred Stock at a stipulated price in certain
circumstances relating to changes in ownership of the common stock of the
Company.
The number of holders of record of the common stock of the Company as of March
10, 1995, was 474.
There were no dividends declared on the Company's common stock in 1993 or 1994.
The Company has no separate operations and its ability to pay dividends or
repurchase its common stock will be totally dependent upon the extent to which
it receives dividends or other funds from American Standard Inc. The terms of
the Company's 1995 Credit Agreement and certain publicly-traded debt securities
of American Standard Inc. prohibit or restrict the payment of dividends and
other extensions of funds by American Standard Inc. to the Company.
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. SELECTED FINANCIAL DATA
Selected Financial Data
(Dollars in millions, except per share data)
Year Ended December 31
<S> <C> <C> <C> <C> <C>
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
Statement of
Operations Data:
Sales $4,457 $ 3,830 $3,792 $ 3,595 $ 3,637
Cost of sales 3,377 2,903 2,852 2,752 2,750
Selling and 779 692 679 615 630
administrative
expenses
Other (income) 57 38 24 8 5
expense
Loss on sale of - - - 22 -
Tyler Refrigeration
Interest expense 259 278 289 286 294
-------- --------- -------- --------- ---------
Income (loss) before
income taxes,
extraordinary item
and (15) (81) (52) (88) (42)
cumulative effect
of change in
accounting method
Income taxes 62 36 5 23 12
Loss before
extraordinary item
and cumulative (77) (117) (57) (111) (54)
effect of
change in
accounting method
Extraordinary loss
on retirement (9) (92) - - -
of debt (a)
Cumulative effect of
change in - - - (32) -
----------- ------------ ----------- --------- -----------
accounting method
(b)
Net Loss (86) (209) (57) (143) (54)
Preferred dividend - (8) (16) (14) (12)
---------- ----------- --------- --------- ----------
(c)
Net loss applicable $ (86) $ (217) $ (73) $ (157) $ (66)
======== ========= ======= ======== =========
to common shares
Per Common Share (d):
Loss before
extraordinary item
and cumulative $(1.29) $(2.11) $(1.24) $ (2.14) $ (1.12)
effect of
change in
accounting method
Extraordinary loss
on retirement (.15) (1.55) - - -
of debt
Cumulative effect
of change in - - - (.55)
--------- ------------- ------------- --------- ----------
accounting method -
Net loss per common $(1.44) $ (3.66) $ (1.24) $ (2.69) $ (1.12)
======= ========= ========= ======== ==========
share
Average number of
outstanding 59,933,435 59,313,073 58,636,118 58,338,195 58,597,918
common shares and
equivalents
Balance Sheet Data
(at end of
period):
Working capital $(14) $ 80 $ 292 $ 228 $ 347
Goodwill (net) 1,053 1,026 1 102 1,208 1,323
Total assets 3,156 2,987 3,126 3,270 3,488
Total debt 2,364 2,336 2,145 2,180 2,287
Exchangeable - - 133 117 104
preferred stock (c)
Stockholders' (798) (723) (449) (350) (200)
deficit
<FN>
Footnotes appear on the following page.
</FN>
</TABLE>
<PAGE>
Footnotes to Selected Financial Data:
(a) The retirements of debt in connection with a 1993 refinancing and a
1994 October borrowing resulted in extraordinary charges of $92 million
in 1993 and $9 million in 1994 (including call premiums, the write-off
of deferred debt issuance costs, and in 1993 the loss on cancellation
of foreign currency swap contracts) on which there were no tax benefits
(see Notes 7 and 10 of Notes to Consolidated Financial Statements
included in the Company's 1994 Annual Report to Stockholders and
incorporated herein by reference).
(b) Represents the cumulative effect of the accounting changes related to
postretirement benefits other than pensions and warranty contract
revenues at January 1, 1991. The cumulative effect of these accounting
changes increased the postretirement benefit and warranty accruals at
January 1, 1991 by $52 million and increased the net loss in the year
by a total of $32 million (net of the tax effect).
(c) In June 1993 the exchangeable preferred stock was exchanged for 12 3/4%
Junior Subordinated Debentures which were redeemed on November 21,
1994.
(d) Per share data and average number of outstanding common shares and
equivalents data reflect the 2.5 to 1 stock split effected in December
1994.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
Management's discussion and analysis of the financial condition and results of
operations of the Company is set forth on pages 10 through 17 of the Company's
1994 Annual Report to Stockholders and is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Incorporated herein by reference from the Company's 1994 Annual Report to
Stockholders are the financial statements and related information listed under
the heading "1. Financial Statements" in the Index to Financial Statements and
Financial Statement Schedules on page 28 hereof.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning the directors of the Company is set forth in the
Company's definitive Proxy Statement dated March 27, 1995: in the first and
fourth paragraphs under the section entitled "1. Election of Directors" on page
4 thereof and under the section entitled "Directors" on pages 5 and 6 thereof;
and is incorporated herein by reference.
For information concerning the executive officers of the Company, see
"Executive Officers of the Registrant" under Part I of this report.
None of the Company's directors or officers has any family relationship with
any other director or officer. ("Family relationship" for this purpose means any
relationship by blood, marriage or adoption, not more remote than first cousin.)
ITEM 11. EXECUTIVE COMPENSATION
Information concerning executive compensation and related matters is set forth
in the Company's definitive Proxy Statement dated March 27, 1995 as follows:
under the section entitled "Directors' Fees and Other Arrangements" on page 7
thereof, under the section entitled "Executive Compensation" on pages 9 through
13 thereof, under the section entitled "Compensation Committee Interlocks and
Insider Participation" on page 15 and in the second through seventh paragraphs
of the section entitled "Certain Relationships and Related Party Transactions"
on pages 15 through 17 thereof, and is incorporated herein by reference except
for the section entitled "Management Development and Nominating Committee Report
on Compensation of Executive Officers of the Company" appearing on pages 13
through 15.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information concerning shares of common stock of the Company beneficially owned
by management and others is set forth under the section entitled "Stock
Ownership" on pages 3 and 4 in the Company's definitive Proxy Statement dated
March 27, 1995 and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is set forth in the Company's definitive
Proxy Statement dated March 27, 1995 under the section entitled "Certain
Relationships and Related Party Transactions" on pages 15 through 17 thereof and
is incorporated herein by reference.
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) 1 and 2. Financial statements and financial statement schedules
The financial statements and financial statement schedules are
listed in the accompanying index to financial statements on
page 27 of this annual report on Form 10-K. The financial
statements indicated on the index appearing on page 27 hereof
are incorporated herein by reference.
3. Exhibits
The exhibits are listed on the accompanying index to exhibits
and are incorporated herein by reference or are filed as part
of this annual report on Form 10-K.
(b) Reports on Form 8-K for the quarter ended December 31, 1994.
During the fourth quarter ended December 31, 1994, the
Registrant filed a Current Report on Form 8-K dated November
10, 1994 reporting an Amendment to its Certificate of
Incorporation to (a) change the name of the Registrant from
ASI Holding Corporation to American Standard Companies Inc.
and (b) add indemnification provisions to the Registrant's
Certificate of Incorporation.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
AMERICAN STANDARD COMPANIES INC.
By: /s/ EMMANUEL A. KAMPOURIS
(Emmanuel A. Kampouris)
Chairman, President and Chief Executive Officer
March 31 , 1995
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated on March 31, 1995:
/s/ Emmanuel A. Kampouris
(Emmanuel A. Kampouris) Chairman, President and Chief Executive
(Principal Officer; Director Executive Officer)
/s/ FRED A. ALLARDYCE
(Fred A. Allardyce) Vice President and Chief Financial Officer
(Principal Financial Officer)
/s/ G. RONALD SIMON
(G. Ronald Simon) Vice President and Controller
(Principal Accounting Officer)
/s/ STEVEN E. ANDERSON
(Steven E. Anderson) Director
/s/ HORST HINRICHS
(Horst Hinrichs) Director
/s/ GEORGE H. KERCKHOVE
George H. Kerckhove) Director
/s/ SHIGERU MIZUSHIMA
(Shigeru Mizushima) Director
/s/ FRANK T. NICKELL
(Frank T. Nickell) Director
/s/ ROGER W. PARSONS
(Roger W. Parsons) Director
/s/ J. DANFORTH QUAYLE
(J. Danforth Quayle) Director
/s/ DAVID M. RODERICK
(David M. Roderick) Director
/s/ JOHN RUTLEDGE
(John Rutledge) Director
/s/ JOSEPH S. SCHUCHERT
(Joseph S. Schuchert) Director
<PAGE>
INDEX TO FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULES
COVERED BY
REPORT OF CERTIFIED PUBLIC ACCOUNTANTS
1994
Annual Report
to
Stockholders
(Pages)
1. Financial Statements (incorporated by reference from the
Company's 1994 Annual Report 1994 Annual Report to Stockholders
Consolidated Balance Sheet at December 31, 1994, and 1993 22
Years ended December 31, 1994, 1993, and 1992:
Consolidated Statement of Operations 21
Consolidated Statement of Cash Flows 23
Consolidated Statement of Stockholders'Deficit 24
Notes to Financial Statements 25-35
Segment Data 36-37
Quarterly Data (Unaudited) 38
Report of Independent Auditors 20
Form
10-K
(Pages)
2. Financial statement schedules,years ended
December 31, 1994, 1993, and 1992
III Condensed Financial Information of Registrant 29-32
VIII Valuation and Qualifying Accounts 34
All other schedules have been omitted because the information is not
applicable or is not material or because the information required is
included in the financial statements or the notes thereto.
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Annual Report (Form
10-K) of American Standard Companies Inc. of our report dated February 16,
1995 included in the 1994 Annual Report to Stockholders of American Standard
Companies Inc.
Our audits also included the financial statement schedules of American
Standard Companies Inc. listed in Item 14(a). These schedules are the
responsibility of the Company's management. Our responsibility is to express
an opinion based on our audits. In our opinion, the financial statement
schedules referred to above, when considered in relation to the basic
financial statements taken as a whole, present fairly in all material
respects the information set forth therein.
Ernst & Young LLP
New York, New York
March 29, 1995
<PAGE>
SCHEDULE III -- CONDENSED FINANCIAL INFORMATION OF REGISTRANT
STATEMENTS OF OPERATIONS (Parent Company Separately)
(Dollars in thousands)
Year Ended December 31
1994 1993 1992
---- ---- ----
Interest income $ 219 $ 188 $ 273
Interest expense 219 188 273
Equity in net loss of subsidiary (86,421) (208,567) (57,238)
--------- --------- ---------
Net loss $(86,421) $(208,567) $(57,238)
========= ========== =========
See notes to financial statements
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III - CONDENSED FINANCIAL INFORMATION OF
REGISTRANT - (Continued)
BALANCE SHEET (Parent Company Separately)
(Dollars in thousands)
December 31,
<S> <C> <C>
ASSETS
1994 1993
---- ----
Investment in subsidiary $(774,560) $(695,287)
LIABILITIES
Loan payable to subsidiary 1,640 2,588
Stock repurchase obligation (Note C) 21,429 24,938
STOCKHOLDERS' DEFICIT
Common stock, $.01 par value, 200,000,000 shares authorized;
shares issued and outstanding, 60,932,457 in 1994; 61,424,123 in 1993 609 614
Capital surplus 194,236 188,369
Subscriptions receivable (1,640) (2,588)
ESOP shares 0 (4,331)
Accumulated deficit (836,424) (750,003)
Foreign currency translation effects (151,721) (149,220)
Minimum pension liability adjustment (2,689) (5,654)
------------ -------------
Total stockholders'deficit (797,629) (722,813)
<FN>
--------- ---------
$(774,560) $(695,287)
See notes to financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
SCHEDULE III -- CONDENSED FINANCIAL INFORMATION OF REGISTRANT
STATEMENT OF CASH FLOWS (Parent Company Separately)
(Dollars in thousands)
<CAPTION>
Year Ended December 31,
1994 1993 1992
<S> <C> <C> <C>
---- ---- ----
Cash flows from operating activities:
Net loss $(86,421) $(208,567) $(57,238)
Adjustments to reconcile net loss to net cash provided by
operating activities
Equity in net loss of subsidiary 86,421 208,567 57,238
Net cash flow from operating activities 0 0
0
Cash provided (used) by investing activities:
Investment in subsidiary (3,976) (4,585) (3,105)
Purchase of common stock by subsidiary 16,927 12,194 10,950
Net cash provided by investing activities 12,951 7,609 7,845
Cash provided (used) by financing activities:
Issuance of common stock 3,976 4,585 3,105
Common stock repurchases (16,927) (12,194) (10,950)
Repayments on subscriptions receivable 786 482 653
Repayment of loan from subidiary (786) (482) (653)
------------ -------------- -----------
Net cash used by financing activities (12,951) (7,609) (7,845)
---------- ------------- ----------
Net change in cash and cash equivalents $ 0 $ 0 $ 0
============== ============== =============
<FN>
See notes to financial statements.
</FN>
</TABLE>
<PAGE>
SCHEDULE III -- CONDENSED FINANCIAL INFORMATION
ON REGISTRANT -- (Continued)
NOTES TO FINANCIAL STATEMENTS (Parent Company Separately)
(A) The notes to the consolidated financial statements of American
Standard Companies Inc., formerly ASI Holding Corporation (the
"Parent Company"), are an integral part of these condensed
financial statements.
(B) The Parent Company was organized by Kelso & Company, L.P., a
private merchant banking firm, to participate in the
acquisition of American Standard Inc. (the "Acquisition") in
1988. American Standard Inc.'s common stock is owned solely by
the Parent Company. The Parent Company has no other
investments or operations.
(C) The Parent Company has sold its common stock to
management employees in connection with the Acquisition and
issued common stock under various employee benefit and
incentive plans including the ESOP. As no public market
existed for the stock prior to the initial public offering
in the first quarter of 1995 (see Note D), the Parent
Company, to provide liquidity to employees who have
terminated employment, has made purchases of such employees'
stock. Subsequent to December 2, 1994 the Parent Company is
no longer obligated to make such purchases. Purchases
through December 31, 1994, were based upon fair market value
appraisals obtained in connection with the ESOP. The amount
paid on such stock purchases is subject to an annual
limitation contained in American Standard Inc.'s lending
arrangements and debt instruments (the "Annual Limitation").
As the amount owed to terminated employees has exceeded the
Annual Limitation, a liability for the unpaid balance has
been recorded on the financial statements of the Parent
Company with a concomitant reduction in common stock and
capital surplus accounts.
(D) In the first quarter of 1995 the Parent Company sold
15,112,300 shares of its common stock in an initial public
offering at an initial price to the public of $20 per share.
This offering yielded net proceeds of approximately $282
million (including proceeds from the exercised portion of
the underwriters' over-allotment option and after deducting
underwriting discounts and expenses), which were transferred
to American Standard Inc. and used to reduce its
indebtedness . Of the total net proceeds transferred, $270
million was contributed to the capital of American Standard
Inc. and $12 million was advanced under an intercompany
demand note.
<PAGE>
<TABLE>
SCHEDULE VIII - VALUATION AND QUALIFYING ACCOUNTS Years ended
December 31, 1994, 1993, and 1992
(Dollars in thousands)
<CAPTION>
Description Foreign
Balance Additions Currency Balance
Beginning Charged to Other Translation End of
of Period Income Deductions Changes Effects Period
<S> <C> <C> <C> <C> <C> <C>
1994:
Reserve deducted from assets:
Allowance for doubtful
accounts receivable $ 15,666 $ 10,208 $(6,868)(A) $ 533 $ 30 $ 19,569
Reserve for post-retirement
benefits $ 387,038 $ 44,352 $(23,062)(B) $ 3,188(C) $ 26,192 $ 437,708
1993:
Reserve deducted from assets:
Allowance for doubtful
accounts receivable $ 12,827 $ 10,118 $(6,584)(A) $ -- $ (695) $ 15,666
Reserve for post-retirement
benefits $ 368,868 $ 48,827 $(25,815)(B) $11,832 (D) $ (16,674) $ 387,038
1992:
Reserve deducted from assets:
Allowance for doubtful
accounts receivable $ 14,667 $ 6,489 $(7,262)(A) $ - $ (1,067) $ 12,827
Reserve for post-retirement
benefits $ 357,878 $ 47,374 $(24,495)(B) $ - $ (11,889) $ 368,868
<FN>
The reserve for postretirement benefits excludes the activity for currently funded U.S. pension plans.
(A) Accounts charged off.
(B) Payments made during the year.
(C) Includes $3 million reduction in minimum pension liability primarily offset by $5 million from acquisition of new
business.
(D) Includes $19 million increase in minimum pension liability offset by a
$7 million reduction resulting from curtailment of certain plans.
</FN>
</TABLE>
<PAGE>
MERICAN STANDARD COMPANIES INC.
INDEX TO EXHIBITS
(Item 14(a)3 - Exhibits Required by Item 601
of Regulation S-K and Additional Exhibits)
(The Commission File Number of American Standard Companies Inc. (formerly named
ASI Holding Corporation), the Registrant (sometimes hereinafter referred to as
"Holding"), and for all Exhibits incorporated by reference, is 1-11415, except
those Exhibits incorporated by reference in filings made by American Standard
Inc. (the "Company") whose Commission File Number is 1-470. Prior to filing its
Registration Statement on Form S-2 on November 10, 1994, Holding's Commission
File Number was 33-23070.)
(3) (i) Restated Certificate of Incorporation of Holding; previously filed
as Exhibit 3(i) in Amendment No. 4 to Registration Statement No. 33-56409 under
the Securities Act of 1933, as amended, filed January 31, 1995, and herein
incorporated by reference.
(ii) Amended By-Laws of Holding; previously filed as Exhibit 3(ii) in
Amendment No. 4 to Registration Statement No. 33-56409 under the Securities Act
of 1933, as amended, filed January 31, 1995, and herein incorporated by
reference.
(4) (i) Form of Common Stock Certificate previously filed as Exhibit 4(i)
in Amendment No. 3 to Registration Statement No. 33-56409 under the Securities
Act of 1933, as amended, filed January 5, 1995, and herein incorporated by
reference.
(ii) Indenture, dated as of November 1, 1986, between the Company and
Manufacturers Hanover Trust Company, Trustee, including the form of 9-1/4%
Sinking Fund Debenture Due 2016 issued pursuant thereto on December 9, 1986, in
the aggregate principal amount of $150,000,000; previously filed as Exhibit 4
(iii) in the Company's Form 10-K for the fiscal year ended December 31, 1986,
and herein incorporated by reference.
(iii) Instrument of Resignation, Appointment and Acceptance, dated as of
April 25, 1988 among the Company, Manufacturers Hanover Trust Company (the
"Resigning Trustee") and Wilmington Trust Company
<PAGE>
(the "Successor Trustee"), relating to resignation of the Resigning Trustee
and appointment of the Successor Trustee, under the Indenture referred to in
Exhibit (4) (ii) above; previously filed as Exhibit (4) (ii) in Registration
Statement No. 33-64450 of the Company under the Securities Act of 1933, as
amended, and herein incorporated by reference.
(iv) Indenture, dated as of May 15, 1992, between the Company and First
Trust National Association, Trustee, relating to the Company's 10-7/8% Senior
Notes due 1999, in the aggregate principal amount of $150,000,000; copy of
Indenture previously filed as Exhibit (4) (i) by the Company in its Form 10-Q
for the quarter ended June 30, 1992, and herein incorporated by reference.
(v) Form of 10-7/8% Senior Notes due 1999 included as Exhibit A to the
Indenture described in (4) (iv) above.
(vi) Indenture dated as of May 15, 1992, between the Company and First
Trust National Association, Trustee, relating to the Company's 11-3/8% Senior
Debentures due 2004, in the aggregate principal amount of $250,000,000; copy of
Indenture previously filed as Exhibit (4) (iii) by the Company in its Form 10-Q
for the quarter ended June 30, 1992, and herein incorporated by reference.
(vii) Form of 11-3/8% Senior Debentures due 2004 included as Exhibit A to
the Indenture described in (4) (vi) above.
(viii) Form of Indenture, dated as of June 1, 1993, between the Company
and United States Trust Company of New York, as Trustee, relating to the
Company's 9-7/8% Senior Subordinated Notes Due 2001; previously filed as Exhibit
(4) (xxxi) in Amendment No. 1 to Registration Statement No. 33-61130 of the
Company under the Securities Act of 1933, as amended, and herein incorporated by
reference.
(ix) Form of Note evidencing the 9-7/8% Senior Subordinated Notes Due
2001 included as Exhibit A to the Form of Indenture referred to in (4) (viii)
above.
(x) Form of Indenture, dated as of June 1, 1993, between the Company and
<PAGE>
United States Trust Company of New York, as Trustee, relating
to the Company's 10-1/2% Senior Subordinated Discount Debentures Due 2005;
previously filed as Exhibit (4) (xxxiii) in Amendment No. 1 to Registration
statement No. 33-61130 of the Company under the Securities Act of 1933, as
amended, and herein incorporated by reference.
(xi) Form of Debenture evidencing the 10-1/2% Senior Subordinated Discount
Debentures Due 2005 included as Exhibit A to the Form of Indenture referred to
in (4) (x) above.
(xii) Assignment and Amendment Agreement, dated as of June 1, 1993, among
the Company, Holding, certain subsidiaries of the Company, Bankers Trust
Company, as agent under the 1988 Credit Agreement, the financial institutions
named as Lenders in the 1988 Credit Agreement and certain additional Lenders and
Chemical Bank, as Administrative Agent and Arranger; previously filed as Exhibit
(4)(xiii) in Amendment No. 1 to Registration Statement No. 33-64450 of the
Company under the Securities Act of 1933, as amended, and herein incorporated by
reference.
(xiii) Credit Agreement, dated as of June 1, 1993, among the Company,
Holding, certain subsidiaries of the Company and the lending institutions listed
therein, Chemical Bank, as Administrative Agent and Arranger; Bankers Trust
Company, The Bank of Nova Scotia, The Chase Manhattan Bank, N.A., Deutsche Bank
AG, The Long-Term Credit Bank of Japan, Ltd., New York Branch, and NationsBank
of North Carolina, N.A., as Managing Agents, and Banque Paribas, Citibank, N.A.,
and Compagnie Financiere de CIC et de l'Union Europeenne, New York Branch, as
Co-Agents; previously filed as Exhibit (4) (xiv) in Amendment No. I to
Registration Statement No. 33-64450 of the Company under the Securities Act of
1933, as amended, and herein incorporated by reference.
(xiv) First Amendment, Consent and Waiver, dated as of February 10, 1994,
to the Credit Agreement referred to in (4) (xiii) above; previously filed as
Exhibit (4) (xvii) by the Company in its Form 10-K for the fiscal year ended
December 31, 1993, and herein incorporated by reference.
(xv) Second Amendment, dated as of October 21, 1994, to the Credit
Agreement referred to in paragraph (4) (xiii) above; previously filed as Exhibit
(4) (xviii) in Registration Statement No. 33-56409 under the Securities Act of
1933, as amended, filed November 10, 1994, and herein incorporated by reference.
(xvi) Assignment and Amendment Agreement dated as of February 9, 1995,
among Holding, the Company, certain subsidiaries of the Company, and the
financial institutions listed in Schedule I thereto (the Original Lenders); the
financial institutions listed in Schedule II thereto (the Continuing Lenders),
including Chemical Bank as Administrative Agent for the Original Lenders and
Continuing Lenders and as Collateral Agent for the Original Lenders and
Continuing Lenders.
(xvii) Amended and Restated Credit Agreement, dated as of February 9,
1995, among Holding, the Company, certain subsidiaries of the Company and the
lending institutions listed therein, Chemical Bank, as Administrative Agent;
Citibank, N.A. and NationsBank, N.A. (Carolinas), as Senior Managing Agents;
Bank of America Illinois, The Bank of Nova Scotia, Bankers Trust Company, The
Chase Manhattan Bank, N.A., Compagnie Financiere de CIC et de L' Union
Europeenne, Credit Suisse, Deutsche Bank AG, The Industrial Bank of Japan Trust
Company, The Long Term Credit Bank of Japan, Limited and The Sumitomo Bank,
Ltd., as Managing Agents; and The Bank of New York, Canadian Imperial Bank of
Commerce, The Fuji Bank, Limited and The Sanwa Bank Limited, as Co-Agents, with
exhibits but without schedules. (This Amended and Restated Credit Agreement
replaces the Credit Agreement dated as of June 1, 1993 (the " 1993 Credit
Agreement") referred to in Exhibit (4) (xiii) above, but the Security Documents
and the Guarantee Documents entered into pursuant to the 1993 Credit Agreement
continue in force and effect as amended by the Credit Documents Amendment
Agreement dated as of February 9, 1995 described in Exhibit (4) (xviii) below.
(xviii) Credit Documents Amendment Agreement dated as of February 9,
1995, among Holding, the Company, certain domestic and foreign subsidiaries of
the Company, and Chemical Bank, as Administrative Agent and as Collateral Agent
for the Lenders under the Amended and Restated Credit Agreement dated as of
February 9, 1995, described in Exhibit (4) (xvii) above.
(xix) Stockholders Agreement, dated as of July 7, 1988, as amended as
of August 1, 1988, among Holding, Kelso ASI Partners, L.P., and the Management
Stockholders named therein; previously filed as Exhibit 4.19 in Amendment No. 2
to the Registration Statement No. 33-23070 of Holding under the Securities Act
of 1933, as amended, and herein incorporated by reference.
(xx) Amendment to Section 2.1 of the Stockholders Agreement referred to
in paragraph (4) (xix) above, effective as of January 1, 1991; previously filed
as Exhibit (4) (xxvii) by Holding in its Form 10-K for the fiscal year ended
December 31, 1992, and herein incorporated by reference.
(xxi) Supplement and Amendment dated as of September 4, 1991 to the
Stockholders Agreement dated as of July 7, 1988, as amended, referred to in
paragraph (4) (xix) above; previously filed as Exhibit (4) (ii) in Holding's
Form 10-Q for the quarter ended September 30, 1991, and herein incorporated by
reference.
(xxii) Amended Paragraph 6. 1 of the Stockholders Agreement referred to
in paragraph (4) (xix) above, effective as of September 2, 1993; previously
filed as Exhibit (4) (xxi) in Holding's Form 10-K for the fiscal year ended
December 31, 1993, and herein incorporated by reference.
(xxiii) Revised Schedule of Priorities, effective as of November 21,
1994, as adopted by the Board of Directors of Holding pursuant to the
Stockholders Agreement dated as of July 7, 1988, as amended, referred to in
paragraph (4) (xix) above.
(xxiv) Amended and Restated Stockholders Agreement, dated as of December 2,
1994, among Holding, Kelso ASI Partners, L.P. and the Management Stockholders
named therein; previously filed as Exhibit 4 (xxi) in Amendment No. 1 to
Registration Statement No. 33-56409 under the Securities Act of 1933, as
amended, filed December 20, 1994, and herein incorporated by reference.
(xxv) Form of Rights Agreement, dated as of January 5, 1995 between Holding
and Citibank, N.A. as Rights Agent.
(10)1 (i) American Standard Inc. Long-Term Incentive Compensation Plan, as
amended and restated as of February 3, 1995; copy of plan is being filed as
Exhibit (10) (i) by the Company in its Form 10-K for the fiscal year ended
December 31, 1994, concurrently with the filing of Holding's Form 10-K for the
same year, and herein incorporated by reference.
(ii) Trust Agreement for American Standard Inc. Long-Term Incentive
Compensation Plan and Supplemental Incentive Plan, as amended and restated as of
February 3, 1995; copy of Trust Agreement is being filed as Exhibit (10) (ii) by
the Company in its Form 10-K for the fiscal year ended December 31, 1994,
concurrently with the filing of Holding's Form 10-K for the same year, and
herein incorporated by reference.
(iii) American Standard Inc. Annual Incentive Plan; previously filed as
Exhibit (10) (vii) by the Company in its Form 10-K for the fiscal year ended
December 31, 1988, and herein incorporated by reference.
(iv) American Standard Inc. Management Partners' Bonus Plan effective
as of July 7, 1988; previously filed as Exhibit (10) (i) in the Company's Form
10-Q for the quarter ended September 30, 1988, and herein incorporated by
reference; amendments to Plan adopted on June 7, 1990, previously filed as
Exhibit (4) (ii) in the Company's Form 10-Q for the quarter ended June 30, 1990,
and herein incorporated by reference.
(v) American Standard Inc. Executive Supplemental Retirement Benefit
Program, as restated to include all amendments through December 31, 1993;
previously filed as Exhibit (10) (vii) by the Company in its Form 10-K for the
fiscal year ended December 31, 1993, and herein incorporated by reference.
(vi) American-Standard Employee Stock Ownership Plan, as amended and
restated as of January 1, 1994; copy of Amendment is being filed as Exhibit (10)
(vi) by the Company in its Form 10-K for the fiscal year ended December 31,
1994, concurrently with the filing of Holding's Form 10-K for the same year, and
herein incorporated by reference.
(vii) Amendment No. 1 to American Standard Employee Stock Ownership Plan
described in Exhibit (10) (vi) above, authorized December 1, 1994; copy of
Amendment is being filed as Exhibit (10) (vii) by the Company in its Form 10-K
for the fiscal year ended December 31, 1994, concurrently with the filing of
Holdings Form 10-K for the same year, and herein incorporated by reference.
(viii) Amendment No. 2 to American Standard Employee Stock Ownership
Plan described in Exhibit (10) (vi) above, authorized March 2, 1995; copy of
Amendment is being filed as Exhibit (10) (viii) by the Company in its Form 10-K
for the fiscal year ended December 31, 1994, concurrently with the filing of
Holding's Form 10-K for the same year, and herein incorporated by reference..
(ix) American-Standard Employee Stock Ownership Trust Agreement, dated
as of December 1, 1991, between ASI Holding Corporation and Fidelity Management
Trust Company (as successor to Citizens & Southern Trust Company (Georgia),
N.A.), as trustee; previously filed as Exhibit (10) (xiv) by the Company in its
Form 10-K for the fiscal year ended December 31, 1991, and herein incorporated
by reference.
(x) Consulting Agreement made July 1, 1988, with Kelso & Company, L.P.
concerning general management and financial consulting services to the Company;
previously filed as Exhibit (10) (xviii) in the Company's Form 10-K for the
fiscal year ended December 31, 1988, and herein incorporated by reference.
(xi) Agreement, dated as of December 2, 1994, among Holding, the
Company and Kelso & Company, L.P., amending the Consulting Agreement referred to
in paragraph (10) (x) above; previously filed as Exhibit (10) (xi) in Amendment
No. 1 to Registration Statement No. 33-56409 under the Securities Act of 1933,
as amended, filed December 20, 1994, and herein incorporated by reference.
(xii) American Standard Inc. Supplemental Compensation Plan for Outside
Directors, as amended through February 3, 1995; a copy of the Plan is being
filed as Exhibit (10) (xii) by the Company in its Form 10-K for the fiscal year
ended December 31, 1994, concurrently with the filing of Holding's Form 10-K for
the same year, and herein incorporated by reference.
(xiii) ASI Holding Corporation 1989 Stock Purchase Loan Program;
previously filed as Exhibit (10) (i) in Holdings Form 10-Q for the quarter ended
September 30, 1989, and herein incorporated by reference.
(xiv) Corporate Officers Severance Plan adopted by the Company in
December, 1990, effective April 27, 1991; previously filed as Exhibit (10) (xix)
by the Company in its Form 10-K for the fiscal year ended December 31, 1990, and
herein incorporated by reference.
(xv) Estate Preservation Plan, adopted by the Company in December,
1990; previously filed as Exhibit (10) (xx) by the Company in its Form 10-K for
the fiscal year ended December 31, 1990, and herein incorporated by reference.
(xvi) Amendment adopted in March 1993 to Estate Preservation Plan referred
to in (10) (xv) above; previously filed as Exhibit (10)(xvii) by the Company in
its Form 10-K for the fiscal year ended December 31, 1993 and herein
incorporated by reference.
(xvii) Summary of terms of Unfunded Deferred Compensation Plan adopted
December 2, 1993; previously filed as Exhibit (10) (xviii) by the Company in its
Form 10-K for the fiscal year ended December 31, 1993 and herein incorporated by
reference.
(xviii) American Standard Companies Inc. Stock Incentive Plan; previously
filed as Exhibit (10) (xx) in Amendment No. 3 to Registration Statement No.
33-56409 under the Securities Act, as amended, filed January 5, 1995, and herein
incorporated by reference.
(xix) American Standard Inc. and Subsidiaries 1994-1995 Supplemental
Incentive Compensation Plan (formerly named TNE Incentive Plan), as amended
through February 3, 1995; copy of Plan is being filed as Exhibit (10) (xviii) by
the Company in its Form 10-K for the fiscal year ended December 31, 1994,
concurrently with the filing of Holding's Form 10-K for the same year, and
herein incorporated by reference.
(xx) Form of Indemnification Agreement; previously filed as Exhibit (10)
(xxi) in Amendment No. 3 to Registration Statement No. 33-56409 under the
Securities Act of 1933, as amended, filed January 5, 1995, and herein
incorporated by reference.
(13) 1994 Annual Report to Stockholders. (Only those portions specifically
incorporated by reference are filed; no other portions of the Annual Report are
to be deemed filed.)
(21) Listing of Holding's subsidiaries.
(27) Financial Data Schedule.
1Items in this series 10 consist of management contracts or compensatory
plans or arragnements with the exception of (10)(x) and (xi).
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1.00000
<CASH> 89,069
<SECURITIES> 3,680
<RECEIVABLES> 614,808
<ALLOWANCES> 19,569
<INVENTORY> 323,220
<CURRENT-ASSETS> 1,064,543
<PP&E> 1,242,864
<DEPRECIATION> 430,180
<TOTAL-ASSETS> 3,156,118
<CURRENT-LIABILITIES> 1,078,693
<BONDS> 2,152,291
<COMMON> 0
0
0
<OTHER-SE> (797,629)
<TOTAL-LIABILITY-AND-EQUITY> 3,156,118
<SALES> 4,457,465
<TOTAL-REVENUES> 4,457,465
<CGS> (3,377,271)
<TOTAL-COSTS> (3,377,271)
<OTHER-EXPENSES> (57,381)
<LOSS-PROVISION> (10,208)
<INTEREST-EXPENSE> (259,437)
<INCOME-PRETAX> (15,174)
<INCOME-TAX> 62,512
<INCOME-CONTINUING> (77,686)
<DISCONTINUED> 0
<EXTRAORDINARY> (8,735)
<CHANGES> 0
<NET-INCOME> (86,421)
<EPS-PRIMARY> (1.440)
<EPS-DILUTED> (1.440)
</TABLE>
15
ASSIGNMENT AND AMENDMENT AGREEMENT dated as of
February 9, 1995, among AMERICAN STANDARD COMPANIES INC.,
formerly known as ASI Holding Corporation, a Delaware
corporation ("Holding"); AMERICAN STANDARD INC., a
Delaware corporation ("ASI"); the Subsidiaries of ASI
listed on the signature pages hereto (the "ASI
Subsidiaries" and, together with Holding and ASI, the "ASI
Parties"); the financial institutions listed in Schedule I
hereto, in their respective capacities as parties to the
Original Credit Documents referred to below (the "Original
Lenders"); and the financial institutions listed in
Schedule II hereto (the "Continuing Lenders"); including
CHEMICAL BANK, as Administrative Agent for the Original
Lenders and Continuing Lenders (in such capacity, the
"Agent") and as Collateral Agent for the Original Lenders
and the Continuing Lenders (in such capacity, the
"Collateral Agent").
Preliminary Statement
A. Holding, ASI and the ASI Subsidiaries are parties to a
Credit Agreement dated as of June 1, 1993 (as amended and in effect immediately
prior to the effectiveness of the transactions contemplated by this Agreement,
the "1993 ASI Credit Agreement"), with the Original Lenders. The ASI Parties
desire to amend and restate the 1993 ASI Credit Agreement and to restructure all
outstanding loans and commitments thereunder (including by providing for the
repayment of certain of such loans) and have requested that the Original Lenders
and the Continuing Lenders enter into this Agreement for that purpose.
B. The Continuing Lenders are willing to amend and restate the
1993 ASI Credit Agreement in the form of the Amended and Restated Credit
Agreement executed and delivered herewith (the "Amended and Restated Credit
Agreement"), among the ASI Parties and the Continuing Lenders, and to
restructure the outstanding loans and commitments under the 1993 ASI Credit
Agreement on the terms and conditions set forth herein and in the Amended and
Restated Credit Agreement.
C. ASI has notified all the Original Lenders and the
Continuing Lenders of the scheduled date for the effectiveness of the
assignments and amendments contemplated hereby (which shall be the Effective
Date referred to in Section III).
D. Each of ASI and the ASI Subsidiaries that are to borrow on
the Effective Date under the Amended and Restated Credit Agreement has delivered
to the Agent, in accordance with the Amended and Restated Credit Agreement, a
Borrowing Request (as defined therein), which specifies (i) the amounts and
currencies of loans that it desires to be advanced to it on the Effective Date
that are not already outstanding under the 1993 ASI Credit Agreement, and (ii)
the amounts and currencies of loans made to it that are outstanding under the
1993 ASI Credit Agreement and that are to remain outstanding thereunder on the
Effective Date (the loans described in this clause (ii) being collectively
called the "Continuing Loans"). The foregoing Borrowing Requests are referred to
herein collectively as the "Effective Date Loan Notices".
E. The parties (other than the Withdrawing Lenders, as defined
below) desire that the Continuing Loans remain outstanding as indebtedness under
the Amended and Restated Credit Agreement, that letters of credit issued and
outstanding under the 1993 ASI Credit Agreement remain outstanding under the
Amended and Restated Credit Agreement and that the guarantees of, and security
interests securing, obligations under the 1993 ASI Credit Agreement and the
other "Credit Documents" as defined therein (collectively, the "Credit
Documents") be amended to the extent provided herein and, in such original or
amended form (as applicable), continue to guarantee and to secure obligations
under the Amended and Restated Credit Agreement and the Credit Documents.
F. The Original Lenders that will not be Continuing Lenders
(the "Withdrawing Lenders") desire to be released from their obligations under,
and all the Original Lenders desire to assign and transfer to the Continuing
Lenders (to the extent not retained by them as Continuing Lenders) their
interests and rights under, the 1993 ASI Credit Agreement.
Accordingly, the parties hereto hereby agree as follows:
I. ASSIGNMENT AND AMENDMENT
SECTION 1.01. Funding Memorandum. On or prior to the Effective
Date, the Agent and ASI shall prepare a funding memorandum (the "Funding
Memorandum") setting forth (i) with respect to each borrower under the 1993 ASI
Credit Agreement, the amounts and currencies of its outstanding loans thereunder
<PAGE>
as of the Effective Date and any differences between such amounts and currencies
compared to the amounts and currencies of the loans that will continue to be
outstanding under, or be made under, the Amended and Restated Credit Agreement
on the Effective Date based on the Effective Date Loan Notices, (ii) the
respective amounts and currencies of the Continuing Loans that will continue to
be held on the Effective Date by Original Lenders currently holding such
Continuing Loans as a result of such Original Lenders also being Continuing
Lenders (such Continuing Loans being the "Retained Continuing Loans"), (iii) the
respective amounts and currencies of the Continuing Loans that will be assigned
on the Effective Date pursuant to Section 1.02 by Original Lenders currently
holding such Continuing Loans (the "Assigning Lenders") as a result of such
Original Lenders being Withdrawing Lenders or having commitments under the
Amended and Restated Credit Agreement that are inconsistent with the retention
of all the Continuing Loans currently held by them (such Continuing Loans being
the "Assigned Continuing Loans") and, as to each category of Assigned Continuing
Loans, the amount of such Loans, if any, to be purchased by each Continuing
Lender (the Continuing Lenders purchasing Assigned Continuing Loans of any
category being called the "Applicable Continuing Lenders" in respect thereof),
(iv) the letters of credit to be outstanding under the 1993 ASI Credit Agreement
as of the Effective Date, and (v) the respective amounts to be paid and received
by the parties hereto on the Effective Date pursuant to Section 1.06.
SECTION 1.02. Assignments. Subject to the conditions set forth
in Article III, effective on the Effective Date, (a) each Assigning Lender
hereby assigns and transfers to the Applicable Continuing Lenders, without
recourse, representation or warranty (other than as expressly set forth in
Article II), all its Assigned Continuing Loans of each category and all its
related rights and interests under the Credit Documents, and (b) the Applicable
Continuing Lenders hereby purchase and accept all such Assigned Continuing
Loans, rights and interests. Notwithstanding the foregoing, (i) the Assigning
Lenders shall retain the exclusive right under the Credit Documents to receive
and retain the payments referred to in clauses (a) and (c) of Section 1.06, and
(ii) the Assigning Lenders shall retain all their rights under the Credit
Documents in respect of indemnification and expense reimbursement obligations,
including under Sections 2.12, 2.14, 2.18 and 10.01 of the 1993 ASI Credit
Agreement, which shall survive the amendment and restatement of the 1993 ASI
Credit Agreement without prejudice to the rights of the Continuing Lenders under
the Amended and Restated Credit Agreement (and for purposes of such Section
2.14, the assignments of the Assigned Continuing Loans on the Effective Date
shall be treated as prepayments of such Loans, as provided in Section
1.06(a)(iii)). In implementation of the foregoing, the Original Lenders agree to
use their best efforts to deliver to the Agent, on or prior to the Effective
Date (or as promptly as possible thereafter), all promissory notes issued under
the 1993 ASI Credit Agreement (the "Original Notes"), or written certification
that such Original Notes are lost or cannot be located; provided that (A)
failure to deliver the Original Notes shall not affect the validity of the
assignments provided for herein and (B) each Original Lender that fails so to
deliver its Original Notes hereby agrees to indemnify the ASI Parties against
any loss, cost or expense resulting from such failure. The Agent shall surrender
to ASI on the Effective Date, for cancellation, all Original Notes received by
the Agent, it being understood that loans outstanding under the Amended and
Restated Credit Agreement are to be evidenced as provided therein.
SECTION 1.03. Amendment and Restatement. Subject to the
conditions set forth in Article III, on the Effective Date, upon the
consummation of the assignments referred to in Section 1.02, (a) the 1993 ASI
Credit Agreement shall be amended and restated in the form of the Amended and
Restated Credit Agreement, (b) the Continuing Loans shall constitute Loans
outstanding under, and as defined in, the Amended and Restated Credit Agreement
in accordance with the Effective Date Loan Notices (and, for purposes of the
Amended and Restated Credit Agreement, the Continuing Lenders shall be deemed to
have advanced their respective Continuing Loans under the Amended and Restated
Credit Agreement on the Effective Date as though made pursuant to Borrowing
Requests delivered thereunder), (c) the interests, rights and obligations of
each Continuing Lender shall be limited to those set forth in the Amended and
Restated Credit Agreement and the Credit Documents as amended (if applicable)
pursuant to the Credit Documents Amendment Agreement dated as of the date hereof
among Holding, ASI, the ASI Subsidiaries and the Collateral Agent (the "Credit
Documents Amendment") and (d) certain of the Credit Documents (and all interests
of any party thereunder, including all security interests whatsoever) shall be
amended pursuant to the Credit Documents Amendment as described in Schedule 1.03
and shall continue in full force and effect for the benefit of the Continuing
Lenders, and all references in any thereof to the 1993 ASI Credit Agreement or
to any such other Credit Documents shall be deemed references to the Amended and
Restated Credit Agreement or to such Credit Documents as amended thereby (if
applicable), as the Amended and Restated Credit Agreement or such Credit
Documents may hereafter be amended, supplemented or otherwise modified from time
to time.
<PAGE>
SECTION 1.04 Consents and Releases. The ASI Parties hereby
consent and agree to the transactions to be effected by Sections 1.02 and 1.03
and hereby release, effective on the Effective Date, the Withdrawing Lenders
from all their obligations under the Credit Documents other than any obligations
they may have under Section 2.18(g) of the 1993 ASI Credit Agreement. The
Continuing Lenders and the ASI Parties acknowledge that certain of the Credit
Documents are being amended and restated, as provided in Section 1.03, forthwith
upon consummation of the assignments referred to in Section 1.02 and,
accordingly, the Continuing Lenders and the ASI Parties agree that, upon the
effectiveness of the amendment and restatement provided for in Section 1.03, the
obligations of the ASI Parties (other than as set forth herein) and the
Continuing Lenders shall be limited to those set forth in the Amended and
Restated Credit Agreement and the Credit Documents as amended (if applicable).
SECTION 1.05. Letters of Credit. On the Effective Date, each
letter of credit issued and outstanding under the 1993 ASI Credit Agreement (a
"Continuing Letter of Credit") shall continue to constitute a Letter of Credit
issued under, and as defined in, the Amended and Restated Credit Agreement, with
the same effect as though issued thereunder on the Effective Date. Each
Continuing Lender that shall have issued a Continuing Letter of Credit (a
"Continuing Issuing Bank") shall be deemed to be an "Issuing Bank", as defined
in the Amended and Restated Credit Agreement, in respect of such Continuing
Letter of Credit for all purposes of the Credit Documents, entitled to the
benefits thereof; and each Issuing Bank Agreement (as defined in the 1993 ASI
Credit Agreement) in effect on the Effective Date shall continue to constitute
an Issuing Bank Agreement under the Amended and Restated Credit Agreement. The
ASI Parties and the Continuing Lenders consent to the foregoing and each
Continuing Issuing Bank agrees that, on and after the Effective Date, the
Original Lenders shall be released from their participations acquired under the
1993 ASI Credit Agreement in such Continuing Letters of Credit issued by it,
without prejudice to the rights of such Continuing Issuing Bank in respect of
the participations acquired by Continuing Lenders under the Amended and Restated
Credit Agreement in respect of such Continuing Letters of Credit. Each
Continuing Issuing Bank and the ASI Parties also hereby acknowledge and agree
that, on and after the Effective Date, the compensation payable by the ASI
Parties to such Continuing Issuing Bank with respect to its Continuing Letters
of Credit shall be as set forth in the Issuing Bank Agreement executed and
delivered by ASI and such Continuing Issuing Bank, as contemplated by the
Amended and Restated Credit Agreement.
SECTION 1.06. Payments. Subject to the conditions set forth in Article III
hereof, on the Effective Date:
(a) each ASI Party that is a borrower under the 1993 ASI Credit
Agreement shall pay, and ASI shall cause each such borrower to pay, to the
Agent, in the manner and currencies required under the 1993 ASI Credit
Agreement for distribution to the Original Lenders in accordance with the
1993 ASI Credit Agreement, an amount equal to the sum of (i) all accrued
and unpaid interest on all the loans of such ASI Party outstanding under
the 1993 ASI Credit Agreement, regardless of whether such loans are being
prepaid on such date, (ii) the aggregate principal amount of all the loans
(excluding only Continuing Loans) of such ASI Party outstanding under the
1993 ASI Credit Agreement (and the amounts referred to in this clause (ii)
shall be applied to prepay such loans on the Effective Date), and (iii)
without limiting clause (b)(ii) of Section 1.02, all fees and other
amounts, including without limitation any break funding costs arising as a
result of the payments provided for herein (to the extent ASI has received
prior notice thereof), accrued and unpaid (whether or not then due) by such
ASI Party under the 1993 ASI Credit Agreement or any Credit Document (and
for purposes of this clause (iii), each assignment of an Assigned
Continuing Loan shall be treated as a prepayment thereof on the Effective
Date in determining break funding costs due under the 1993 ASI Credit
Agreement);
(b) each Continuing Lender shall pay to the Agent, in accordance with
Section 2.02(c) of the Amended and Restated Credit Agreement, (i) the
amounts of the loans (other than Continuing Loans) to be made by such
Continuing Lender under the Amended and Restated Credit Agreement on the
Effective Date based upon the Effective Date Loan Notices and the Funding
Memorandum, and (ii) amounts equal to the principal amounts of the Assigned
Continuing Loans that will constitute outstanding loans of such Continuing
Lender under the Amended and Restated Credit Agreement based upon such
Effective Date Loan Notices and the Funding Memorandum;
(c) the Agent shall pay (i) to the Original Lenders from the funds
received by it pursuant to clause (a)(i) above, all accrued and unpaid
interest in respect of the Loans of such Lenders outstanding under the 1993
ASI Credit Agreement on the Effective Date; (ii) to the Original Lenders
from the funds received by it pursuant to clause (a)(ii) above, the
aggregate principal amounts of the respective loans (other than Continuing
Loans) of such Lenders outstanding under the 1993 ASI Credit Agreement on
the Effective Date; (iii) to the Assigning Lenders from the funds received
by it pursuant to clause (b)(ii) above, the aggregate principal amounts of
the respective Assigned Continuing Loans of such Lenders outstanding on the
Effective Date; and (iv) to the Original Lenders from the funds received by
it pursuant to clause (a)(iii) above, all fees and other amounts, including
break funding costs determined in accordance with the 1993 ASI Credit
Agreement and such clause (a)(iii), accrued and unpaid (whether or not than
due) to such Lenders by reason of the assignments and prepayments provided
for herein or otherwise under the 1993 ASI Credit Agreement (but only to
the extent that ASI has received prior notice thereof);
(d) the ASI Parties that are parties to the Amended and Restated Credit
Agreement shall pay to the Agent, in the manner and currencies required
under the Amended and Restated Credit Agreement for distribution to the
Continuing Lenders in accordance with the Amended and Restated Credit
Agreement, all fees and other amounts payable to the Continuing Lenders
pursuant to Section III(g) hereof on the Effective Date; and
<PAGE>
(e) the Agent shall pay to each ASI Party that is a borrower under the
Amended and Restated Credit Agreement, from the funds received by it
pursuant to clause (b)(i) above, the balance of such funds remaining for
the account of such ASI Party.
The obligations of the Continuing Lenders under clause (b)
above are several and not joint. The parties acknowledge that not all the break
funding costs under the 1993 ASI Credit Agreement have been notified to ASI, and
ASI shall pay such costs in accordance with the 1993 ASI Credit Agreement.
II. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS
SECTION 2.01. Representations and Warranties of Original
Lenders. (a) Each of the Assigning Lenders represents and warrants, as of the
Effective Date, to the Continuing Lenders that it is the beneficial and record
owner of the Assigned Continuing Loans to be assigned by it as contemplated by
Section 1.02; and that it has not sold, transferred or created any participating
interest in or lien upon such Assigned Continuing Loans (except participating
interests which will terminate upon the assignment provided for in Section
1.02).
(b) Each of the Original Lenders represents and warrants to
the Continuing Lenders that it has the power and authority to execute, deliver
and perform its obligations under this Agreement and that this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforceability of creditors' rights generally and by general
principles of equity.
SECTION 2.02. Representations and Warranties of Continuing
Lenders. Each Continuing Lender represents and warrants to the Original Lenders
that it has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and that this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforceability of creditors' rights generally and by general principles of
equity.
SECTION 2.03. Representations and Warranties of the ASI
Parties. Each of the ASI Parties represents and warrants to the Withdrawing
Lenders that it has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement and that this Agreement constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforceability of creditors' rights generally and by general
principles of equity or, in the case of the ASI Parties that are Foreign
Subsidiaries, applicable laws disclosed in legal opinions delivered pursuant to
the 1993 ASI Credit Agreement or the Amended and Restated Credit Agreement, as
applicable. Except for certain corporate reorganizations which have been
disclosed in writing to the Administrative Agent, each of the ASI Parties
represents and warrants (as to itself and its Subsidiaries and the shares of
capital stock, or parts, as applicable, pledged by it and them) to the
Continuing Lenders that, as of the date hereof, (a) as to the pledge of shares
of capital stock of any Domestic Subsidiary, such shares of capital stock
constitute 100% of the issued and outstanding capital stock of such Domestic
Subsidiary owned by ASI Parties and their Subsidiaries and required to be
pledged under the 1993 ASI Credit Agreement or the Amended and Restated Credit
Agreement, (b) as to the pledge of shares of capital stock or parts, as
applicable, of any Foreign Subsidiary pledged by ASI or any Subsidiary to secure
Domestic Obligations, such shares of capital stock or parts, as applicable,
constitute at least 65% in the aggregate of the issued and outstanding capital
stock of such Foreign Subsidiary owned by ASI, Holding and any Domestic
Subsidiary and required to be pledged under the 1993 ASI Credit Agreement or the
Amended and Restated Credit Agreement and (c) as to the pledge of shares of
capital stock or parts, as applicable, of any Foreign Subsidiary pledged by ASI
or any Subsidiary to secure Obligations other than Domestic Obligations, such
shares of capital stock or parts, as applicable, constitute 100% of the issued
and outstanding stock of such Foreign Subsidiary owned by ASI Parties and their
Subsidiaries and required to be pledged under the 1993 ASI Credit Agreement or
the Amended and Restated Credit Agreement.
SECTION 2.04. Certain Agreements Among ASI Parties and
Continuing Lenders. The ASI Parties that are parties to the Amended and Restated
Credit Agreement and the Continuing Lenders agree that, for all purposes of the
Credit Documents, the transactions contemplated hereby, including the payments
contemplated by Section 1.06 and the transactions contemplated by Sections 1.02,
1.03 and 1.04, shall be deemed to constitute part of the "Transactions" as
defined in the Amended and Restated Credit Agreement. In the event that the
Offering (as defined in the Amended and Restated Credit Agreement) shall occur
contemporaneously with the initial Borrowings under the Amended and Restated
Credit Agreement, it is understood and agreed that such Borrowings shall be
deemed to have occurred immediately prior to the Offering.
<PAGE>
III. CONDITIONS
The transactions contemplated by Sections 1.02, 1.03, 1.04 and
1.05 shall become effective only upon the satisfaction, on a single date (which
shall be the Effective Date) on or prior to March 31, 1995, of the following
conditions (capitalized terms used in this Section III and not otherwise defined
herein shall have the meanings assigned to them in the Amended and Restated
Credit Agreement):
(a) all the payments referred to in Section 1.06 shall have been made;
(b) each Continuing Lender shall have received a duly executed Note, if
requested by such Continuing Lender, in respect of each Credit Facility
under which it has a Commitment, complying with the provisions of Section
2.06 of the Amended and Restated Credit Agreement; provided that the
receipt of executed Swingline Notes by the Swingline Lender requesting
Swingline Notes shall not be a condition to the effectiveness of this
Agreement or to the obligation of any Continuing Lender to make Loans
(other than Swingline Loans to be evidenced thereby);
(c) the Agent shall have received, on behalf of the Lenders, legal
opinions from each of Debevoise & Plimpton, counsel to the Credit Parties,
Richard A. Kalaher, Esq., Acting General Counsel of ASI, and such foreign
counsel to ASI and the Subsidiary Borrowers and other counsel as shall have
been requested by the Agent, each such opinion to be dated the Effective
Date and addressed to the Issuing Banks, the Administrative Agent and the
Lenders, as to such matters as the Agent may reasonably request, and the
Borrowers hereby instruct each such counsel to deliver such opinions;
(d) the representations and warranties set forth in Article III of the
Amended and Restated Credit Agreement and in each Credit Document shall be
true and correct in all material respects on and as of such date with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date;
(e) all legal matters incidental to this Agreement, the Amended and
Restated Credit Agreement, the Borrowings thereunder, the Credit Documents
and the Transactions shall be satisfactory to the Lenders and to Cravath,
Swaine & Moore, counsel for the Agent;
(f) the Agent shall have received, on behalf of the Lenders, (i) in the
case of any Credit Party of which the certificate or articles of
incorporation (or other analogous document) has been changed since June 1,
1993, a copy of the certificate or articles of incorporation (or other
analogous document), including all amendments thereto, of such Credit
Party, certified (where reasonably available, in the case of any Credit
Party organized outside the United States) as of a recent date by the
Secretary of State (or other appropriate Governmental Authority) of the
state (or country) of its organization, or other evidence reasonably
satisfactory to the Agent as to the organization of such Credit Party; (ii)
a certificate as to the good standing or subsistence (or other analogous
certification), to the extent available, of each of the Credit Parties as
of a recent date, from the appropriate Secretary of State (or other
appropriate Governmental Authority) or other evidence reasonably
satisfactory to the Agent as to the good standing of such Credit Party;
(iii) a certificate of the Secretary or Assistant Secretary (or other
Responsible Officer, in the case of Credit Parties that do not have a
Secretary or an Assistant Secretary) of each Credit Party dated the
Effective Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws (or other analogous documents to the extent
available) of such Credit Party as in effect on the Effective Date and at
all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Credit Party
(and, if necessary, resolutions duly adopted by the shareholders or other
equity owners of such Credit Party) authorizing the execution, delivery and
performance of the Amended and Restated Credit Agreement and the Credit
Documents to which such Credit Party is or is to be a party and, in the
case of the Borrowers, the Borrowings, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation (or analogous documents)
of such Credit Party have not been amended since the date of the last
amendment thereto shown on the certificate (or other analogous
certification or such other evidence reasonably satisfactory to the Agent)
furnished pursuant to clause (i) above or, if no such certificate is
required to be furnished under (i) above, since June 1, 1993, and (D) as to
the incumbency and specimen signature of each officer executing the Amended
and Restated Credit Agreement, any Credit Document or any other document
delivered in connection herewith on behalf of such Credit Party; (iv) a
certificate of another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the certificate pursuant
to clause (iii) above; and (v) such other documents as the Lenders, the
Issuing Banks or Cravath, Swaine & Moore, counsel for the Agent, may
reasonably request;
(g) the Agent shall have received, on behalf of the Lenders, an
Officer's Certificate of ASI, dated the Effective Date, confirming
compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.01 of the Amended and Restated Credit Agreement insofar as
such conditions precedent relate to ASI and its Subsidiaries;
<PAGE>
(h) the Agent shall have received all Fees and other amounts due and
payable on or prior to the Effective Date, including reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by
any of the Borrowers hereunder or under any Credit Document (to the extent
invoices and statements therefor have been received);
(i) the Security Documents and the Guarantee Documents shall be in full
force and effect on the Effective Date. The Collateral Agent on behalf of
the holders of the Obligations shall have a security interest in the
Collateral of the type and priority described in each Security Document,
perfected to the extent contemplated by Section 3.09 of the Amended and
Restated Credit Agreement;
(j) the Agent shall have received, on behalf of the Lenders, a
satisfactory Perfection Certificate dated the Effective Date from ASI,
demonstrating the perfection, to the extent contemplated by Section 3.09 of
the Amended and Restated Credit Agreement, of the Liens granted under the
Security Documents;
(k) the Offering shall have occurred (or shall occur contemporaneously
with the initial Borrowings under the Amended and Restated Credit
Agreement) on the terms and conditions disclosed to the Lenders prior to
execution and delivery of this Agreement (or other terms and conditions
approved by the Lenders). The Agent shall have received, on behalf of the
Lenders, copies of all documentation executed and delivered in connection
with the Offering;
(l) the Lenders shall have received a satisfactory pro forma
consolidated balance sheet for ASI, reflecting the Transactions, and a
satisfactory statement of sources and uses of funds in connection with the
Transactions, in each case certified by a Financial Officer of ASI;
(m) after giving effect to all Borrowings made on the Effective Date,
the Total Revolving Credit Commitment will exceed the aggregate outstanding
principal amount of Revolving Credit Loans and Swingline Loans by an amount
that equals or exceeds $150,000,000 (adjusted as necessary to take account
of exchange rate fluctuations occurring after the delivery of the Funding
Memorandum);
(n) ASI shall have taken all actions, if any, necessary to designate
its liabilities in respect of the Obligations as senior indebtedness for
purposes of the subordination provisions of its subordinated indebtedness
(including, in the case of ASI, the Subordinated Securities), and the
Obligations shall constitute senior indebtedness for such purposes;
(o) the Agent shall have received, on behalf of the Lenders, a report
from ASI's independent insurance broker, together with any other evidence
reasonably requested by the Lenders, demonstrating that the insurance
described in Schedule 3.20 of the Amended and Restated Credit Agreement is
in effect;
(p) except as contemplated by the Transactions and as otherwise
disclosed to the Lenders prior to the execution and delivery of this
Agreement and the Amended and Restated Credit Agreement, there shall not
have occurred any Prepayment Event or any other material change in the
capitalization or corporate structure of Holding or the Borrowers since the
date of the most recent balance sheet referred to in Section 3.08 of the
Amended and Restated Credit Agreement;
(q) the Transactions, including the extensions of credit (and in
particular the incurrence of the Loans and the issuance of the Letters of
Credit) under the Amended and Restated Credit Agreement, the continuance of
the Liens created by the Security Documents and the consummation of the
Offering, shall have been approved or exempted by all requisite
Governmental Authorities, and all such approvals or exemptions, including
any conditions imposed thereby, shall be in form and substance acceptable
to the Lenders. No action shall have been taken by any Governmental
Authority which restrains or prevents or seeks to restrain or prevent, or
imposes or seeks to impose materially adverse conditions upon, any of the
Transactions;
(r) no action, suit, litigation or similar proceeding at law or in
equity or by or before any court or other Governmental Authority shall
exist or, in the case of litigation by a Governmental Authority, be
threatened, with respect to any of the Transactions which would in the
reasonable opinion of the Lenders be likely to result in a Materially
Adverse Effect;
(s) all aspects of the structure and documentation of the Transactions
and all corporate and other proceedings taken or to be taken in connection
therewith and all documents incidental thereto, in each case to the extent
not otherwise provided for herein, shall be reasonably satisfactory in form
and substance to the Agent and to Cravath, Swaine & Moore, counsel for the
Agent, and the Lenders shall have received copies of all such documents as
the Lenders may reasonably request; and
(t) the Agent shall have received, on behalf of the Lenders, the duly
executed Credit Documents Amendment Agreement referred to in Schedule 1.03
executed by each person which is a party to any Credit Document.
<PAGE>
Satisfaction of the foregoing conditions shall be conclusively evidenced by (i)
receipts executed and delivered by the Agent and ASI, in the case of the
condition set forth in clause (a) above and (ii) the making of the payments
described in Section 1.06 on the Effective Date, in the case of the conditions
set forth in clauses (b) through (t) above; provided that execution and delivery
of the receipts referred to in clause (i) above shall not affect the rights of
any party hereto to receive amounts due and payable to it and not actually
received by such party. Unless and until the transactions contemplated by
Sections 1.02, 1.03, 1.04 and 1.05 become effective as provided above, the
Credit Documents shall remain in full force and effect in accordance with their
respective terms and the rights and obligations of the parties thereto shall not
be affected hereby.
IV. MISCELLANEOUS
SECTION 4.01. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns (including, in the case of the Original
Lenders, all banks or other persons which shall become Lenders under and as
defined in the 1993 ASI Credit Agreement hereafter and prior to the Effective
Date and, in the case of the Continuing Lenders, all banks or other persons
which shall hereafter become Lenders under and as defined in the Amended and
Restated Credit Agreement).
SECTION 4.02. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 4.03. Amendment. This Agreement may be waived, modified or amended
only by a written agreement executed by each of the parties hereto.
SECTION 4.04. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same agreement. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 4.05. No Novation. Neither this Agreement nor the execution,
delivery or effectiveness of the Amended and Restated Credit Agreement shall
extinguish the obligations for the
<PAGE>
payment of money outstanding under the 1993 ASI Credit Agreement or discharge or
release the Lien or priority of any pledge agreement or any other security
therefor. Nothing herein contained shall be construed as a substitution or
novation of the obligations outstanding under the 1993 ASI Credit Agreement or
instruments securing the same, which shall remain in full force and effect,
except to any extent modified hereby or by instruments executed concurrently
herewith. Nothing implied in this Agreement, the Amended and Restated Credit
Agreement, or any other document contemplated hereby or thereby shall be
construed as a release or other discharge of any Borrower or any Guarantor or
any Pledgor under any Credit Document from any of its obligations and
liabilities as a "Borrower", "Guarantor" or "Pledgor" under the 1993 ASI Credit
Agreement or the Credit Documents. Each of the 1993 ASI Credit Agreement and the
Credit Documents shall remain in full force and effect, until (as applicable)
and except to any extent modified hereby or in connection herewith.
Notwithstanding any provision of this Agreement or the Amended and Restated
Credit Agreement, the provisions of Sections 8.05 and 10.01 of the 1993 ASI
Credit Agreement, including all defined terms used therein, will continue to be
effective as to all matters arising out of or in any way related to facts or
events existing or occurring prior to the Effective Date.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first above written.
AMERICAN STANDARD COMPANIES INC.,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
AMERICAN STANDARD INC.,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
AMERICAN STANDARD (UK) LIMITED,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
AMERICAN STANDARD CREDIT INC.,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President &
Treasurer
WABCO STANDARD TRANE INC.,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
WABCO STANDARD GMBH,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
WABCO STANDARD TRANE B.V.,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
STANDARD EUROPE, a European Economic Interest Grouping,
by /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
<PAGE>
CHEMICAL BANK, individually and as Administrative Agent
by /s/ Robert K. Gaynor
Name: Robert K. Gaynor
Title: Vice President
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
by /s/ Charles Dougherty
Name: Charles Dougherty
Title: Vice President
by /s/ Sarah Kim
Name: Sarah Kim
Title: Assistant Vice President
BANK OF AMERICA ILLINOIS,
by /s/ Phillip F. Van Winkle
Name: Phillip F. Van Winkle
Title: Vice President
BANK OF SCOTLAND,
by /s/ Catherine M. Oniffrey
Name: Catherine M. Oniffrey
Title: Vice President
BANKERS TRUST COMPANY,
by /s/ Mary Kay Coyle
Name: Mary Kay Coyle
Title: Vice President
BANQUE INDOSUEZ,
by /s/ John L. Sabre
Name: John L. Sabre
Title: First Vice President
by /s/ John G. Popp
Name: John G. Popp
Title: First Vice President
BANQUE PARIBAS,
by /s/ David C. Buseck
Name: David C. Buseck
Title: Vice President
by /s/ Jeffrey J. Youle
Name: Jeffrey J. Youle
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
by /s/ E. Lindsay Gordon
Name: E. Lindsay Gordon
Title: Authorized Signatory
CERES FINANCE, LTD.
by
/s/ Darren P. Riley
Name: Darren P. Riley
Title: Director
CITIBANK, N.A.,
by
/s/ Judith C. Fishlow
Name: Judith C. Fishlow
Title: Vice President
<PAGE>
COMPAGNIE FINANCIERE de CIC et de l'UNION
EUROPEENNE,
by
/s/ Sean Mounier
Name: Sean Mounier
Title: First Vice President
by
/s/ Brian O'Leary
Name: Brian O'Leary
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by
/s/ Frederick Haddad
Name: Frederick Haddad
Title: Senior Vice President
CREDIT SUISSE,
by
/s/ Andrea Shkane
Name: Andrea Shkane
Title: Associate
by
/s/ Christopher J. Elder
Name: Christopher Elder
Title: Member of Senior Management
CREDITO ITALIANO SpA,
by
/s/ Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President
by
/s/ Saiyed A. Abbas
Name: Saiyed A. Abbas
Title: Assistant Vice President
CRESCENT CAPITAL CORP., as Portfolio Manager and
Attorney-in-Fact for CRESCENT/MACH I, L.P.,
by
/s/ Jason L. Driscoll
Name: Jason L. Driscoll
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH and/or CAYMAN
ISLANDS BRANCH,
by
/s/ Christopher S. Hall
Name: Christopher S. Hall
Title: Vice President
by
/s/ Daphne K. Lee
Name: Daphne K. Lee
Title: Asst. Vice President
DRESDNER BANK AG, NEW YORK and GRAND CAYMAN
BRANCHES,
by
/s/ Richard W. Conroy
Name: Richard W. Conroy
Title: Vice President
by
/s/ Andrew M. Miltag
Name: Andrew M. Miltag
Title: Vice President
<PAGE>
EATON VANCE PRIME RATE RESERVES,
by
/s/ Jeffrey S. Garner
Name: Jeffrey S. Garner
Title: Vice President
FALCON 94, LIMITED,
by
/s/ John A. Ellison
Name: John A. Ellison
Title: Vice President
FIRST NATIONAL BANK OF BOSTON,
by
/s/ Peter K. Merrill
Name: Peter K. Merrill
Title: Director
FLEET BANK OF MASSACHUSETTS, N.A.,
by
/s/ Kimberly S. Kersten
Name: Kimberly S. Kersten
Title: Assistant Vice President
HELLER FINANCIAL, INC.,
by
/s/ James Young
Name: James Young
Title: Vice President
KEYPORT LIFE INSURANCE COMPANY,
by CHANCELLOR SENIOR SECURED MANAGEMENT, as
Portfolio Advisor
by
/s/ Stewart R. Morrison
Name: Stewart R. Morrison
Title: V.P. & Chief Investment Officer
LEHMAN COMMERCIAL PAPER, INC.,
by
/s/ Christopher Ryan
Name: Christopher Ryan
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO,
by MERRILL LYNCH ASSET MANAGEMENT, L.P., as
Investment Advisor,
by
/s/ John R. Lennon
Name: John R. Lennon
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.,
by
/s/ John R. Lennon
Name: John R. Lennon
Title: Authorized Signatory
<PAGE>
NATIONAL CITY BANK,
by
/s/ Jeffrey L. Tengel
Name: Jeffrey L. Tengel
Title: Vice President
Notwithstanding the foregoing, Prospect Street
Senior Portfolio, L.P. has created a lien upon
and security interest in the assigned Continuing
Loans assigned by it as contemplated by
Section 1.02 in favor of Citibank, N.A., which
lien and security interest shall be released
upon the sale and assignment hereunder and
receipt by it of payment in respect thereof.
Name: Dana E. Erikson
Title:
Vice President
PROSPECT STREET SENIOR PORTFOLIO, L.P.,
by PROSPECT STREET
SENIOR LOAN CORP., Managing General Partner,
by
/s/ Dana E. Erikson
--------------------
Name: Dana E. Erikson
Title: Vice President
**Subject to the representation that anything to
the contrary in Section 2.01(a) notwithstanding,
Restructured Obligations Backed By Senior Assets
B.V. has created a lien and security interest in
the Assigned Continuing Loans to be assigned by
it as contemplated by Section 1.02 in favor of
State Street Bank and Trust Company, which lien
and security interest shall be released upon the
effectiveness of this agreement.
**RESTRUCTURED OBLIGATIONS BACKED BY SENIOR ASSETS,
, B.V.,
by ABN TRUST COMPANY
(NEDERLAND) BV, its Managing Director,
by
/s/ J. J. Keijsper
-------------------
Name: J.J. Keijsper
Title:Proxy Holder
by
/s/ Th. Spijkerman
Name: Th.Spijkerman
Title:Proxy Holder
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/s/ John R. Lennon
Name: John R. Lennon
Title: Authorized Signatory
<PAGE>
SOCIETE GENERALE,
by
/s/ Salvatore Galatisto
Name: Salvatore Galatisto
Title: Vice President
**Subject to the representation that anything to **STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR the contrary in Section 2.01(a) notwithstanding,
ASSETS 2 (ROSA 2), Stichting Restructured Obligations Backed By Senior Assets 2
(ROSA 2) has created a lien and by ABN TRUST COMPANY security interest in the
Assigned Continuing (NEDERLAND) B.V., its Managing Director, Loans to be
assigned by it as contemplated by Section 1.02 in favor of State Street Bank and
by Trust Company, which lien and security interest /s/ J. J. Keijsper shall be
released upon the effectiveness of this Name: J. agreement. J. Keijsper Title:
Proxy Holder
by
/s/ Th. Spijkerman
Name: Th.
Spijkerman
Title:
Proxy Holder
STRATA FUNDING LTD.,
by
/s/ Darren P. Riley
Name: Darren P. Riley
Title: Assistant Vice President
THE BANK OF NEW YORK,
by
/s/ Peter H. Abdill
Name: Peter H. Abdill
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ J. W. Campbell
Name: J. W. Campbell
Title: V.P./Agent
THE CHASE MANHATTAN BANK, N.A.,
by
/s/ Carol A. Ulmer
Name: Carol A. Ulmer
Title: Vice President
THE FUJI BANK, LIMITED,
by
/s/ Katsunori Nozawa
Name: Katsunori Nozawa
Title: Vice President and Manager
THE HOKKAIDO TAKUSHOKU BANK LTD.,
by
/s/ Hiromoto Ishizuka
Name: Hiromoto Ishizuka
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, TRUST COMPANY,
by
/s/ Junri Oda
Name: Junri Oda
Title: Senior Vice President and Senior
Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
by
/s/ Rene O. LeBlanc
Name: Rene O. LeBlanc
Title: Deputy General Manager
THE LONG-TERM CREDIT BANK OF JAPAN (DEUTSCHLAND) AG,
by
/s/ Dieter Schroeter
Name: Dieter Schroeter
Title: Member of the Board of Managing
Directors
by
/s/ Norifumi Takada
Name: Norifumi Takada
Title: Advisor to Management
THE MITSUBISHI BANK, LTD.,
by
/s/ Paula Mueller
Name: Paula Mueller
Title: Vice President
<PAGE>
THE MITSUBISHI TRUST AND BANKING CORPORATION,
by
/s/ Patricia Loret de Mola
Name: Patricia Loret de Mola
Title: Senior Vice President
THE SAKURA BANK, LTD.,
by
/s/ Masahiro Nakajo
Name: Masahiro Nakajo
Title: Senior Vice President and Manager
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
by
/s/ Paul Judicke
Name: Paul Judicke
Title: Assistant Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
by
/s/ Yoshinori Kawamura
Name: Yoshinori Kawamura
Title: Joint General Manager
THE SUMITOMO TRUST AND BANKING CO., LTD., NEW YORK
BRANCH,
by
/s/ Suraj P. Bhatia
Name: Suraj P. Bhatia
Title: Senior Vice President Manager,
Corporate Finance II Dept
THE TORONTO-DOMINION BANK,
by
/s/ Kimberly Burleson
Name: Kimberly Burleson
Title: MGR, CR ADMW
THE TRAVELERS INSURANCE COMPANY,
by
/s/ Allen R. Cantrell
Name: Allen R. Cantrell
Title: Investment Officer
UNION BANK OF FINLAND, LTD.,
by
/s/ Pentti Mansukoski/Eric I Mann
Name: Pentti Mansukoski/Eric I. Mann
Title: Senior Vice President/Vice
President
UNITED STATES NATIONAL BANK OF OREGON,
by
/s/ Chris J. Karlin
Name: Chris J. Karlin
Title: Vice President
VAN KAMPEN MERRITT PRIME RATE INCOME TRUST,
by
/s/ Jeffrey W. Maillet
Name: Jeffrey W. Maillet
Title: Vice Pres. and Portfolio Mgr.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
by
/s/ Phillip F. Van Winkle
Name: Phillip F. Van Winkle
Title: Vice President
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 9, 1995
among
AMERICAN STANDARD COMPANIES INC.,
AMERICAN STANDARD INC.,
CERTAIN SUBSIDIARIES OF AMERICAN STANDARD INC.,
THE LENDERS, SENIOR MANAGING AGENTS,
MANAGING AGENTS AND CO-AGENTS
NAMED HEREIN,
and
CHEMICAL BANK
as Administrative Agent
1
TABLE OF CONTENTS
Article Section Page
I. DEFINITIONS
1.01 Defined Terms..................................................... 1
1.02 Terms Generally................................................... 37
II. THE CREDITS
2.01 Commitments....................................................... 37
2.02 Loans............................................................. 38
2.03 Borrowing Procedure............................................... 40
2.04 Interest Rate Elections; Conversion and Continuation of Loans..... 42
2.05 Fees.............................................................. 43
2.06 Notes; Repayment of Loans......................................... 46
2.07 Interest on Loans................................................. 47
2.08 Default Interest.................................................. 47
2.09 Alternate Rate of Interest........................................ 47
2.10 Termination and Reduction of Commitments.......................... 48
2.11 Prepayment........................................................ 49
2.12 Reserve Requirements; Change in Circumstances..................... 51
2.13 Change in Legality................................................ 53
2.14 Indemnity......................................................... 54
2.15 Pro Rata Treatment................................................ 54
2.16 Sharing of Setoffs................................................ 55
2.17 Payments.......................................................... 55
2.18 Taxes............................................................. 56
2.19 Letters of Credit................................................. 59
2.20 Swingline Loans................................................... 63
2.21 Borrower Assignment of Term Loans................................ 65
2.22 Certain Lender Obligations....................................... 65
III. REPRESENTATIONS AND WARRANTIES
3.01 Corporate Status.................................................. 66
3.02 Corporate Power and Authority .................................... 67
3.03 No Violation...................................................... 67
3.04 Use of Proceeds; Margin Regulations 67
3.05 Approvals 68
3.06 Investment Company Act, etc. 68
3.07 True and Complete Disclosure 68
3.08 Financial Condition; Financial Statements; Projections 68
3.09 Security Interests................................................ 70
3.10 Tax Returns and Payments.......................................... 71
3.11 Compliance with ERISA ............................................ 71
1
<PAGE>
3.12 Title to Properties; Liens 72
3.13 Patents, Trademarks, etc. ........................................ 72
3.14 Environmental Matters ............................................ 72
3.15 Litigation; Adverse Facts ........................................ 73
3.16 Compliance with Laws and Charter Documents 73
3.17 Absence of Default................................................ 74
3.18 Labor Matters..................................................... 74
3.19 Benefit Plans..................................................... 74
3.20 Insurance......................................................... 74
IV. CONDITIONS
4.01 All Events........................................................ 75
4.02 Effectiveness..................................................... 75
V. AFFIRMATIVE COVENANTS
5.01 Financial Statements and Other Reports ........................... 76
5.02 Books, Records and Inspections.................................... 80
5.03 Maintenance of Property; Insurance; Good Repair .................. 80
5.04 Payment of Taxes and Claims ...................................... 80
5.05 Consolidated Corporate Franchises................................. 80
5.06 Compliance with Statutes, etc. ................................... 81
5.07 ERISA ............................................................ 81
5.08 Performance of Obligations ....................................... 81
5.09 Waiver of Stay, Extension or Usury Laws .......................... 82
5.10 Security Interests ............................................... 82
5.11 After Acquired Real Properties ................................... 82
5.12 Future Guarantors ................................................ 83
5.13 Consents, Approvals, etc. ........................................ 84
5.14 German Real Estate................................................ 84
VI. NEGATIVE COVENANTS
6.01 End of Fiscal Year ............................................... 85
6.02 Consolidation, Merger or Sale or Purchase of Assets. 85
6.03 Liens ............................................................ 87
6.04 Indebtedness...................................................... 89
6.05 Advances, Investments and Loans .................................. 91
6.06 Leases............................................................ 93
6.07 Prepayments of Indebtedness, etc...................................93
6.08 Dividends, etc. .................................................. 93
6.09 Transactions with Affiliates...................................... 94
6.10 Consolidated Total Debt to Consolidated EBITDA Ratio ............. 95
6.11 Interest Coverage Ratio........................................... 95
6.12 ERISA ............................................................ 96
6.13 Sale Leasebacks .................................................. 97
6.14 Issuance and Sale of Stock ....................................... 97
6.15 Limitation on Restrictions on Subsidiary Dividends
and Other Distributions, etc. .................................... 97
2
<PAGE>
6.16 No Further Negative Pledges ...................................... 98
6.17 Restrictions Relating to ASI-BV Intercompany Note ................ 98
6.18 Changes in Business or Assets .................................... 98
VII. EVENTS OF DEFAULT
7.01 Payments ......................................................... 99
7.02 Representations, etc. ............................................ 99
7.03 Covenants ........................................................ 99
7.04 Default Under Other Agreements ................................... 99
7.05 Bankruptcy, etc. ................................................. 100
7.06 ERISA ............................................................ 100
7.07 Security Documents ............................................... 101
7.08 Guarantees ....................................................... 102
7.09 Judgments ........................................................ 102
7.10 Change in Control ................................................ 102
VIII. THE ADMINISTRATIVE AGENT
8.01 Appointment ...................................................... 103
8.02 Delegation of Duties ............................................. 104
8.03 Powers; General Immunity ......................................... 104
8.04 Non-Reliance on Administrative Agent and Other Lenders ........... 106
8.05 Indemnification .................................................. 106
8.06 Resignation by the Administrative Agent .......................... 107
8.07 Security Documents, etc. ......................................... 107
8.08 Determinations Pursuant to Security Documents .................... 108
IX. COLLECTION ALLOCATION MECHANISM
9.01 Implementation of CAM. ........................................... 108
9.02 Letters of Credit ................................................ 109
X. MISCELLANEOUS
10.01 Payment of Expenses, etc. ........................................ 110
10.02 Right of Setoff .................................................. 111
10.03 Notices .......................................................... 111
10.04 Benefit of Agreement ............................................. 112
10.05 No Waiver; Remedies Cumulative ................................... 115
10.06 Calculations; Computations ....................................... 115
10.07 Governing Law; Submission to Jurisdiction; Venue.................. 116
10.08 Counterparts ..................................................... 116
10.09 Headings Descriptive; Entire Agreement 117
10.10 Waivers; Amendment .............................................. 117
10.11 Survival ......................................................... 119
3
<PAGE>
10.12 Severability...................................................... 119
10.13 Independence of Covenants ........................................ 119
10.14 Judgment Currency ................................................ 119
10.15 Confidentiality .................................................. 120
10.16 Negotiation in the Event of Certain Tax Law Changes .............. 121
10.17 Waiver of Jury Trial 121
10.18 Miscellaneous..................................................... 121
Exhibit A Form of Borrowing Request
Exhibit B-1 Form of Term Note
Exhibit B-2 Form of U.S. $ Periodic Access Note
Exhibit B-3 Form of U.S. $Revolving Credit Note
Exhibit B-4 Form of Multi-Currency Revolving Credit Note
Exhibit B-5 Form of Swingline Note
Exhibit C Administrative Questionnaire
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Issuing Bank Agreement
Exhibit F Form of Mortgage
Exhibit G Form of Perfection Certificate
Exhibit H Form of Section 2.18(e)(ii) Certificate
Exhibit I-1 Form of Supplemental Guarantee
Exhibit I-2 Form of Foreign Supplemental Guarantee
(The following schedules are not included in this filing.)
Schedule I Subsidiary Borrowers
Schedule II Lenders and Commitments
Schedule III Subsidiary Guarantors
Schedule IV Scheduled Letters of Credit
Schedule 3.01 Subsidiaries
Schedule 3.05 Consents and Approvals
Schedule 3.08(b) ContingentObligations
Schedule 3.08(d) Indebtedness
Schedule 3.09(a) Conditions to Perfection
Schedule 3.09(b) Agreements of Equity Holders
Schedule 3.12(a) Liens
Schedule 3.12(b) Real Properties
Schedule 3.13 Intellectual Property Consents
Schedule 3.14(b) Environmental Obligations
Schedule 3.15 Litigation; Proceedings
Schedule 3.17 Defaults
Schedule 3.19 Pension Plans
Schedule 3.20 InsurancePrograms
Schedule 6.02 Permitted Consolidations, Mergers or Sales or Purchases
of Assets
Schedule 6.04 Certain Existing Indebtedness
Schedule 6.05 Investments
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 9, 1995, among
AMERICAN STANDARD COMPANIES INC. (formerly called ASI HOLDING CORPORATION), a
Delaware corporation ("Holding"); AMERICAN STANDARD INC., a Delaware corporation
("ASI"); the Subsidiaries of ASI listed in Schedule I hereto (the "Subsidiary
Borrowers" and, together with ASI, the "Borrowers"); the financial institutions
listed in Schedule II hereto (the "Lenders"); CHEMICAL BANK, a New York banking
corporation, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"); CITIBANK, N.A. and NATIONSBANK, N.A. (CAROLINAS), as
Senior Managing Agents (the "Senior Managing Agents"); BANK OF AMERICA ILLINOIS,
THE BANK OF NOVA SCOTIA, BANKERS TRUST COMPANY, THE CHASE MANHATTAN BANK, N.A.,
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, CREDIT SUISSE, DEUTSCHE
BANK AG, THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY, THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED and THE SUMITOMO BANK, LTD., as Managing Agents (the "Managing
Agents"); and THE BANK OF NEW YORK, CANADIAN IMPERIAL BANK OF COMMERCE, THE FUJI
BANK, LIMITED and THE SANWA BANK LIMITED, as Co-Agents (the "Co-Agents" and,
together with the Senior Managing Agents, the Managing Agents and the
Administrative Agent, the "Agents").
The parties hereto are willing to enter into this Agreement on the terms
and subject to the conditions herein set forth. Accordingly, Holding, the
Borrowers, the Lenders, the Administrative Agent, the Senior Managing Agents,
the Managing Agents and the Co-Agents agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"ABS" shall mean Chemical Bank Agent Bank Services.
"Account Party" shall have the meaning specified in Section 2.19(b).
"Acquisition" shall have the meaning specified in Section 6.05(m).
"Adjusted LIBO Rate" shall mean, with respect to any LIBOR Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary
to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in effect for
such Interest Period and (b) Statutory Reserves.
<PAGE>
"Administrative Agent" shall have the meaning specified in the heading of
this Agreement.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit C hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"After Acquired Property" shall have the meaning specified in Section 5.11.
"Agent and Administrative Fees" shall have the meaning specified in Section
2.05(d).
"Agents" shall have the meaning specified in the heading of this Agreement.
"Aggregate L/C Exposure" shall mean the sum of the Aggregate U.S. $ L/C
Exposure and the Aggregate Multi-Currency L/C Exposure. "Aggregate
Multi-Currency L/C Exposure" shall mean the aggregate amount of the Lenders'
Multi-Currency L/C Exposures. "Aggregate Multi-Currency Revolving Credit
Exposure" shall mean the aggregate amount of the Lenders' Multi-Currency
Revolving Credit Exposures. "Aggregate Periodic Access Loan Exposure" shall mean
the aggregate amount of the Lenders' Periodic Access Loan Exposures. "Aggregate
Revolving Credit Exposure" shall mean the aggregate amount of the Lenders'
Revolving Credit Exposures. "Aggregate U.S. $ L/C Exposure" shall mean the
aggregate amount of the Lenders' U.S. $ L/C Exposures. "Aggregate U.S. $
Revolving Credit Exposure" shall mean the aggregate amount of the Lenders' U.S.
$ Revolving Credit Exposures. "Alternate Base Rate" shall mean, for any day, a
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as effective. "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from the New York City negotiable
certificate of deposit dealers of recognized national standing selected by it.
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business
<PAGE>
Day, the average of the quotations for the day of such transactions received by
the Administrative Agent from three Federal funds brokers of recognized national
standing selected by it. If for any reason the Administrative Agent shall have
determined that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate or both for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall beAgent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clauses (b) or (c) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Alternative Currency" shall mean (a) Canadian Dollars, Deutsche Marks,
French Francs, Italian Lire and Sterling and (b) any other freely available
currency which is freely transferable and freely convertible into Dollars and in
which dealings in deposits are carried on in the London interbank market, which
shall be requested by a Borrower in respect of an Alternative Currency Borrowing
and approved by each Lender making an Alternative Currency Loan comprising a
part of such Borrowing.
"Alternative Currency Borrowing" shall mean a Borrowing comprised of
Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, with respect to an amount of
Dollars on any date in relation to any specified Alternative Currency, the
amount of such specified Alternative Currency that may be purchased with such
amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date. The term "Alternative Currency Equivalent" may be preceded by a reference
to an Alternative Currency (e.g., "DM Alternative Currency Equivalent"), in
which case the Alternative Currency so referenced shall be the "specified"
Alternative Currency.
"Alternative Currency Loan" shall mean any Loan denominated in an
Alternative Currency.
"Amended and Restated Stockholders Agreement" shall mean the Amended and
Restated Stockholders Agreement of American Standard Companies Inc. dated as of
December 2, 1994, as such Amended and Restated Stockholders Agreement may from
time to time be amended, supplemented or modified.
"Applicable Margin" shall mean (a) with respect to each Term Borrowing (or
Loan) that is a LIBOR Borrowing (or Loan), 1.50% per annum, (b) with respect to
each Term Borrowing (or Loan) that is an ABR Borrowing (or Loan) 0.50% per
annum, (c) with respect to each other LIBOR Borrowing (or Loan), 1.75% per
annum, and (d) with respect to each other ABR Borrowing (or Loan), 0.75% per
annum; provided that so long as no Event of Default shall have occurred and be
continuing, each such "Applicable Margin" shall be reduced, but in no event to
less than zero, by the amount set forth under the caption "Margin Reduction"
below opposite whichever of the financial ratio conditions for ASI and its
Consolidated Subsidiaries set forth under the caption "Financial Ratios" below
is satisfied and results in the greatest reduction (with satisfaction of such
financial ratio conditions being determined based on the balance sheets most
recently delivered to the Lenders pursuant to clause (a) or (b) of Section 5.01
and the related statements of income for the period of four consecutive fiscal
quarters ended as of the date of such balance sheets, after giving effect to any
pro forma adjustments thereto as provided below, and with each "Financial Ratio"
and any corresponding change in the Applicable Margin becoming effective on the
earlier of the date on which such financial statements are delivered and the
date by which such financial statements are required to have been delivered
pursuant to clause (a) or (b) of Section 5.01):
Financial Ratios Margin Reduction
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 2.75:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 3.5:1 0.25%
<PAGE>
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 3.25:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 3.0:1 0.50%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 3.75:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.75:1 0.75%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 4.25:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.25:1 1.00%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 5.00:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.00:1 1.125%
In the event (a) Holding shall complete an equity offering for gross
proceeds in excess of $20,000,000 or (b) ASI shall complete, directly or through
a Subsidiary, (i) any offering of Securities for gross proceeds in excess of
$20,000,000, (ii) a refinancing, repurchase or prepayment of Indebtedness in a
principal amount in excess of $20,000,000 (but only, in the case of Indebtedness
outstanding under any revolving credit or similar arrangement, if the
commitments of the lenders are reduced by a corresponding amount) as permitted
under Section 6.04(d) or under Section 6.07 or (iii) an Acquisition for total
consideration (including Funded Debt incurred or assumed and common stock of
Holding) in excess of $20,000,000, then ASI shall deliver to the Administrative
Agent pro forma computations of the ratios referred to above as if such
offering, refinancing or Acquisition had been completed on the first day of the
period of four consecutive fiscal quarters referred to in the proviso above, and
until four complete fiscal quarters shall have elapsed since the date of such
offering, refinancing or Acquisition and financial statements shall have been
delivered with respect thereto under Section 5.01, the Applicable Margin shall
be determined by reference to the pro forma information for such of the four
fiscal quarters preceding and including the fiscal quarter during which the date
of such offering, refinancing or Acquisition shall have occurred as is necessary
to compile information (both pro forma and, to the extent available, actual) for
each period of four fiscal quarters. With respect to an Acquisition, whether or
not such Acquisition shall be completed in reliance on paragraph (m) of Section
6.05, ASI shall also deliver to the Administrative Agent the information
specified in clause (y)(1), (2) or (3) of the proviso to such paragraph (m) at
the time provided therein.
"Applicable Percentage" (a) of any U.S. $ Revolving Credit Lender at any
time shall mean the percentage of the Total U.S. $ Revolving Credit Commitment
represented by such Lender's U.S. $ Revolving Credit Commitment, and (b) of any
Multi-Currency Revolving Credit Lender at any time shall mean the percentage of
the Total Multi-Currency Revolving Credit Commitment represented by such
Lender's Multi-Currency Revolving Credit Commitment.
"ASI" shall have the meaning specified in the heading of this Agreement.
"ASI-BV Intercompany Note" shall mean the Amended, Consolidated and
Restated Secured Promissory Demand Note dated June 1, 1993, of ASI to the Dutch
Borrower, as such ASI-BV Intercompany Note may be amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Assessment Rate" shall mean for any date the annual rate (rounded upwards,
if necessary, to the next 1/100 of 1%) identified by the Administrative Agent
(or, if need be, reasonably estimated by the Administrative Agent) as the then
current net annual assessment rate that will be employed in determining amounts
payable by the Administrative Agent to the Federal Deposit Insurance Corporation
(or any successor) for insurance by such Corporation (or such successor) of time
deposits made in Dollars at the Administrative Agent's domestic offices.
"Assigned Dollar Value" shall mean (a) in respect of any Multi-Currency
Revolving Credit Borrowing denominated in an Alternative Currency, the Dollar
Equivalent thereof determined
<PAGE>
based upon the applicable Spot Exchange Rate as of the Denomination Date for
such Borrowing, (b) in respect of the undrawn amount of any Multi-Currency
Letter of Credit denominated in an Alternative Currency, the Dollar Equivalent
thereof determined based upon the applicable Spot Exchange Rate as of (i) the
date that is three Business Days prior to the date of issuance of such
Multi-Currency Letter of Credit, until the first day after such date of issuance
which is the last day of February, May, August or November and (ii) thereafter,
the most recent date which is the last day of February, May, August or November,
(c) in respect of a Multi-Currency L/C Disbursement denominated in an
Alternative Currency, the Dollar Equivalent thereof determined based upon the
applicable Spot Exchange Rate as of the date such Multi-Currency L/C
Disbursement was made, (d) in respect of a Swingline Loan denominated in an
Alternative Currency, the Dollar Equivalent thereof based upon the applicable
Spot Exchange Rate as of the date that the Administrative Agent determined the
amount thereof following receipt of notice of borrowing of such Swingline Loan
and (e) in respect of any Periodic Access Borrowing denominated in an
Alternative Currency (i) the Dollar Equivalent thereof determined based upon the
applicable Spot Exchange Rate as of the Denomination Date for such Borrowing,
unless and until adjusted pursuant to the following clause (ii), and (ii) if, as
of the end of any Interest Period in respect of such Periodic Access Borrowing,
the Dollar Equivalent thereof determined based upon the applicable Spot Exchange
Rate as of the date that is three Business Days before the end of such Interest
Period would be at least 5% more, or 5% less, than the "Assigned Dollar Value"
thereof at the time, then on and after the end of such Interest Period the
"Assigned Dollar Value" of such Borrowing shall be adjusted to be the Dollar
Equivalent thereof determined based upon the Spot Exchange Rate that gave rise
to such adjustment (subject to further adjustment in accordance with this clause
(ii) thereafter). The Assigned Dollar Value of a Loan included in any Borrowing
shall equal the portion of the Assigned Dollar Value of such Borrowing
represented by such Loan.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit D.
"Assignment and Amendment Agreement" shall mean the Assignment and
Amendment Agreement dated as of February 9, 1995, among the parties to this
Agreement and the Withdrawing Lenders (as defined in the Assignment and Amended
Agreement).
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States or any successor thereto performing similar functions.
"Borrower Group" shall mean any group consisting of (a) a Borrower and its
Subsidiaries (other than the French and Italian Subsidiaries owning interests in
the EEIG Borrower), (b) the French Subsidiaries owning interests in the EEIG
Borrower and their respective Subsidiaries taken as a whole or (c) the Italian
Subsidiaries owning interests in the EEIG Borrower and their respective
Subsidiaries taken as a whole, excluding in each case (i) any Subsidiary which
is itself a Borrower and (ii) any subsidiary of a Subsidiary referred to in the
preceding clause (i).
"Borrowers" shall have the meaning specified in the heading of this
Agreement.
"Borrowing" shall mean (i) a group of Loans of a single Type made under a
single Credit Facility as to which a single Interest Period is in effect or (ii)
a Swingline Loan, as the context may require.
"Borrowing Request" shall mean a request by a Borrower in accordance with
the terms of Section 2.03 in the form of Exhibit A.
"Business Day" shall meanany day on which commercial banks and foreign
exchange markets are open for business and are not required or authorized by law
to close in any of London, New York City or, if such reference relates to the
date on which any amount is to be paid or made available in an Alternative
Currency, the principal financial center in the country of such Alternative
Currency. "CAM" shall mean the mechanism for the allocation and exchange of
interests in the Credit Facilities and collections thereunder established under
Article IX.
<PAGE>
"CAM Exchange" shall mean the exchange of the Lender's interests provided
for in Section 9.01.
"CAM Exchange Date" shall mean the first date on which any event referred
to in Section 7.05 (other than in clause (y) of paragraph (b) thereof) shall
occur in respect of ASI.
"CAM Percentage" shall mean, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the sum of (i) the aggregate
Designated Obligations owed to such Lender and (ii) the sum of the U.S. $ L/C
Exposure and the Multi-Currency L/C Exposure of such Lender, in each case
immediately prior to the CAM Exchange Date and (b) the denominator shall be the
sum of (i) the aggregate Designated Obligations owed to all the Lenders and (ii)
the Aggregate L/C Exposure of all the Lenders, in each case immediately prior to
such CAM Exchange Date. For purposes of computing each Lender's CAM Percentage,
all Designated Obligations and Multi-Currency L/C Exposures which shall be
denominated in Alternative Currencies shall be translated into Dollars at the
Spot Exchange Rate in effect on the CAM Exchange Date. "Canadian Borrower" shall
mean Wabco Standard Trane Inc., an Ontario corporation.
"Canadian Dollars" or "C$" shall mean lawful money of Canada.
"Capital Expenditures" shall mean, with respect to any person for any
period, the sum of (i) the aggregate of all expenditures (whether paid in cash
or Securities or accrued as a liability) by such person during that period
which, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the statement of
cash flows of such person and (ii) to the extent not covered by clause (i)
hereof, the aggregate of all expenditures by such person to acquire by purchase
or otherwise the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any other person (other than the portion of
such expenditures allocable in accordance with GAAP to net current assets) and
(iii) all Investments by such person in respect of any existing or new Joint
Venture or any Subsidiary of ASI which is not a Designated Subsidiary, provided,
that this clause (iii) shall not include as Capital Expenditures Investments by
such person of licenses and similar contract rights with respect to intellectual
property, technology, or know-how of ASI, in any existing or new Joint Venture
or any Subsidiary of ASI which is not a Designated Subsidiary; provided further
that notwithstanding anything herein to the contrary (I) Capital Expenditures
shall not include (A) the contribution by ASI of its 67.5% interest in Hua Mei
to one of the LDC Holding Companies, or the reinvestment by ASI in any LDC
Holding Company of any fees, royalties or dividends received in connection with
the establishment and activities of such LDC Holding Company or Joint Ventures
in which such LDC Holding Company participates, (B) the contribution by ASI and
SCI of any interest in machinery, equipment, inventory and related intangible
assets with an aggregate book value on the books of ASI not in excess of
$8,000,000 to the SCI/Heatcraft Joint Venture, (C) any expenditure that would
otherwise be considered a "Capital Expenditure" consisting of fixed assets,
stock or other capital assets already owned by ASI or a Subsidiary and
contributed by way of Investment in any other person or (D) any Investment
described in clause (n) of Section 6.05 that is redeemed, repaid, sold or
otherwise liquidated in the same fiscal year as originally made, it being
understood that to the extent any such Investment is not so redeemed, repaid,
sold or otherwise liquidated in such fiscal year, the balance thereof shall not
be included as a Capital Expenditure until the following fiscal year for
purposes of calculating Consolidated Free Cash Flow of ASI and (II) any portion
of Capital Expenditures described in clauses (ii) and (iii) above accrued as a
liability shall not be included as Capital Expenditures for purposes of
calculating Consolidated Free Cash Flow of ASI until such liability is paid in
cash.
"Capital Lease", as applied to any person, shall mean any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that person.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
applied on a consistent basis and, for
<PAGE>
the purposes of this Agreement, the amount of such obligations at any time shall
be the capitalized amount thereof at such time determined in accordance with
GAAP applied on a consistent basis.
"Cash Available for Principal Payments" shall mean, for any period, the
Consolidated Net Income of ASI for such period, plus, without duplication, (a)
the amount of depreciation, depletion, amortization of intangibles, deferred
taxes, amortization of debt discount and debt issuance costs, accreted
zero-coupon and other non-cash interest expense, amortization of non-cash
discount and non-cash cost of Currency Protection Agreements and Interest Rate
Protection Agreements and other non-cash items deducted in determining such
Consolidated Net Income, (b) the amount, if any, by which Working Capital
decreased during such period (except to the extent attributable to a Prepayment
Event), (c) the amount, if any, by which Net Joint Venture Investments decreased
during such period (except to the extent attributable to a Prepayment Event),
and (d) the amount, if any, of cash received by ASI and its Consolidated
Subsidiaries during such period pursuant to transactions not in the ordinary
course of business, to the extent receipt of such cash is (x) not included in
income in determining such Consolidated Net Income but to be included in income
in a later period or periods or (y) not attributable to a Prepayment Event,
minus, without duplication, (i) the amount of any non-cash items included in
income in determining such Consolidated Net Income, (ii) the amount, if any, by
which Working Capital increased during such period, (iii) the amount of Capital
Expenditures of ASI and its Consolidated Subsidiaries (determined without giving
effect to clause (I) of the further proviso in the definition of "Capital
Expenditures") during such period (excluding (A) Capital Expenditures to the
extent attributable to Capital Leases or otherwise financed by the incurrence of
Indebtedness, other than Loans and (B) Capital Expenditures in connection with
the repair, restoration or replacement of any property or asset that suffered
any casualty, to the extent of insurance proceeds), (iv) the amount, if any, by
which Net Joint Venture Investments increased during such period, (v) the
amount, if any, of items included in income in determining such Consolidated Net
Income representing cash received and included in calculating "Cash Available
for Principal Payments" in a previous period pursuant to clause (d) above and
(vi) to the extent not deducted in determining such Consolidated Net Income, the
amount of premiums paid in cash by ASI and its Consolidated Subsidiaries during
such period in connection with the prepayment or redemption of Indebtedness and
the amount of debt issuance costs paid in cash by ASI and its Consolidated
Subsidiaries during such period in connection with the incurrence of
Indebtedness; provided, however, that (1) for purposes of calculating Cash
Available for Principal Payments, Consolidated Net Income shall be determined
without regard to any gains, losses, taxes or expenses resulting from or
incurred in connection with a Prepayment Event, and (2) if the income (loss) of
any Excluded Subsidiary was excluded for purposes of determining such
Consolidated Net Income for such period, then all the accounts of such Excluded
Subsidiary also shall be excluded for all purposes of calculating Cash Available
for Principal Payments for such period, as though such Excluded Subsidiary were
an unconsolidated Joint Venture during the entire period.
"Cash Equivalents" shall mean (i) marketable securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) time deposits and
certificates of deposit of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 with maturities of not more
than six months from the date of acquisition, (iii) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clause (i) entered into with any bank or other financial
institution meeting the qualifications specified in clause (ii) above; provided
that the terms of such repurchase agreements comply with the guidelines set
forth in the Federal Financial Institutions Examination Council Supervisory
Policy-Repurchase Agreements of Depository Institutions with Securities Dealers
and Others, as adopted by the Comptroller of the Currency on October 31, 1985,
and (iv) commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000, and commercial paper rated at least A-2 or the equivalent thereof
by S&P or at least P-2 or the equivalent thereof by Moody's and in each case
maturing within six months after the date of acquisition.
"Cash Pooling Arrangement" shall mean an arrangement among a single
depository institution and two or more Foreign Subsidiaries in the same
jurisdiction involving the pooling of cash deposits by such Foreign Subsidiaries
for cash management purposes.
<PAGE>
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) other than Kelso and its officers,
directors and Affiliates, the ESOP and officers, directors and employees of
Holding, ASI and their respective Subsidiaries shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power of the outstanding capital stock of Holding and Kelso and
its officers, directors and Affiliates, the ESOP and officers, directors and
employees of Holding, ASI and their respective Subsidiaries shall at such time
beneficially own, directly or indirectly, in the aggregate a lesser percentage
of the total voting power of the outstanding capital stock of Holding than such
other person or group and shall not have the right or ability by voting power,
contract or otherwise to elect or cause the election of a majority of the Board
of Directors of Holding; (b) a majority of the seats on the Board of Directors
of Holding shall at any time have been occupied by persons who were neither
nominated nor appointed by the Board of Directors of Holding or by Kelso; (c)
any person or group, other than Kelso and its officers, directors and
Affiliates, the ESOP and officers, directors and employees of Holding, ASI and
their respective Subsidiaries, shall otherwise Control Holding; (d) at any time,
Holding shall cease to directly own 100% of the capital stock of ASI other than
preferred stock with an aggregate liquidation preference not to exceed $100,000;
or (e) a change in control (or similar event, however denominated) shall occur
under and as defined in any indenture to which ASI is party.
"Charges" shall have the meaning specified in Section 10.06.
"CIBL" shall mean Chemical Investment Bank Limited, a United Kingdom
corporation.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Collateral" shall mean all the collateral pledged or purported to be
pledged pursuant to any of the Security Documents.
"Collateral Account" shall mean the Collateral Account established pursuant
to the Collateral Account Agreement.
"Collateral Account Agreement" shall mean the collateral account agreement
in form and substance satisfactory to the Administrative Agent, as amended and
supplemented from time to time in accordance with the terms thereof and hereof.
"Collateral Agent" shall mean, in respect of any Security Document, the
Administrative Agent or other person acting as collateral agent, mortgagee,
grantee, collateral trustee or other representative thereunder on behalf of the
holders of the Obligations secured thereby.
"Collateral Trust Agreement" shall mean the Second Amended and Restated
Collateral Trust Agreement dated as of June 1, 1993 between ASI and Chemical
Bank, as Collateral Trustee, as amended and supplemented from time to time in
accordance with the terms thereof and hereof.
"Commitment Fee" shall have the meaning specified in Section 2.05(b).
"Commitments" shall mean, with respect to any Lender, such Lender's Term
Loan Commitment, Periodic Access Loan Commitment, U.S. $ Revolving Credit
Commitment and Multi- Currency Revolving Credit Commitment and, in the case of
the Swingline Lender, the Swingline Commitment.
"Consolidated Capital Expenditures" shall mean, with respect to a person,
the Capital Expenditures of such person and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with the definition of the term
"Capital Expenditures" and otherwise in accordance with GAAP; provided, that in
computing the Consolidated Capital Expenditures of ASI for any period, (i) any
Capital Expenditure shall be excluded to the extent the consideration for such
Capital Expenditure consisted of common stock of Holding and (ii) any
acquisition of a company, a division of a company or a similar business unit (or
of substantially all the assets and business of any of the foregoing) for total
<PAGE>
consideration (including Funded Debt incurred or assumed) in excess of
$20,000,000 shall be excluded if ASI shall so elect and if such acquisition
shall be permitted under paragraph (m) of Section 6.05.
"Consolidated Cash Fixed Charges" of any person shall mean, for any period,
the sum of the amounts for such period of (i) Consolidated Cash Interest Expense
and (ii) cash dividends on preferred or preference stock of such person that are
made during such period, all as determined on a consolidated basis for such
person and its Consolidated Subsidiaries in accordance with GAAP.
"Consolidated Cash Interest Expense" shall mean, with respect to any person
for any period for which such amount is being determined, Consolidated Interest
Expense of such person for such period less the sum of (x) amortization of debt
discount and debt issuance costs and accreted, zero-coupon and other noncash
interest expense and (y) amortization of noncash discount and noncash cost of
Currency Protection Agreements and Interest Rate Protection Agreements for such
person, in each case, for such period.
"Consolidated EBITDA" shall mean for any person, without duplication, for
any period for which such amount is being determined, the sum for such period of
(i) Consolidated Net Income, (ii) provision for taxes based on income, (iii)
Consolidated Interest Expense and (iv) other noncash items (including
depreciation expense and amortization expense) reducing Consolidated Net Income,
all as determined on a consolidated basis for such person and its Consolidated
Subsidiaries in accordance with GAAP. In computing Consolidated EBITDA of ASI
for any period which includes one or more fiscal quarters in fiscal year 1994,
the effect of the 1994 Special Charges shall be excluded.
"Consolidated Free Cash Flow" shall mean, for any period, Consolidated
EBITDA for such period minus Consolidated Capital Expenditures for such period.
"Consolidated Interest Expense" shall mean (adjusted on a pro forma basis
to include the Transactions as though the Transactions occurred on January 1,
1994), with respect to any person, for any period for which such amount is being
determined, total interest expense (including that properly attributable to
Capital Leases in accordance with GAAP and amortization of debt discount and
debt issuance costs) of such person and its Consolidated Subsidiaries on a
consolidated basis, including all capitalized interest, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financings and net costs under Interest Rate Protection
Agreements (including amortization of discount) and Currency Protection
Agreements.
"Consolidated Net Income" shall mean, for any person for any period for
which such amount is being determined, the net income (loss) of such person and
its Consolidated Subsidiaries during such period determined on a consolidated
basis for such period taken as a single accounting period in accordance with
GAAP; provided that there shall be excluded (i) income (or loss) of any person
(other than a Consolidated Subsidiary of the person in respect of which
Consolidated Net Income is being determined) in which any other person (other
than such person or any of its Consolidated Subsidiaries) has an equity
interest, except to the extent of the amount of dividends or other distributions
actually paid to such person or any of its Consolidated Subsidiaries by such
other person during such period, (ii) the income (or loss) of any person accrued
prior to the date it becomes a Consolidated Subsidiary of such person or is
merged into or consolidated with such person or any of its Consolidated
Subsidiaries or the person's assets are acquired by such person or any of its
Consolidated Subsidiaries, (iii) the income (or loss) of any Consolidated
Subsidiary of such person that is an Excluded Subsidiary, except to the extent
of the amount of dividends or other distributions actually paid to such person
or any of its Consolidated Subsidiaries (other than to another Excluded
Subsidiary) by such Excluded Subsidiary during such period, (iv) any after-tax
gains (but not pretax losses) attributable to sales of assets out of the
ordinary course of business, (v) premium expense and write-offs of financing
costs deducted in connection with the prepayment or redemption of Indebtedness
and (vi) fees, royalties or dividends received in connection with the
establishment and activities of, and reinvested in, any LDC Holding Company or
Joint Ventures in which such LDC Holding Company participates. If a Consolidated
Subsidiary is an Excluded Subsidiary at the time of any determination or
calculation pursuant to this Agreement involving a determination of Consolidated
Net Income for any period, then, for purposes of such determination or
calculation, such Consolidated Subsidiary shall be deemed to have been an
Excluded Subsidiary for the entire period (regardless of whether such Subsidiary
was not an Excluded Subsidiary during such period),
<PAGE>
and if at such time a Consolidated Subsidiary is not an Excluded Subsidiary,
then, for purposes of such determination or calculation, such Consolidated
Subsidiary shall be deemed not to have been an Excluded Subsidiary at any time
during such period (regardless of whether such Subsidiary was an Excluded
Subsidiary at any time during such period). Consolidated Net Income of ASI for
fiscal year 1994 shall be computed on a pro forma basis as if the Transactions
had occurred on January 1, 1994.
"Consolidated Rental Payments" shall mean, for any period, the aggregate
amount of all rents paid or payable under all Operating Leases of such person
and its Consolidated Subsidiaries (including Excluded Subsidiaries) as lessee
(net of sublease income), all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Subsidiaries" shall mean, for any person, all Subsidiaries of
such person that should be consolidated with such person for financial reporting
purposes in accordance with GAAP; provided, however, that a Subsidiary that is
an Excluded Subsidiary shall be considered to be a Joint Venture, and not a
"Consolidated Subsidiary", at the times and for the periods determined as
provided in the definition of the term "Consolidated Net Income".
"Consolidated Total Debt" shall mean, for any person, all Indebtedness of
such person and its Consolidated Subsidiaries (other than Indebtedness referred
to in clauses (h), (i) and (j) of the definition of such term), determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded $25,000,000 of any Indebtedness permitted pursuant to Section 6.04(u).
"Contractual Obligation", as applied to any person, shall mean any
provision of any security issued by that person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Credit Documents" shall mean this Agreement, the Assignment and Amendment
Agreement, the Credit Documents Amendment, the Notes, the Letters of Credit, the
Security Documents, the Swingline Loan Agreement, the Guarantee Documents and
the Issuing Bank Agreements.
"Credit Documents Amendment" shall mean the Credit Documents Amendment
Agreement dated as of February 9, 1995, among the ASI Subsidiaries, ASI Parties
(each as defined in the Credit Documents Amendment) and Chemical Bank, as
Administrative Agent and Collateral Agent, as such Credit Documents Amendment
may from time to time be amended, supplemented or modified.
"Credit Facility" shall mean a category of Commitments and extensions of
credit thereunder. For purposes hereof, each of the following comprise a
separate Credit Facility: (i) the Term Loan Commitments and Term Loans; (ii) the
Periodic Access Loan Commitments and Periodic Access Loans; (iii) the U.S. $
Revolving Credit Commitments, U.S. $ Revolving Credit Loans and U.S. $ L/C
Exposure; and (iv) the Multi-Currency Revolving Credit Commitments, Swingline
Exposure, Multi-Currency Revolving Credit Loans and Multi-Currency L/C Exposure.
"Credit Parties" shall mean Holding, the Borrowers and the Subsidiary
Guarantors and each other Subsidiary that is or becomes a member of the EEIG
Borrower.
"CSI" shall mean Chemical Securities Inc., a Delaware corporation.
"Currency Protection Agreement" shall mean any foreign exchange contract,
currency swap agreement or other financial agreement or arrangement designed to
protect against fluctuations in currency values.
"Current Value" shall have the meaning assigned to such term in Section
5.11.
<PAGE>
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Denomination Date" shall mean, in relation to any Alternative Currency
Borrowing, the date that is three Business Days before the date such Borrowing
is made.
"Designated Obligations" shall mean all Obligations of the Credit Parties
in respect of (a) principal of and interest on the Loans and (b) Fees, whether
or not the same shall at the time of any determination be due and payable under
the terms of the Credit Documents.
"Designated Subsidiary" shall mean a Subsidiary of which ASI owns, directly
or through one or more other Subsidiaries, capital stock representing more than
95% of the ordinary voting power.
"Deutsche Marks" or "DM" shall mean lawful money of Germany.
"Dollar Equivalent" shall mean, with respect to an amount of any
Alternative Currency on any date, the amount of Dollars that may be purchased
with such amount of such Alternative Currency at the Spot Exchange Rate with
respect to such Alternative Currency on such date.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Guarantee" shall mean the Amended, Consolidated and Restated
Guarantee dated as of June 1, 1993, by Holding, ASI, and the Subsidiary
Guarantors which are Domestic Subsidiaries, as amended and supplemented from
time to time in accordance with the terms thereof and hereof.
"Domestic Obligations" shall mean all Obligations of Holding, ASI and the
Domestic Subsidiaries.
"Domestic Securities Pledge Agreements" shall mean the securities pledge
agreements dated as of June 1, 1993, between the Collateral Agent and Holding,
ASI and certain Subsidiary Guarantors that are Domestic Subsidiaries, as
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof and hereof.
"Domestic Security Agreements" shall mean the security agreements dated as
of June 1, 1993, between the Collateral Agent and Holding, ASI and the
Subsidiary Guarantors that are Domestic Subsidiaries, as amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof and
hereof.
"Domestic Subsidiary" shall mean a direct or indirect subsidiary of ASI
which is not a Foreign Subsidiary.
"Dutch Borrower" shall mean WABCO Standard Trane B.V., a corporation
organized under the laws of the Kingdom of the Netherlands.
"EEIG Borrower" shall mean Standard Europe, a European Economic Interest
Grouping organized by French and Italian Subsidiaries of ASI to act as a
Borrower hereunder.
"Effective Date" shall mean February 9, 1995.
"Election Date" shall have the meaning specified in Section 2.04(b).
"ll-3/8% Senior Debentures" shall mean ASI's 11-3/8% Senior Debentures Due
2004.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
<PAGE>
"ERISA Affiliate", as applied to any Borrower, shall mean any trade or
business (whether or not incorporated) that is a member of a group of which such
Borrower is a member and which is treated as a single employer under Section 414
of the Code.
"ESOP" shall mean the American-Standard Employee Stock Ownership Plan
created pursuant to an instrument entitled "American-Standard Employee Stock
Ownership Plan" and dated as of April 23, 1988, as amended from time to time.
"Event of Default" shall have the meaning specified in Article VII.
"Excess Cash Flow" shall mean, for any period, the excess, if any, of Cash
Available for Principal Payments for such period over the sum of (a) all
principal payments (including cash payments in respect of accreted and
zero-coupon interest obligations) made by ASI and its Consolidated Subsidiaries
during such period as required repayments pursuant to the terms of any
Indebtedness of ASI or any of its Subsidiaries permitted under this Agreement
(including the Loans), but excluding (i) any such principal payments made in
respect of the Loans pursuant to Section 2.11, (ii) any such principal payments
to the extent refinanced with the incurrence of other Indebtedness, (iii) any
such principal payments in respect of Indebtedness of the type described in
clause (h) or (i) of the definition of the term "Indebtedness", (iv) any such
principal payments in respect of Intercompany Indebtedness, (v) any such
principal payments in respect of Indebtedness described in any of clauses (e)
(other than prepayments which permanently reduce the amount of a Permitted
Receivables Financing), (f), (g), (h), (i), (l), (n), (p), (q), (s) or (t) of
Section 6.04 and (vi) any such principal payments in respect of Indebtedness
incurred after the date hereof in reliance upon clause (o) of Section 6.04 and
(b) the aggregate amount by which the Total Periodic Access Commitment was
reduced during such period pursuant to Section 2.10(b); provided, however, that
if the accounts of any Excluded Subsidiary were excluded for purposes of
determining Cash Available for Principal Payments for such period, then any
principal payments made by such Excluded Subsidiary during such period shall be
disregarded for purposes of calculating Excess Cash Flow for such period.
"Excess Cash Prepayment Amount" shall mean, with respect to any fiscal
year, an amount equal to 50% of the excess of (a) the Excess Cash Flow of ASI
and its Consolidated Subsidiaries for such fiscal year, beginning with the
fiscal year ending December 31, 1995, over (b) the aggregate amount of principal
payments made during such fiscal year in respect of Term Borrowings pursuant to
Section 2.11(a) and the aggregate amount by which the Total Periodic Access
Commitment was reduced during such fiscal year pursuant to Section 2.10(c) in
connection with such prepayments of Term Borrowings.
"Excluded Subsidiary" shall mean (i) any Foreign Subsidiary of ASI that is
prevented from paying dividends or similar distributions by any applicable law,
rule, regulation or order of any Governmental Authority outside the United
States, or the payment of dividends or similar distributions by such Foreign
Subsidiary would, by reason of any such law, rule, regulation or order, be
subject to materially burdensome conditions or costs that render payment of such
dividends or distributions commercially unreasonable, in each case as reasonably
determined by the Board of Directors of ASI, and (ii) any Subsidiary of a
Foreign Subsidiary referred to in the preceding clause (i); provided, however,
that a Borrower shall not be an Excluded Subsidiary. A Foreign Subsidiary shall
constitute an Excluded Subsidiary upon delivery to the Administrative Agent of a
certificate executed by the Secretary or an Assistant Secretary of ASI
certifying that ASI's Board of Directors has determined that such Foreign
Subsidiary is an Excluded Subsidiary in accordance with the terms of this
Agreement, and thereafter such Foreign Subsidiary and its Subsidiaries shall be
considered Excluded Subsidiaries unless and until the Administrative Agent
receives a certificate executed by the Secretary or an Assistant Secretary of
ASI certifying that ASI's Board of Directors has determined that such Foreign
Subsidiary shall no longer constitute an Excluded Subsidiary due to a material
change in the applicable law, rule, regulation or order that resulted in the
designation of such Subsidiary as an Excluded Subsidiary.
"Excluded Taxes" shall mean any present or future taxes, duties, levies,
imposts or other governmental charges on or measured by the overall net income
of any Lender or its applicable lending office or branch (including any advance
payment of such taxes, duties, levies, imposts or other governmental charges
collected by means of withholding), and all franchise taxes, taxes on doing
business or taxes measured by capital or net worth imposed on any Lender or its
applicable lending office or
<PAGE>
branch, (i) imposed by the jurisdiction under the laws of which such Lender is
organized, or in which its principal executive office is located, or by any
country within which any such jurisdiction is located or any political
subdivision thereof; (ii) imposed by the jurisdiction in which the applicable
lending office or branch of such Lender is located, or in which its principal
executive office is located, or by any country within which any such
jurisdiction is located or any political subdivision thereof; or (iii) imposed
by any other jurisdiction, but only to the extent such taxes, duties, levies,
imposts, assessments or other governmental charges would not have been imposed
but for any other connection between the jurisdiction imposing such tax, duty,
levy, impost, assessment or other governmental charge and such Lender or such
applicable lending office or branch (other than a connection arising from this
Agreement or any transaction contemplated thereby). For purposes of this
definition, "Lender" shall have the meaning ascribed to it in Section
2.18(i)(ii).
"Fees" shall mean the Commitment Fees, the L/C Participation Fees, the
Upfront Fees, the Issuing Bank Fees and the Agent and Administrative Fees.
"Finance Subsidiary" shall mean a special purpose subsidiary engaged solely
in purchasing, owning and financing receivables as part of a Permitted
Receivables Financing.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Cash Equivalents" shall mean (i) direct obligations issued or
unconditionally guaranteed by the government of the country in which any
Borrower is incorporated or has its principal place of business, or the
government of the country in which the Foreign Subsidiary investing therein is
incorporated or has its principal place of business, in each case having
maturities of not more than six months from the date of acquisition and (ii)
direct demand obligations of principal banking institutions located in any such
country.
"Foreign Guarantees" shall mean the guarantees executed and delivered by
the Subsidiary Guarantors who are Foreign Subsidiaries, as amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof and
hereof.
"Foreign Pension Plan" shall mean any pension plan or other deferred
compensation plan, program or arrangement maintained by any Foreign Subsidiary
which, under applicable local law, is required to be funded through a trust or
other funding vehicle.
"Foreign Security Agreements" shall mean the security agreements, trust
indentures and debentures between the Collateral Agent and certain Foreign
Subsidiaries, as amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof and hereof.
"Foreign Subsidiary" shall mean each direct or indirect Subsidiary of ASI
which was created or organized under the laws of a jurisdiction other than the
United States of America, any state thereof or the District of Columbia.
"Foreign Supplemental Documents" shall have the meaning specified in
Section 5.12(b).
"French Francs" or "FFr." shall mean lawful money of France.
"Funded Debt" of any person shall mean all Indebtedness of such person
described in clauses (a), (b), (c), (d), (f), (g) and (i) of the definition of
"Indebtedness" which, by its terms or by the terms of any instrument or
agreement relating thereto, matures, or which is otherwise payable, more than
one year from, or is directly or indirectly renewable or extendable at the
option of the debtor to a date more than one year (including an option of the
debtor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of more than one year) from the date on
which Funded Debt is to be determined.
"GAAP" shall mean United States generally accepted accounting principles.
<PAGE>
"German Borrower" shall mean WABCO Standard GmbH, a corporation organized
under the laws of Germany.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include (i) endorsements for collection or deposit, in either case in
the ordinary course of business or (ii) any agreement by ASI or a Subsidiary
thereof to provide working capital to one of its Subsidiaries, if such agreement
is entered into as consideration for obligations incurred by such Subsidiary for
the benefit of ASI or any of its other Subsidiaries and such agreement is not
enforceable by third parties. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such
person is required to perform thereunder); provided, however, that the amount of
any Guarantee that, by its terms, limits the amount payable thereunder to a
stated or determinable amount shall not exceed such stated or determinable
amount.
"Guarantee Documents" shall mean the Domestic Guarantee, the Foreign
Guarantees and any Supplemental Guarantees.
"Guarantor" shall mean each of Holding, ASI and each Subsidiary Guarantor.
"Heatcraft Notes" shall mean promissory notes of Heatcraft Technologies
Inc. in an aggregate principal amount of $34,500,000 contributed to the
SCI/Heatcraft Joint Venture and distributed by such Joint Venture to SCI.
"Holding" shall have the meaning specified in the heading of this
Agreement.
"Hua Mei" shall mean Hua Mei Sanitary Ware Company Ltd., a subsidiary of
ASI organized in the Peoples Republic of China.
"Indebtedness" of any person shall mean (a) all obligations of such person
for borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such person issued or assumed as the
deferred purchase price of property or services purchased by such person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such person, (e) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such person, whether
or not the obligations secured thereby have been assumed, (f) all Guarantees by
such person of Indebtedness of others, (g) all Capital Lease Obligations of such
person, (h) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements, commodity purchase
or option agreements or other interest or exchange rate or commodity price
hedging arrangements, (i) all obligations (contingent or otherwise) of such
person as an account party in respect of letters of credit (other than (x)
documentary letters of credit (including commercial and trade letters of credit)
issued to secure payment obligations in respect of goods and services in the
ordinary course of business and (y) letters of credit and surety bonds with
respect to obligations of such person to the extent
<PAGE>
such obligations are accounted for as liabilities in the financial records of
such person) and bankers' acceptances and (j) the aggregate amount of
uncollected accounts receivable of such person subject at such time to a
Permitted Receivables Financing (or any similar transaction), regardless of
whether such transaction is effected without recourse to such person or in a
manner that would not otherwise be reflected as a liability on a balance sheet
of such person in accordance with GAAP; provided that in determining the amount
of any Indebtedness, Guarantees of such Indebtedness shall not be taken into
account to the extent the guaranteed Indebtedness is itself taken into account.
The Indebtedness of any person shall include the Indebtedness of any partnership
in which such person is a general partner, except to the extent such
Indebtedness is not reflected in the consolidated financial statements of such
person and neither ASI nor any of its Subsidiaries (other than a Subsidiary
owning no assets other than the general partnership interest in such
partnership) shall have any direct or contingent liability for such
Indebtedness.
"Indemnitees" shall have the meaning specified in Section 10.01(b).
"Information Memorandum" shall mean the Confidential Information Memorandum
dated November 1994 prepared by CSI and Chemical Bank from information provided
by ASI and third parties and relating to the transactions contemplated hereby.
"Intercompany Indebtedness" shall mean any Indebtedness of ASI or any
Subsidiary of ASI which, in the case of ASI, is owing to any Subsidiary of ASI
and which, in the case of any Subsidiary of ASI, is owing to ASI or any other
Subsidiary of ASI.
"Intercompany Merger and Transfer Conditions" shall mean, in the case of
any liquidation, dissolution, winding up, merger, consolidation or transfer or
acquisition of assets, (a) that no Event of Default or Default shall have
occurred and be continuing; (b) that after giving effect to such transaction,
(i) except in the case of any transfer or acquisition of less than substantially
all the assets of any person, the surviving or resulting person or the person
acquiring or succeeding to the assets of one or more other persons shall have
assumed or become responsible by operation of law for all the Obligations of the
other person or persons involved in such transfer or acquisition; (ii) the
assets and anticipated cash flows of each Borrower, the Borrower Group of which
is involved in such transaction will, in the good faith judgment of ASI, be
adequate to support the Obligations of such Borrower without giving effect to
guarantees and Liens provided or granted by persons which are not members of the
same Borrower Group; and (iii) the capital stock and assets involved in such
transaction will have been subjected, upon completion of such transaction, to
Liens under the Security Documents to secure the Obligations of the members of
the Borrower Group owning such capital stock and assets and the other
Obligations to the maximum extent practicable without giving rise to (A) any
violation of applicable law, (B) liability of the officers, directors or
shareholders of ASI or any of its Subsidiaries, (C) violation of the provisions
of any joint venture or other material agreement governing or binding ASI or
such Subsidiary, (D) any deemed dividend to ASI or any of its domestic
subsidiaries under Section 956 (or any successor provision) of the Code, (E)
material risk of any of the foregoing or (F) costs which ASI and the Collateral
Agent shall determine to be excessive in relation to the benefits that would be
conferred by such additional instruments or documents (and each Lender and
Issuing Bank authorizes the Collateral Agent, acting in good faith, to make such
determination); (c) that such transaction shall have been carried out in good
faith for valid business purposes and not with a view to limiting or avoiding
any claims or security interests of the Lenders or the Collateral Agent; and (d)
that, in the case of any such transaction involving assets with a book value in
excess of $25,000,000 or the equivalent thereof in another currency, ASI shall
have delivered to the Administrative Agent an Officers' Certificate stating that
the conditions set forth in clauses (a), (b) and (c) above (to the extent
applicable) have been satisfied.
"Intercompany Notes" shall mean (i) promissory notes evidencing
Intercompany Indebtedness which promissory notes, if owed to or held by a Credit
Party, shall, unless otherwise agreed by the Administrative Agent, be payable
upon demand (or, in the case of any such promissory notes issued by a Foreign
Subsidiary, within such period after demand as is customary or required in order
to satisfy applicable legal requirements, but in any event within six months
after demand) and bear interest at current market rates and shall not be
subordinated to any other Indebtedness of the debtor, except that such
promissory notes owed by any Credit Party to any Subsidiary which is not a
Credit Party shall be, to the full extent permitted by applicable law,
subordinated to the payment in full in cash in the applicable
<PAGE>
currency upon the maturity (at stated maturity, by acceleration or otherwise) of
all obligations of such person to the Administrative Agent, the Collateral Agent
and the Lenders hereunder and under the other Credit Documents and of such
person to a Credit Party and (ii) certain customary nonnegotiable instruments
executed in accordance with the laws of Germany, Austria or other countries and
evidencing Intercompany Indebtedness on the same terms and to the same effect as
the promissory notes set forth in clause (i) above.
"Interest Payment Date" shall mean, with respect to any Borrowing, the last
day of the Interest Period applicable thereto and, in the case of any LIBOR
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date for such Borrowing had successive
Interest Periods of three months' duration been applicable to such Borrowing
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any LIBOR Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the applicable Borrower may elect, (b) as to any ABR
Borrowing (other than a Swingline Loan), the period commencing on the date of
such Borrowing and ending on the earlier of (i) the next succeeding day which
shall be the last day of any of February, May, August or November and (ii) the
applicable Maturity Date and (c) as to any Swingline Loan, the period commencing
on the date of such Swingline Loan and ending on the earlier of (i) the day that
is five Business Days thereafter and (ii) the Multi-Currency Revolving Credit
Maturity Date; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a LIBOR Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interest Rate Determination Date" shall mean, with respect to a LIBOR
Borrowing, the date which is two Business Days prior to the commencement of the
Interest Period for such Borrowing.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement or other financial agreements or
arrangements designed to protect against fluctuations in interest rates.
"Investment", as applied to any person, shall mean any direct or indirect
purchase or other acquisition by that person of, or beneficial interest of that
person in, stock or other securities of any other person or any direct or
indirect loan, advance (other than advances to employees for purchases of stock
pursuant to any employee benefit plan or arrangement of ASI or any Subsidiary,
moving and travel expenses, drawing accounts and other customary expenditures,
and security deposits, in each case in the ordinary course of business) or
capital contribution by that person to any other person, including all
indebtedness and accounts receivable from that other person which (i) are not
current assets or (ii) did not arise from sales to that other person in the
ordinary course of business and consistent with past practice. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment, less
the amount of such Investment returned in cash.
"Issuing Bank" shall mean any Lender which shall from time to time be party
to an Issuing Bank Agreement with ASI and the Administrative Agent.
"Issuing Bank Agreement" shall mean an agreement in substantially the form
of Exhibit E.
"Issuing Bank Fees" shall have the meaning specified in Section 2.05(c).
"Italian Lire" or "LIT" shall mean lawful money of Italy.
<PAGE>
"Joint Venture" shall mean (i) as to a person, a corporation, partnership
or other legal entity or arrangement in which such person has an equity
Investment, but that is not a subsidiary of such person, and (ii) an Excluded
Subsidiary.
"Judgment Currency" shall have the meaning specified in Section 10.14.
"Judgment Currency Conversion Date" shall have the meaning specified in
Section 10.14.
"Kelso" shall mean Kelso & Company, Inc., a Delaware corporation.
"L/C Disbursement" shall mean a Multi-Currency L/C Disbursement or U.S. $
L/C Disbursement, as the case may be.
"L/C Participation Fee" shall have the meaning specified in Section
2.05(c).
"LDC Holding Company" shall mean a holding company organized or which may
be organized by ASI as a vehicle for holding stock or other ownership interests
in various joint ventures in lesser developed countries, including the Peoples
Republic of China and India, and any special purpose Subsidiary organized
exclusively to hold the equity of any such holding company and owning no other
assets.
"Lenders" shall have the meaning specified in the heading of this Agreement
and shall include any person that becomes a "Lender" as contemplated by Section
10.04.
"Letter of Credit" shall mean any U.S. $ Letter of Credit or Multi-Currency
Letter of Credit.
"LIBO Rate" shall mean, with respect to any LIBOR Borrowing for any
Interest Period, (i) the interest rate per annum for deposits for a maturity
most nearly comparable to such Interest Period in the currency in which such
Borrowing is denominated which appears on page 3740 or 3750, as applicable, of
the Dow Jones Telerate Screen as of 11:00 a.m., London time, on the day that is
two Business Days prior to the first day of such Interest Period or, if such a
rate does not appear on page 3740 or 3750, as applicable, of the Dow Jones
Telerate Screen, (ii) an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the rate at which deposits in the currency in
which such Borrowing is denominated approximately equal in principal amount to
the Loan of the Administrative Agent, in its capacity as a Lender (or, if the
Administrative Agent is not a Lender in respect of such Borrowing, then the Loan
of the Lender in respect of such Borrowing with the greatest Loan amount),
included in such LIBOR Borrowing and for a maturity comparable to such Interest
Period are offered to the principal London office of the Administrative Agent or
such Lender in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time (or, if such LIBOR Borrowing is
denominated in Sterling, in immediately available funds in the Paris interbank
market at approximately 11:00 a.m., Paris time), on the relevant Interest Rate
Determination Date.
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR Loans.
"LIBOR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of Article
II.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party (other than the issuer) with respect to such securities.
"Loan" shall mean a Term Loan, a Periodic Access Loan, a U.S. $ Revolving
Credit Loan, a Multi-Currency Revolving Credit Loan or a Swingline Loan.
<PAGE>
"Louisiana Facility" shall mean the assets comprising the manufacturing facility
of the SCI/Heatcraft Joint Venture located in Natchitoches, Louisiana.
"Managing Agents" shall have the meaning specified in the heading of this
Agreement.
"Margin Stock" shall have the meaning given such term under Regulation U.
"Materially Adverse Effect" shall mean (a) a materially adverse effect on
the business, operations, condition (financial or otherwise) or assets of (i)
ASI and its Subsidiaries taken as a whole or (ii) the German Borrower and its
Subsidiaries taken as a whole, or (b) impairment of rights or benefits material
to the interests of the Lenders and available to the Lenders, the Issuing Banks,
the Administrative Agent or the Collateral Agent under the terms of the Credit
Documents.
"Maturity Date" shall mean the Term Facility Maturity Date, the Periodic
Access Maturity Date, the U.S. $ Revolving Credit Maturity Date or the
Multi-Currency Revolving Credit Maturity Date, as the context may require.
"Maximum Available Amount" shall have the meaning specified in Article VII.
"Maximum Rate" shall have the meaning specified in Section 10.06.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall mean a term loan and revolving credit mortgage, assignment
of rents, security agreement and fixture filing, or a term loan and revolving
credit deed of trust, assignment of rents, security agreement and fixture filing
or similar instrument creating and evidencing a Lien on a Real Property and
other property and rights incidental to such Real Property, which shall be
substantially in the form of Exhibit F, containing such schedules and including
such additional provisions and other deviations from such Exhibit as shall not
be inconsistent with the provisions of Section 4.02(h) or shall be necessary to
conform such Exhibit to applicable foreign or local law and which shall be dated
the date of delivery thereof and made by the owner of the Real Property
described therein for the benefit of the Collateral Agent, as mortgagee (or
beneficiary), assignee and secured party, as the same may at any time be
amended, modified or supplemented in accordance with the terms thereof and
hereof and, in each case, with such changes therein (whether before or after the
execution and delivery thereof) as are otherwise permitted by Section 10.10.
"Mortgaged Properties" shall mean the Real Properties identified as
"Mortgaged Properties" on Schedule 3.12(b) and each other Real Property required
to be subjected to a Mortgage under Section 5.11.
"Multi-Currency L/C Disbursement" shall mean a payment or disbursement made
by an Issuing Bank pursuant to a Multi-Currency Letter of Credit.
"Multi-Currency L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Multi-Currency Letters of Credit at
such time that are denominated in Dollars, plus (b) the Assigned Dollar Value at
such time of the aggregate undrawn amount of all outstanding Multi-Currency
Letters of Credit at such time that are denominated in Alternative Currencies,
plus (c) the aggregate principal amount of all Multi-Currency L/C Disbursements
denominated in Dollars that have not yet been reimbursed at such time, plus (d)
the Assigned Dollar Value at such time of the aggregate principal amount of all
Multi-Currency L/C Disbursements denominated in Alternative Currencies that have
not yet been reimbursed at such time. The Multi-Currency L/C Exposure of any
Multi-Currency Revolving Credit Lender at any time shall mean its Applicable
Percentage of the aggregate Multi-Currency L/C Exposure at such time.
"Multi-Currency Letter of Credit" shall mean a Letter of Credit issued by
an Issuing Bank pursuant to Section 2.19 on behalf of Lenders holding
Multi-Currency Revolving Credit
<PAGE>
Commitments (including the Scheduled Letters of Credit deemed to have been
so issued pursuant to Section 2.19).
"Multi-Currency Revolving Credit Borrowing" shall mean a Borrowing
comprised of Multi-Currency Revolving Credit Loans.
"Multi-Currency Revolving Credit Commitment" shall mean, with respect to
any Lender at any time, the commitment (if any) of such Lender to make loans
pursuant to Section 2.01(c), to acquire participations in Multi-Currency Letters
of Credit pursuant to Section 2.19 and to acquire participations in Swingline
Loans pursuant to Section 2.20. Subject to Section 10.04, the amount of each
Lender's Multi- Currency Revolving Credit Commitment is the amount set forth
opposite such Lender's name in Schedule II under the caption "Multi-Currency
Revolving Credit Commitment", as such amount may be permanently terminated or
from time to time permanently reduced pursuant to Section 2.10.
"Multi-Currency Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount at such time
of all outstanding Multi-Currency Revolving Credit Loans of such Lender
denominated in Dollars, plus (b) the Assigned Dollar Value at such time of the
aggregate principal amount at such time of all outstanding Multi-Currency
Revolving Credit Loans of such Lender that are Alternative Currency Loans, plus
(c) the aggregate amount at such time of such Lender's Swingline Exposure, plus
(d) the aggregate amount at such time of such Lender's Multi-Currency L/C
Exposure.
"Multi-Currency Revolving Credit Lender" shall mean a Lender with a
Multi-Currency Revolving Credit Commitment.
"Multi-Currency Revolving Credit Loan" shall mean any loan made by a Lender
pursuant to its Multi-Currency Revolving Credit Commitment.
"Multi-Currency Revolving Credit Maturity Date" shall mean the last day of
February in the year 2002.
"Multi-Currency Revolving Credit Note" shall mean a promissory note,
executed and delivered as provided in Section 2.06 and in substantially the form
of Exhibit B-4.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Net Cash Proceeds" shall mean the gross amount of cash consideration
(including any cash received in respect of any non-cash consideration) received
by Holding, ASI or any of their Subsidiaries in respect of any sale, transfer or
other disposition of any property or other asset (including capital stock or
Indebtedness issued by, or accounts receivable from, or other claims against,
another person) or any interests therein, or the issuance of any Securities by
such person, or the issuance or incurrence by such person of any Indebtedness,
or other event requiring a calculation of "Net Cash Proceeds" hereunder, net of
(a) incremental taxes, if any, directly incurred and payable by Holding, ASI or
any such Subsidiary as a result thereof or as a result of transfers of such
consideration to a Borrower or Borrowers in order to make a prepayment hereunder
in respect of any such transaction constituting a Prepayment Event or other
event requiring a calculation of "Net Cash Proceeds", (b) the amount of
reasonable reserves for any liabilities retained in connection with such
transaction, (c) any other reasonable expenses and other costs directly incurred
and payable to unaffiliated third parties as a result thereof, including
amounts, if any, payable pursuant to Section 2.14 as a result of such
transaction or other event requiring a calculation of "Net Cash Proceeds" and
(d) in the case of any such cash consideration received by a Subsidiary other
than a Designated Subsidiary, the portion of such consideration (net of amounts
referred to in clauses (a), (b) and (c) above attributable to taxes,
liabilities, expenses and other costs incurred by such Subsidiary) that would be
distributable in respect of minority interests if such consideration were
distributed as a dividend or similar distribution; provided, however, that the
Net Cash
<PAGE>
Proceeds from a Permitted Receivables Financing shall exclude the proceeds
received from sales of additional accounts receivable following the initial
sale, to the extent that the sales of such additional accounts receivable do not
increase the aggregate amount of uncollected accounts receivable held by the
Receivables Purchaser over the greatest aggregate amount thereof previously held
by the Receivables Purchaser or, as a result of a decrease in the discount rate
at which such accounts receivable are being sold, incrementally increase the net
proceeds to ASI from such sales.
"Net Joint Venture Investments" shall mean, for any period, an amount equal
to (a) the aggregate amount of Investments made by ASI and its Consolidated
Subsidiaries (other than Excluded Subsidiaries) in Joint Ventures during such
period in cash, Cash Equivalents and Foreign Cash Equivalents, minus (b) the
aggregate amount of cash, Cash Equivalents and Foreign Cash Equivalents received
by ASI and its Consolidated Subsidiaries (other than Excluded Subsidiaries)
during such period in respect of Investments in Joint Ventures, but excluding
any such receipts to the extent included in determining Consolidated Net Income
for such period, all determined on a consolidated basis. Net Joint Venture
Investments for any period may be a positive or negative number. Net Joint
Venture Investments increase for a period when they are positive and decrease
for a period when they are negative.
"9-1/4% Sinking Fund Debentures" shall mean ASI's 9-1/4% Sinking Fund
Debentures Due 2016.
"1994 Special Charges" shall mean charges against income of $46,000,000,
including charges of $26,000,000 recorded in the second quarter of fiscal year
1994 for cost reduction actions and charges of $20,000,000 incurred in the
fourth quarter of fiscal year 1994 in connection with the termination of the
Consulting Agreement between ASI and Kelso.
"1993 Credit Agreement" shall mean the Credit Agreement, dated as of June
1, 1993, among ASI Holding Corporation, American Standard Inc., certain
subsidiaries of American Standard Inc., the lenders, managing agents and
co-agents named therein and Chemical Bank, as administrative agent and arranger,
as such 1993 Credit Agreement may before the date hereof have been amended,
supplemented or modified.
"Non-Borrower Subsidiary" shall mean any Subsidiary which is not a
Borrower.
"Non-Material Subsidiary" shall mean any Subsidiary of ASI, whether or not
such Subsidiary is a Credit Party, (i) the revenues of which (directly and
together with its Subsidiaries) for the most recent fiscal year of ASI for which
audited financial statements are available were less than 1% of ASI's
consolidated revenues for such fiscal year and (ii) the consolidated total
assets of which as of the date of such financial statements were less than 1% of
ASI's consolidated total assets as of such date; provided that, in the event the
aggregate of the revenues or consolidated total assets of all such Non- Material
Subsidiaries that are not Credit Parties exceeds 5% of ASI's consolidated
revenues for such fiscal year or 5% of ASI's consolidated total assets as of
such date, respectively, ASI (or, in the event ASI has failed to do so within 10
days, the Administrative Agent) shall designate sufficient Subsidiaries to be
excluded from the definition of "Non-Material Subsidiary" to eliminate such
excess, and such designated Subsidiaries shall not constitute Non-Material
Subsidiaries. Revenues and assets of Foreign Subsidiaries shall be converted
into Dollars at the rates used for purposes of preparing the consolidated
balance sheet of ASI included in such financial statements.
"Non-Redeemable Preferred Stock" shall mean any preferred stock that is
not, by its terms or by the terms of any agreement or instrument pursuant to
which such preferred stock was issued, required to be redeemed at any fixed
date, or redeemable at the option of the holder thereof at any time.
"Notes" shall mean the Term Notes, the Periodic Access Notes, the U.S. $
Revolving Credit Notes, the Multi-Currency Revolving Credit Notes and the
Swingline Note, executed and delivered as provided in Section 2.06 or Section
2.20, as the case may be.
"Notice of Interest Rate Election" shall have the meaning specified in
Section 2.04(b). "Obligations" shall mean (a) the Borrowers' obligations in
respect of the due and punctual payment of principal of and interest on the
Loans and L/C Disbursements when and as due
<PAGE>
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (b) all Fees, expenses, indemnities, expense reimbursement
obligations and other obligations, monetary or otherwise, of the Borrowers under
this Agreement or any other Credit Document and (c) all obligations, monetary or
otherwise, of each other Credit Party under each Credit Document to which it is
a party.
"Obligation Currency" shall have the meaning specified in Section 10.14.
"Offering" shall mean the initial public offering to occur not later than
March 31, 1995, of common stock of Holding in an aggregate number of shares
sufficient to yield gross proceeds of at least $250,000,000 (based on the
initial per share price to the public) and representing the sale of an ownership
percentage in Holding that implies a total equity value for Holding (including
the offered shares) of at least $1,000,000,000.
"Officers' Certificate" shall mean, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer) or its President or one of its Vice Presidents and by its Chief
Financial Officer or its Treasurer or, in the case of Foreign Subsidiaries,
officers or persons performing comparable functions.
"Operating Lease" shall mean, as applied to any person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease under which that person is the lessor.
"Organizational Documents" shall mean, with respect to any person, if such
person is a corporation, its charter and by-laws, if any, or if such person is a
partnership, its certificate of partnership, if any, and partnership agreement
and, in each case, any stockholder or similar agreements between and among the
holders of ownership interests in such person.
"Other Taxes" shall have the meaning specified in Section 2.18(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, or any successor thereto.
"Pension Plan" shall mean any employee pension benefit plan which is
subject to the provisions of Title IV of ERISA and which is maintained for
employees of ASI or any of its Subsidiaries or any ERISA Affiliate of ASI or any
of its Subsidiaries, other than a Multiemployer Plan.
"Perfection Certificate" shall mean an updated certificate substantially in
the form of Exhibit G, duly executed by a Financial Officer and a legal officer
of ASI, duly completed and accompanied by the attachments contemplated thereby.
"Periodic Access Availability Period" shall mean any period of 30
consecutive days commencing on a date specified by ASI by notice to the
Administrative Agent, which notice shall be given not less than 10 days prior to
the commencement of such period; provided, however, that (a) the first Periodic
Access Availability Period shall not commence prior to June 1, 1995, (b) no
Periodic Access Availability Period shall commence within 3 months following the
commencement of any previous Periodic Access Availability Period and (c) not
more than two Periodic Access Availability Periods shall occur in any single
calendar year.
"Periodic Access Borrowing" shall mean a Borrowing comprised of Periodic
Access Loans.
"Periodic Access Lender" shall mean a Lender with a Periodic Access Loan
Commitment.
"Periodic Access Loan" shall mean any loan made by a Lender pursuant to its
Periodic Access Loan Commitment.
<PAGE>
"Periodic Access Loan Commitment" shall mean, with respect to any Lender,
the commitment (if any) of such Lender to make loans pursuant to Section
2.01(d). Subject to Section 10.04, the amount of each Lender's Periodic Access
Loan Commitment is the amount set forth opposite such Lender's name in Schedule
II under the caption "Periodic Access Loan Commitment", as such amount may be
permanently terminated or from time to time reduced pursuant to Section 2.10.
"Periodic Access Loan Exposure" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount at such time of all
outstanding Periodic Access Loans of such Lender denominated in Dollars, plus
(b) the Assigned Dollar Value at such time of the aggregate principal amount at
such time of all outstanding Periodic Access Loans of such Lender that are
Alternative Currency Loans.
"Periodic Access Maturity Date" shall mean the last day of February in the
year 2002.
"Periodic Access Note" shall mean a promissory note, executed and delivered
as provided in Section 2.06 and in substantially the form of Exhibit B-2.
"Permitted Encumbrances" shall mean:
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not at the time required by Section 5.04;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other liens imposed by law or pursuant
to customary reservations or retentions of title, in each case incurred in the
ordinary course of business for sums not yet delinquent or being contested in
good faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made therefor;
(iii) with respect to assets other than Collateral, Liens (other than any
Lien imposed by ERISA) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(iv) Liens in connection with attachments or judgments (including judgment
or appeal bonds) not in excess of $20,000,000 in the aggregate (exclusive of any
amount adequately covered by insurance as to which the insurance company has
acknowledged coverage and exclusive of amounts in respect of attachments the
enforcement of which has been stayed pending appeal and judgments execution of
which has been stayed pending appeal) unless the judgments secured shall, within
60 days after the entry thereof, not have been discharged or execution thereof
not stayed pending appeal, or shall not have been discharged within 30 days
after the expiration of any such stay;
(v) leases or subleases granted to others not interfering in any material
respect with the business of ASI or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business of
ASI or any of its Subsidiaries;
(vii) any interest or title of a lessor under any lease permitted by
Section 6.06;
(viii) Liens arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to leases
permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods;
<PAGE>
(x) deed restrictions to ensure non-disturbance of legally permitted,
permanent on-site waste storage/ treatment facilities; and
(xi) normal and customary rights of setoff upon deposits of cash in favor
of banks or other depository institutions.
"Permitted Receivables Financing" shall mean any sale by ASI and its
Subsidiaries of accounts receivable to a Receivables Purchaser in a true sale
transaction without any recourse based upon the collectibility of the accounts
receivable sold and the sale or pledge of such accounts receivable (or an
interest therein) by such Receivables Purchaser, in each case without any
Guarantee by or other recourse to ASI or any Subsidiary (other than to such
Receivables Purchaser, if it is a Finance Subsidiary); provided that (i) such
accounts receivable arise out of U.S. sales of products by ASI's Air
Conditioning Products Segment and/or Plumbing Products Segment, (ii) the
aggregate amount of uncollected accounts receivable held by such Receivables
Purchaser or otherwise subject to any such transaction at any time shall not
exceed $150,000,000 in the aggregate, (iii) the Administrative Agent shall be
satisfied with the structure and documentation for such transaction and that the
terms of such transaction, including the discount at which accounts receivable
are sold to such Receivables Purchaser and any termination events, shall be
consistent with those prevailing in the market at the time for similar
transactions rated AA or better by S&P or having comparable ratings from other
rating agencies and (iv) such transaction shall not by its terms terminate or be
subject to reduction in amount for at least five years, other than by reason of
the occurrence of an event of default or termination event.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Prepayment Event" shall mean (a) any sale, transfer or other disposition
of any property or other asset (including capital stock or Indebtedness issued
by, or accounts receivable from, or other claims against, another person) or any
interest therein (other than the grant, conveyance or other transfer of a Lien,
to the extent permitted by Section 6.03) by Holding, ASI or any of their
Subsidiaries, including any Permitted Receivables Financing and any transaction
effected in reliance upon Section 6.02(a)(ii), but excluding (i) any such
transaction effected in reliance upon Sections 6.02(a)(iii) or 6.02(a)(iv)(B),
(ii) any such transaction effected in the ordinary course of business in
reliance upon Section 6.02(a)(v) and (iii) any such sale, transfer or other
disposition made by ASI or any Subsidiary thereof to ASI or any Subsidiary
thereof (other than an Excluded Subsidiary) or (b) the issuance or incurrence by
Holding, ASI or any of their Subsidiaries of any Indebtedness (other than any
Indebtedness permitted by Section 6.04 except a Permitted Receivables
Financing), or the issuance or sale by Holding, ASI or any of their Subsidiaries
of any debt securities or any obligations convertible into or exchangeable for,
or giving any person or entity any right, option or warrant to acquire from
Holding, ASI or any of their Subsidiaries any Indebtedness or any such debt
securities or any such convertible or exchangeable obligations (other than any
such debt securities or convertible or exchangeable obligations permitted by
Section 6.04), in an aggregate amount greater than $20,000,000. Notwithstanding
the foregoing, the term "Prepayment Event" shall not include sales, transfers or
other dispositions of any properties or other assets for Net Cash Proceeds not
exceeding in the aggregate $35,000,000 in any calendar year; provided that at
any time when the Net Cash Proceeds received in connection with any such sale,
transfer and other disposition, together with the aggregate Net Cash Proceeds
received in connection with all other such sales, transfers and other
dispositions during the same calendar year, shall exceed $35,000,000, a
"Prepayment Event" shall be deemed to have occurred and the resultant prepayment
in connection with such Prepayment Event shall equal the amount by which the
aggregate Net Cash Proceeds received in connection with such sales, transfers
and other dispositions exceeds $35,000,000.
"Prior Property Documents" shall mean, in respect of any Real Property
subject or to be subject to a Mortgage, any leases, overleases, easement
agreements, covenants or other instruments of record relating to such Real
Property, which instruments have a priority superior to the priority of the Lien
of the Mortgage relating to such Real Property.
"Projected Financial Statements" shall have the meaning specified in
Section 3.08(c).
<PAGE>
"Real Property" shall mean each of the interests in real estate or
leasehold estates owned by ASI or any of its Subsidiaries, together with, in
each case, all improvements and appurtenant fixtures and easements.
"Receivables Purchaser" shall mean either a Finance Subsidiary or a
financial institution or trust that purchases receivables in connection with a
Permitted Receivables Financing.
"Redemption Amount" shall mean at any time (a) the sum of (i) the Net Cash
Proceeds of the Offering, plus (ii) the Net Cash Proceeds of any subsequent
public offering of common stock or Non-Redeemable Preferred Stock of Holding,
plus (iii) the amount, if any, of Excess Cash Flow of ASI for each fiscal year
(commencing with the fiscal year ending December 31, 1995) for which financial
statements shall have been delivered under Section 5.01(b), which shall not have
been (and shall not be required to be) applied as a mandatory prepayment
pursuant to Section 2.11(e), minus (b) the aggregate amount of the cash or other
consideration (at the book value thereof), other than Non-Redeemable Preferred
Stock and common stock of Holding, paid after the date hereof in connection with
(i) Acquisitions and (ii) any prepayment, redemption or repurchase under clause
(ii) of Section 6.07(b) of the Indebtedness specified therein (other than
Indebtedness prepaid, redeemed or repurchased on or prior to the Effective
Date).
"Register" shall have the meaning specified in Section 10.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Claims" shall mean (a) in respect of any Borrower, all obligations
of such Borrower in respect of any Loans and L/C Disbursements that comprise a
single Credit Facility and are denominated in the same currency and (b) in
respect of any other Credit Party, all obligations of such Credit Party in
respect of any Loans and L/C Disbursements that are denominated in the same
currency.
"Related Lenders" shall mean all Lenders holding Related Claims.
"Reportable Event" shall mean any reportable event as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Pension
Plan (other than a Pension Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code).
"Reporting Divisions" shall mean each of the business units of ASI and its
Subsidiaries and subdivisions thereof, as utilized from time to time by ASI for
internal reporting purposes.
"Required Documentation" shall have the meaning specified in Section
2.18(e).
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans), Multi-Currency L/C Exposure, U.S. $ L/C Exposure, Swingline
Exposure and unused Commitments (excluding the Swingline Commitment)
representing a majority of the sum of all Loans (excluding Swingline Loans),
Multi-Currency L/C Exposure, U.S. $ L/C Exposure, Swingline Exposure and unused
Commitments (excluding the Swingline Commitment) at such time. For purposes of
determining the Required Lenders, any amounts denominated in an Alternative
Currency shall be translated into Dollars at the Spot Exchange Rates in effect
on the Effective Date.
<PAGE>
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restricted Junior Payment" shall mean (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of ASI or Holding, now or hereafter outstanding, except (a) a dividend payable
solely in shares of stock of ASI or Holding, as the case may be, or options,
rights or warrants to acquire the same and (b) a dividend or distribution in
respect of the rights associated with the common stock of Holding, whether by
way of redemption of such rights or otherwise, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of ASI or Holding now or
hereafter outstanding, (iii) any payment or prepayment of principal of, premium,
if any, or interest on, redemption, purchase, retirement, defeasance, sinking
fund or similar payment with respect to, any Subordinated Indebtedness, (iv) any
payment made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock of ASI or
Holding now or hereafter outstanding, except payments in respect of rights
associated with the common stock of Holding, whether by way of redemption of
such rights or otherwise, in an aggregate amount not to exceed $5,000,000 and
(v) any loan or advance to Holding.
"Restricted Subsidiary" shall have the meaning specified in the Senior
Indentures.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of U.S. $
Revolving Credit Loans or Multi-Currency Revolving Credit Loans.
"Revolving Credit Commitments" shall mean the U.S. $ Revolving Credit
Commitments and the Multi-Currency Revolving Credit Commitments.
"Revolving Credit Exposures" shall mean the U.S. $ Revolving Credit
Exposures and the Multi-Currency Revolving Credit Exposures.
"Revolving Credit Lenders" shall mean the U.S. $ Revolving Credit Lenders
and the Multi-Currency Revolving Credit Lenders.
"Revolving Credit Loan" shall mean any U.S. $ Revolving Credit Loan or
Multi- Currency Revolving Credit Loan.
"Scheduled Letters of Credit" shall mean the letters of credit listed on
Schedule IV that are outstanding on the Effective Date.
"SCI" shall mean Standard Compressors Inc., a Delaware corporation and a
wholly owned subsidiary of ASI.
"SCI/Heatcraft Joint Venture" shall mean a Delaware partnership formed by
SCI and Heatcraft Technologies Inc. and owned equally at the time of its
formation by such corporations.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Security Documents" shall mean the Domestic Security Agreements, the
Domestic Securities Pledge Agreements, the Foreign Security Agreements, the
Supplemental Security Agreements, the Supplemental Securities Pledge Agreements,
the Mortgages, the financing statements, the Collateral Account Agreement and
the Collateral Trust Agreement.
<PAGE>
"Senior Indentures" shall mean (i) the Indenture dated as of November 1,
1986, between ASI and Wilmington Trust Company, as successor Trustee, relating
to the 9-1/4% Sinking Fund Debentures, and (ii) the Indentures dated as of May
15, 1992, between ASI and First Trust National Association, as trustee, relating
to the 10-7/8% Senior Notes and 11-3/8% Senior Debentures.
"Senior Managing Agents" shall have the meaning specified in the heading of
this Agreement.
"S&P" shall mean Standard & Poor's Corporation.
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on such day by
Chemical Bank in London for such Alternative Currency at approximately 11:00
a.m. (London time), and (b) with respect to Dollars in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered on such day by Chemical Bank in London for Dollars at approximately
11:00 a.m. (London time). For purposes of determining the Spot Exchange Rate in
connection with an Alternative Currency Borrowing, such Spot Exchange Rate shall
be determined as of the Denomination Date for such Borrowing with respect to
transactions in the applicable Alternative Currency that will settle on the date
of such Borrowing.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board or by any other Governmental Authority, domestic or
foreign, with jurisdiction over the Administrative Agent or any Lender
(including any branch, Affiliate or other funding office thereof making or
holding a Loan) (a) with respect to the Base CD Rate (as such term is used in
the definition of "Alternate Base Rate"), for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate applicable to any
Borrowing, for any category of liabilities which includes deposits by reference
to which the Adjusted LIBO Rate in respect of such Borrowing is determined. Such
reserve percentages shall include those imposed pursuant to Regulation D. LIBOR
Loans shall be deemed to constitute "Eurocurrency Liabilities" within the
meaning of Regulation D and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets which may be available
from time to time to any Lender under Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any such
reserve percentage.
"Sterling" or "(pound)" shall mean lawful money of the United Kingdom.
"Stock Incentive Plan" shall mean the American Standard Companies Inc.
Stock Incentive Plan, as such Stock Incentive Plan may from time to time be
amended, supplemented or modified.
"Stockholder Rights Agreement" shall mean the Stockholders Rights Agreement
of American Standard Companies Inc. dated as of December 2, 1994, as such
Stockholders Rights Agreement may from time to time be amended, supplemented or
modified.
"Subordinated Indebtedness" shall mean Indebtedness of ASI subordinated in
right of payment to the Loans and certain other Indebtedness, pursuant to
documentation, containing interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, subordination provisions
and other material terms in form and substance satisfactory to and approved in
writing by the Required Lenders. The terms of the Subordinated Indebtedness
identified in clauses (c) and (d) of Section 6.04 are hereby deemed to be
satisfactory to and to have been approved in writing by the Required Lenders.
"Subordinated Securities" shall mean ASI's 10-1/2% Senior Subordinated
Discount Debentures Due 2005 and its 9-7/8% Senior Subordinated Notes Due 2001,
collectively.
<PAGE>
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, owned, controlled or
held by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent; provided that the LDC Holding
Companies shall not be deemed subsidiaries of Holding or any Borrower.
"Subsidiary" shall mean, with respect to any Borrower, any subsidiary of
such Borrower. Unless otherwise specified, references to Subsidiaries generally
shall be deemed to refer to subsidiaries of ASI.
"Subsidiary Borrowers" shall have the meaning specified in the heading of
this Agreement.
"Subsidiary Guarantor" shall mean each of the Subsidiaries indicated on
Schedule III as a Subsidiary Guarantor, and each other Subsidiary that becomes
party to a Guarantee Document as contemplated by Section 5.12 or otherwise.
"Supplemental Documents" shall have the meaning specified in Section
5.12(a).
"Supplemental Guarantee" shall mean any supplemental guarantee executed and
delivered by a Domestic Subsidiary pursuant to Section 5.12(a) or a Foreign
Subsidiary pursuant to Section 5.12(b) as such supplemental guarantee shall be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof and hereof.
"Supplemental Securities Pledge Agreement" shall mean any supplemental
securities pledge agreement executed and delivered by a Domestic Subsidiary
pursuant to Section 5.12(a) or by a Foreign Subsidiary pursuant to Section
5.12(b), as such supplemental securities pledge agreement shall be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof.
"Supplemental Security Agreement" shall mean any supplemental security
agreement, trust indenture or debenture executed and delivered by a Domestic
Subsidiary pursuant to Section 5.12(a) or a Foreign Subsidiary pursuant to
Section 5.12(b), as such supplemental security agreement, trust indenture or
debenture shall be amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof and hereof.
"Swingline Base Rate" shall mean, for any day, with respect to any
Swingline Loan that is an Alternative Currency Loan, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the average rate at
which overnight deposits in the currency in which such Swingline Loan is
denominated and approximately equal in principal amount to such Swingline Loan
are obtainable by the Swingline Lender on such day at its lending office for
such Swingline Loan in the interbank market (or any other market for overnight
funds in such currency utilized by the Swingline Lender), adjusted to reflect
any direct or indirect costs of obtaining such deposits (including costs
analogous to Statutory Reserves and the Assessment Rate, to the extent
applicable). The Swingline Base Rate applicable to any Swingline Loan that is an
Alternative Currency Loan shall be determined for each day by the Swingline
Lender and such determination shall be conclusive absent manifest error.
"Swingline Commitment" shall mean $40,000,000, as such amount shall be
reduced from time to time pursuant to Section 2.20.
"Swingline Exposure" shall mean at any time the sum of (a) the aggregate
principal amount at such time of all outstanding Swingline Loans denominated in
Dollars, plus (b) the Assigned Dollar Value at such time of the aggregate
principal amount at such time of all outstanding Swingline Loans that are
Alternative Currency Loans. The Swingline Exposure of any Multi-Currency
Revolving Credit Lender at any time shall mean its Applicable Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Chemical Bank.
<PAGE>
"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant
to the Swingline Commitment.
"Swingline Loan Agreement" shall mean the Swingline Loan Agreement dated as
of June 1, 1993, among the Borrowers and the Swingline Lender.
"Swingline Margin" shall mean, for any day, with respect to any Swingline
Loan that is an Alternative Currency Loan, the product of (a) the Applicable
Margin on such day with respect to Revolving Credit Borrowings comprised of ABR
Loans and (b) the conversion factor specified in one or more letter agreements
from time to time entered into by the Swingline Lender and ASI for converting
such Applicable Margin to a comparable margin in the currency in which such
Swingline Loan is denominated.
"Swingline Note" shall mean a promissory note, executed and delivered as
provided in Section 2.20 and in substantially the form of Exhibit B-5.
"Taxes" shall have the meaning assigned to such term in Section 2.18(a).
"10-7/8% Senior Notes" shall mean ASI's 10-7/8% Senior Notes Due 1999.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Facility Maturity Date" shall mean the last day of February in the
year 2000.
"Term Loan Commitment" shall mean, with respect to any Lender, the
commitment (if any) of such Lender to make a loan pursuant to Section 2.01(a).
Subject to Section 10.04, the amount of each Lender's Term Loan Commitment is
the amount set forth opposite such Lender's name in Schedule II under the
caption "Term Loan Commitment", as such amount may be permanently terminated
pursuant to Section 2.10.
"Term Loans" shall mean loans made by the Lenders pursuant to their Term
Loan Commitments.
"Term Note" shall mean a promissory note, executed and delivered as
provided in Section 2.06 and in substantially the form of Exhibit B-1.
"Title Company" shall mean Lawyers Title Insurance Corporation or such
other title insurance company as shall be designated by the Administrative
Agent.
"Total Commitment" shall mean, with respect to any Lender at any time, the
aggregate amount of such Lender's Commitments, as in effect at such time.
"Total Multi-Currency Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Multi-Currency Revolving Credit Commitments, as in
effect at such time.
"Total Periodic Access Commitment" shall mean, at any time, the aggregate
amount of the Periodic Access Loan Commitments, as in effect at such time.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Total U.S. $ Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the U.S. $ Revolving Credit Commitments, as in effect at
such time.
"Transactions" shall have the meaning specified in Section 3.05.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined and
<PAGE>
the currency in which such Loan or the Loans comprising such Borrowing are
denominated. For purposes hereof, "Rate" shall include the Adjusted LIBO Rate,
the Swingline Base Rate and the Alternate Base Rate and "currency" shall include
Dollars and any Alternative Currency permitted hereunder.
"UCC" shall mean the Uniform Commercial Code.
"Unified Receivables Company" shall mean a finance company referred to in
the definition of Unified Receivables Program.
"Unified Receivables Program" shall mean a program under which ASI or any
of its Subsidiaries receives payment in respect of its customers' receivables
from a finance company and ASI or any of its Subsidiaries agrees to repurchase
certain inventory in order to protect the finance company from loss in the event
any such customers default in the payment of their obligations.
"U.K. Borrower" shall mean American Standard (UK) Limited, a corporation
organized under the laws of the United Kingdom.
"Upfront Fees" shall have the meaning specified in Section 2.05(a).
"U.S. $ L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a U.S. $ Letter of Credit.
"U.S. $ L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding U.S. $ Letters of Credit at such time, plus
(b) the aggregate principal amount of all U.S. $ L/C Disbursements that have not
yet been reimbursed at such time. The U.S. $ L/C Exposure of any U.S. $
Revolving Credit Lender at any time shall mean its Applicable Percentage of the
aggregate U.S. $ L/C Exposure at such time.
"U.S. $ Letter of Credit" shall mean a Letter of Credit issued by an
Issuing Bank pursuant to Section 2.19 on behalf of Lenders holding U.S. $
Revolving Credit Commitments (including the Scheduled Letters of Credit deemed
to have been so issued pursuant to Section 2.19).
"U.S. $ Revolving Credit Borrowing" shall mean a Borrowing comprised of
U.S. $ Revolving Credit Loans.
"U.S. $ Revolving Credit Commitment" shall mean, with respect to any
Lender, the commitment (if any) of such Lender to make loans pursuant to Section
2.01(b) and to acquire participations in U.S. $ Letters of Credit pursuant to
Section 2.19. Subject to Section 10.04, the amount of each Lender's U.S. $
Revolving Credit Commitment is the amount set forth opposite such Lender's name
in Schedule II under the caption "U.S. $ Revolving Credit Commitment", as such
amount may be permanently terminated or from time to time permanently reduced
pursuant to Section 2.10.
"U.S. $ Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount at such time of all
outstanding U.S. $ Revolving Credit Loans of such Lender, plus (b) the aggregate
amount at such time of such Lender's U.S. $ L/C Exposure.
"U.S. $ Revolving Credit Lender" shall mean a Lender with a U.S. $
Revolving Credit Commitment.
"U.S. $ Revolving Credit Loan" shall mean any loan made by a Lender
pursuant to its U.S. $ Revolving Credit Commitment.
"U.S. $ Revolving Credit Maturity Date" shall mean the last day of February
in the year 2002.
"U.S. $ Revolving Credit Note" shall mean a promissory note, executed and
delivered as provided in Section 2.06 and in substantially the form of Exhibit
B-3.
<PAGE>
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, as of any date of determination, an amount
equal to (a) the total assets of ASI and its Consolidated Subsidiaries as of
such date which may properly be classified as current assets in accordance with
GAAP, determined on a consolidated basis in accordance with GAAP, but excluding
(i) cash, Cash Equivalents and Foreign Cash Equivalents and (ii) the unamortized
portion of prepaid expenses, minus (b) the total liabilities of ASI and its
Consolidated Subsidiaries as of such date which may properly be classified as
current liabilities in accordance with GAAP, determined on a consolidated basis
in accordance with GAAP, but excluding (i) current liabilities in respect of
Indebtedness and (ii) any income tax liability in respect of sales of assets out
of the ordinary course of business. Working Capital as of any date may be a
positive or negative number. Working Capital increases when it becomes more
positive or less negative and decreases when it becomes less positive or more
negative, and all such increases and decreases shall be determined in a manner
consistent with that used in preparing ASI's consolidated statements of cash
flows for the same period in accordance with GAAP.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. All references herein to any
agreement or instrument shall be deemed references to such agreement or
instrument as amended or modified from time to time, subject to any restrictions
herein on the amendment or modification of such agreement or instrument. Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP consistently applied, as in
effect from time to time; provided, however, that, for purposes of determining
compliance with any covenant set forth in Article VI, such terms shall be
construed in accordance with GAAP as in effect on the date of this Agreement
applied on a basis consistent with the application used in preparing ASI's
audited financial statements referred to in Section 3.08. All references in
Articles III, V, VI and VII of this Agreement to the Borrowers will be deemed to
include the Subsidiaries that own interests in the EEIG Borrower.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make loans to one or more of the Borrowers
(as specified in the Borrowing Request(s) with respect thereto and subject to
assignment in accordance with Section 2.21) on the Effective Date, in Dollars,
in an aggregate principal amount not to exceed such Lender's Term Loan
Commitment. Term Loans will be made only on the Effective Date and amounts paid
or prepaid in respect of Term Loans may not be reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each U.S. $ Revolving Credit
Lender agrees, severally and not jointly, to make loans to one or more of the
Borrowers (as specified in the Borrowing Requests with respect thereto), at any
time and from time to time on and after the Effective Date and until the earlier
of the U.S. $ Revolving Credit Maturity Date and the termination of the U.S. $
Revolving Credit Commitment of such Lender in accordance with the terms hereof,
in Dollars, in an aggregate principal amount at any time outstanding that will
not result in (i) such Lender's U.S. $ Revolving Credit Exposure exceeding (ii)
such Lender's U.S. $ Revolving Credit Commitment. The U.S. $ Revolving Credit
Commitments shall be terminated or reduced from time to time pursuant to Section
2.10. Within the foregoing limits, the Borrowers may borrow, pay or prepay and
reborrow U.S. $ Revolving Credit Loans hereunder, on and after the Effective
<PAGE>
Date and prior to the earlier of the U.S. $ Revolving Credit Maturity Date
and the termination of the U.S. $ Revolving Credit Commitments, subject to the
terms, conditions and limitations set forth herein.
(c) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Multi-Currency Revolving
Credit Lender agrees, severally and not jointly, to make loans to one or more of
the Borrowers (as specified in the Borrowing Requests with respect thereto), at
any time and from time to time on and after the Effective Date and until the
earlier of the Multi-Currency Revolving Credit Maturity Date and the termination
of the Multi-Currency Revolving Credit Commitment of such Lender in accordance
with the terms hereof, in Dollars or one or more Alternative Currencies (as
specified in the Borrowing Requests with respect thereto), in an aggregate
principal amount at any time outstanding that will not result in (i) such
Lender's Multi-Currency Revolving Credit Exposure exceeding (ii) such Lender's
Multi-Currency Revolving Credit Commitment. The Multi-Currency Revolving Credit
Commitments shall be terminated or reduced from time to time pursuant to Section
2.10. Within the foregoing limits, the Borrowers may borrow, pay or prepay and
reborrow Multi-Currency Revolving Credit Loans hereunder, on and after the
Effective Date and prior to the earlier of the Multi-Currency Revolving Credit
Maturity Date and the termination of the Multi- Currency Revolving Credit
Commitments, subject to the terms, conditions and limitations set forth herein.
(d) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Periodic Access Lender
agrees, severally and not jointly, to make loans to one or more of the Borrowers
(as specified in the Borrowing Requests with respect thereto), on the Effective
Date and, subject to the limitations provided below, from time to time
thereafter and until the earlier of the Periodic Access Maturity Date and the
termination of the Periodic Access Loan Commitment of such Lender in accordance
with the terms hereof, in Dollars or one or more Alternative Currencies (as
specified in the Borrowing Requests with respect thereto), in an aggregate
principal amount at any time outstanding that will not result in (i) such
Lender's Periodic Access Loan Exposure exceeding (ii) such Lender's Periodic
Access Loan Commitment; provided, however, that Periodic Access Loans shall be
made only on the Effective Date and on not more than two dates within each
Periodic Access Availability Period. The Periodic Access Loan Commitments are
subject to scheduled reductions as provided in, and may be terminated or reduced
from time to time pursuant to, Section 2.10. Within the foregoing limits, the
Borrowers may borrow, pay or prepay and reborrow Periodic Access Loans
hereunder, on the Effective Date and on not more than two dates within each
Periodic Access Availability Period thereafter and prior to the earlier of the
Periodic Access Maturity Date and the termination of the Periodic Access Loan
Commitments, subject to the terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Loan (other than a Swingline Loan, as to
which this Section 2.02 shall not apply) shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). The Loans comprising any Borrowing shall be in an
aggregate principal amount which is (i) an integral multiple of $5,000,000 and
not less than $10,000,000 or (ii) equal to the remaining available balance of
the applicable Commitments. The Loans comprising each Alternative Currency
Borrowing shall be made in the Alternative Currency specified in the applicable
Borrowing Request in an amount equal to the Alternative Currency Equivalent of
the Dollar amount specified in such Borrowing Request, as determined by the
Administrative Agent as of the Denomination Date for such Borrowing (which
determination shall be conclusive absent manifest error); provided, however,
that (A) for purposes of clause (i) above, each Alternative Currency Borrowing
shall be deemed to be in an aggregate principal amount equal to the Dollar
amount specified in the applicable Borrowing Request for such Borrowing and (B)
if the Dollar Equivalent of an outstanding Multi-Currency Revolving Credit
Borrowing denominated in an Alternative Currency, determined based upon the
applicable Spot Exchange Rate as of the date that is three Business Days before
the end of the Interest Period with respect to such Borrowing, does not exceed
by more than 5% the Assigned Dollar Value of such Borrowing, and if the entire
amount of such Borrowing is to be refinanced with a new Multi-Currency Revolving
Credit Borrowing of equivalent amount in the same currency and by the same
Borrower, then such Multi-Currency Revolving Credit Borrowing may be refinanced
without regard to compliance with clause (i) above and, if so refinanced, shall
continue to have the same Assigned Dollar Value as in effect prior to such
refinancing. The Administrative Agent shall determine the applicable
<PAGE>
Spot Exchange Rate as of the date three Business Days before the end of an
Interest Period with respect to a Multi-Currency Revolving Credit Borrowing
denominated in an Alternative Currency and shall promptly notify ASI and the
Multi-Currency Revolving Credit Lenders whether the Dollar Equivalent of such
Borrowing exceeds by more than 5% the Assigned Dollar Value thereof.
(b) Subject to Sections 2.09 and 2.13, each Borrowing shall be comprised
entirely of LIBOR Loans or ABR Loans as the applicable Borrower may request
pursuant to Section 2.03. Each Lender may, subject to Section 10.04(j), at its
option make any LIBOR Loan or Alternative Currency Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that none of the Borrowers shall be entitled to request any Borrowing
which, if made, would result in (i) more than 25 LIBOR Borrowings outstanding
hereunder at any time or (ii) more than four Term Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods or denominated in different currencies, regardless of
whether they commence or end on the same date, shall be considered separate
Borrowings.
(c) Subject to paragraph (f) below, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer to such
account as the Administrative Agent may designate in federal funds (in the case
of any Loan denominated in Dollars) or such other immediately available funds as
may then be customary for the settlement of international transactions in the
relevant currency not later than 11:00 a.m., New York City time, in the case of
fundings to an account in New York City, or 11:00 a.m., local time, in the case
of fundings to an account in another jurisdiction, and the Administrative Agent
shall by 12:00 (noon), New York City time, in the case of fundings to an account
in New York City, or 12:00 (noon), local time, in the case of fundings to an
account in another jurisdiction, credit the amounts so received to an account
designated by the applicable Borrower in the applicable Borrowing Request, which
account must be in the name of such Borrower and in the financial center of the
country of the currency of such Loan (except that, in the case of Loans
denominated in Dollars and in the case of all Loans made on the Effective Date,
such account shall be in either New York or London) or, if a Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount in the required currency. If the Administrative
Agent shall have so made funds available then, to the extent that such Lender
shall not have made such portion available to the Administrative Agent, such
Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon in such currency, for each day from the date such amount is
made available to the applicable Borrower until the date such amount is repaid
to the Administrative Agent at (i) in the case of the Borrower, the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds in the relevant currency
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, none of the
Borrowers shall be entitled to request any LIBOR Borrowing if the Interest
Period requested with respect thereto would end after the applicable Maturity
Date. All Alternative Currency Borrowings shall be LIBOR Borrowings.
(f) A Borrower may refinance all or any part of a U.S. $ Revolving Credit
Borrowing or Multi-Currency Revolving Credit Borrowing with another U.S. $
Revolving Credit Borrowing or Multi- Currency Revolving Credit Borrowing, as the
case may be, in the same currency, subject to the conditions and limitations set
forth in this Agreement (including the condition that the Aggregate U.S. $
Revolving Credit Exposure or the Aggregate Multi-Currency Revolving Credit
Exposure, as applicable, after giving
<PAGE>
effect thereto will not exceed the Total U.S. $ Revolving Credit Commitment or
the Total Multi-Currency Revolving Credit Commitment, as applicable). Any
Revolving Credit Borrowing or part thereof so refinanced shall be deemed to be
repaid or prepaid in accordance with the applicable provisions of this Agreement
with the proceeds of the new Borrowing, and the proceeds of such new Borrowing,
to the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the applicable Revolving Credit Lenders to the
Administrative Agent or by the Administrative Agent to the applicable Borrower
pursuant to paragraph (c) above.
(g) The Administrative Agent shall notify ASI and the U.S. $ Revolving
Credit Lenders of the amount of the Aggregate U.S. $ Revolving Credit Exposure,
and shall notify ASI and the Multi- Currency Revolving Credit Lenders of the
amount of the Aggregate Multi-Currency Revolving Credit Exposure, promptly
following the last day of each February, May, August and November.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan, as to which this Section 2.03 shall not apply), a
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request in the form of Exhibit A (a) in the case of an
Alternative Currency Borrowing and in the case of a LIBOR Borrowing, not later
than 11:00 a.m., New York City time (or, if the Borrowing Request is delivered
or telecopied to the Administrative Agent in London, 10:00 a.m., London time),
three Business Days before a proposed Borrowing and (b) in the case of an ABR
Borrowing denominated in Dollars, not later than 12:00 noon, New York City time,
one Business Day before a proposed Borrowing; provided, however, that Borrowing
Requests with respect to Borrowings to be made on the Effective Date may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above. Each Borrowing Request shall be irrevocable and shall specify
(i) the Borrower requesting such Borrowing (and be signed by or on behalf of
such Borrower); (ii) if such Borrowing is to be made on the Effective Date,
whether such Borrowing is to be a Term Borrowing, a Periodic Access Borrowing, a
U.S. $ Revolving Credit Borrowing or a Multi-Currency Revolving Credit
Borrowing, or if such Borrowing is to be made after the Effective Date, whether
such Borrowing is to be a Periodic Access Borrowing, a U.S. $ Revolving Credit
Borrowing or a Multi- Currency Revolving Credit Borrowing; (iii)-whether the
Borrowing then being requested is to be a LIBOR Borrowing or an ABR Borrowing;
(iv) the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of Section
2.02(c) and, in the case of a Borrowing denominated in Dollars, shall be at an
office of the Administrative Agent in New York City or London); (v) the date of
such Borrowing (which shall be a Business Day and, in the case of a Periodic
Access Borrowing to be made after the Effective Date, shall be within a Periodic
Access Availability Period); (vi) the amount of such Borrowing (which shall be
expressed in Dollars, regardless of whether such Borrowing is an Alternative
Currency Borrowing); (vii) the currency of such Borrowing (which shall be
Dollars, in the case of the Term Borrowing and any U.S. $ Revolving Credit
Borrowing or ABR Borrowing, and otherwise shall be Dollars or an Alternative
Currency); and (viii) if such Borrowing is to be a LIBOR Borrowing, the Interest
Period with respect thereto; provided, however, that, notwithstanding any
contrary specification in any Borrowing Request, each requested Borrowing shall
comply with the requirements set forth in Section 2.02. If no election as to the
currency of Borrowing is specified in any such notice, then the requested
Borrowing shall be denominated in Dollars. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing if denominated in Dollars or a LIBOR Borrowing if denominated
in an Alternative Currency. If no Interest Period with respect to any LIBOR
Borrowing is specified in any such notice, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly (and in any event on the same day that the
Administrative Agent receives such notice, if received by 11:00 a.m., New York
City time, on such day) advise the applicable Lenders of any notice given
pursuant to this Section 2.03 (and the contents thereof), of each Lender's
portion of the requested Borrowing and, in the case of an Alternative Currency
Borrowing, of the Alternative Currency Equivalent of the Dollar amount specified
in the applicable Borrowing Request and the Spot Exchange Rate utilized to
determine such Alternative Currency Equivalent.
If a Borrower in respect of an outstanding Revolving Credit Borrowing shall
not have delivered a Borrowing Request in accordance with this Section 2.03
prior to the end of the Interest Period then in effect for such Borrowing and
requesting that such Borrowing be refinanced, then such Borrower shall (unless
such Borrower has notified the Administrative Agent, not fewer than three
Business Days prior to the end of such Interest Period, that such Borrowing is
<PAGE>
to be repaid at the end of such Interest Period) be deemed to have
delivered a Borrowing Request requesting that such Borrowing be refinanced with
a new Revolving Credit Borrowing of equivalent amount in the same currency, and
such new Borrowing shall be an ABR Borrowing if denominated in Dollars or a
LIBOR Borrowing with an Interest Period of one month's duration if denominated
in an Alternative Currency.
The sum of (a) the aggregate principal amount of Borrowings by the EEIG
Borrower, plus (b) the Aggregate L/C Exposure under Letters of Credit issued at
the request of the EEIG Borrower, at any one time outstanding, shall not exceed
$575,000,000.
SECTION 2.04. Interest Rate Elections; Conversion and Continuation of
Loans. (a) The initial Type of the Loans comprising each Borrowing, and the
duration of the initial Interest Period applicable to such Loans if they are
initially LIBOR Loans, shall be as specified in the applicable Borrowing Request
pursuant to Section 2.03. Thereafter, the applicable Borrower may from time to
time elect to convert or continue the Type of, or the duration of the Interest
Period applicable to, the Loans included in any Borrowing (excluding overdue
Loans and subject in each case to the provisions of the definition of Interest
Period and Sections 2.09 and 2.13), as follows:
(i) if such Loans are ABR Loans, the applicable Borrower may elect to
convert such Loans to LIBOR Loans, may elect to continue such Loans as ABR Loans
for an additional Interest Period, or may elect to convert such Loans to any
combination of ABR Loans and LIBOR Loans; and
(ii) if such Loans are LIBOR Loans, the applicable Borrower may elect to
convert such Loans to ABR Loans, may elect to continue such Loans as LIBOR Loans
for an additional Interest Period, or may elect to convert such Loans to any
combination of ABR Loans and LIBOR Loans.
Notwithstanding the foregoing, a Borrower may not (A) elect to convert the
currency in which any Loans are denominated, (B) elect to convert Alternative
Currency Loans from LIBOR Loans to ABR Loans, (C) elect an Interest Period for
LIBOR Loans that does not comply with Section 2.02(e), (D) elect to convert any
ABR Loans to LIBOR Loans that would result in the number of LIBOR Borrowings
exceeding the maximum number of LIBOR Borrowings permitted under Section
2.02(b), (E) elect an Interest Period for LIBOR Loans unless the aggregate
outstanding principal amount of LIBOR Loans (including any LIBOR Loans made to
such Borrower in the same currency on the date that such Interest Period is to
begin) to which such Interest Period will apply complies with the requirements
as to minimum principal amount set forth in Section 2.02(a) or (F) elect to
convert or continue any Revolving Credit Loan or Swingline Loan.
(b) Any election permitted by Section 2.04(a) may become effective on any
Business Day specified by the applicable Borrower (the "Election Date"). Each
such election shall be made by the applicable Borrower by delivering or
telecopying a notice (a "Notice of Interest Rate Election") to the
Administrative Agent (x) not later than 11:00 a.m., New York City time, one
Business Day before the Election Date, if all the resulting Loans will be ABR
Loans and (y) not later than 10:00 a.m., New York City time, (or, if the Notice
of Interest Rate Election is delivered or telecopied to the Administrative Agent
in London, 10:00 a.m., London time), three Business Days before the Election
Date, if the resulting Loans will include LIBOR Loans. Each Notice of Interest
Rate Election shall specify the outstanding Loans to which such notice applies
and the following information:
(i) the Election Date;
(ii) whether such Loans are to be converted to or continued as ABR Loans or
LIBOR Loans and, if such Loans are to be converted to or continued as LIBOR
Loans, the duration of the Interest Period applicable thereto; and
(iii) if such Loans are to be converted to a combination of ABR Loans and
LIBOR Loans, the information specified in clause (ii) above as to each resulting
Borrowing and the aggregate amount of each such Borrowing.
<PAGE>
Each Notice of Interest Rate Election shall comply with the provisions of
the definition of Interest Period and the last sentence of Section 2.04(a).
(c) Upon receipt of a Notice of Interest Rate Election, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's share of the resulting Borrowing and such notice shall not thereafter
be revocable by the applicable Borrower.
(d) If a Borrower fails to deliver a timely Notice of Interest Rate
Election to the Administrative Agent electing to convert or continue the Loans
included in any Borrowing as provided in this Section and has not theretofore
delivered a notice of prepayment relating to such Loans, then such Borrower
shall be deemed to have given the Administrative Agent a Notice of Interest Rate
Election electing (i) in the case of Loans denominated in Dollars, to convert
such Loans to (or continue such Loans as) ABR Loans or (ii) in the case of
Alternative Currency Loans, electing to continue such Loans as LIBOR Loans with
an Interest Period of one month, in each case with an Interest Period commencing
on the last day of the then current Interest Period.
(e) Notwithstanding the foregoing, a Borrower shall not be entitled to
specify or elect in any Borrowing Request or Notice of Interest Rate Election
that any Loans denominated in Dollars shall be or become LIBOR Loans if an Event
of Default shall have occurred and be continuing unless the Required Lenders
shall have notified the Administrative Agent that additional LIBOR Loans
denominated in Dollars shall be made available while such Event of Default is
continuing. If an Event of Default shall occur then, unless the Administrative
Agent shall receive such notice from the Required Lenders, thereafter, until all
Events of Default have been cured or waived (or such notice has been received),
each outstanding Loan denominated in Dollars shall be converted to or continued
as an ABR Loan on the last day of its Interest Period and any additional Loans
denominated in Dollars shall be made as ABR Loans. The foregoing is without
prejudice to the other rights and remedies available hereunder upon an Event of
Default.
SECTION 2.05. Fees. (a) ASI agrees to pay, or cause one or more of the
Borrowers to pay, to each Lender, through the Administrative Agent, and to the
Administrative Agent, on the date hereof and on the Effective Date (to the
extent not previously paid), the fees (the "Upfront Fees") separately agreed to
be payable by ASI to each such Lender and to the Administrative Agent on the
Effective Date.
(b) ASI agrees to pay, or cause one or more of the Borrowers to pay, to the
U.S. $ Revolving Credit Lenders and the Multi-Currency Revolving Credit Lenders,
as appropriate, through the Administrative Agent, on the last day of February,
May, August and November of each year and on the date on which the U.S. $
Revolving Credit Commitments of the U.S. $ Revolving Credit Lenders and the
Multi-Currency Revolving Credit Commitments of the Multi-Currency Revolving
Credit Lenders shall be terminated as provided herein, a commitment fee (a
"Commitment Fee") of 0.375% per annum on the average daily unused amount of the
Total U.S. $ Revolving Credit Commitment and the Total Multi- Currency Revolving
Credit Commitment, as applicable, during the preceding quarter (or shorter
period commencing with the Effective Date or ending with the date on which the
Total U.S. $ Revolving Credit Commitment or the Total Multi-Currency Revolving
Credit Commitment, as applicable, shall be terminated); provided that so long as
no Event of Default shall have occurred and be continuing, each such Commitment
Fee shall be reduced by the amount set forth under the caption "Fee Reduction"
below opposite whichever of the financial ratio conditions for ASI and its
Consolidated Subsidiaries set forth under the caption "Financial Ratios" below
is satisfied and results in the greatest reduction (with satisfaction of such
financial ratio conditions being determined based on the balance sheets most
recently delivered to the Lenders pursuant to clause (a) or (b) of Section 5.01
and the related statements of income for the period of four consecutive fiscal
quarters ended as of the date of such balance sheets, after giving effect to any
pro forma adjustments thereto as provided below, and with each "Financial Ratio"
and any corresponding change in the applicable Commitment Fee becoming effective
on the earlier of the date on which such financial statements are delivered and
the date by which such financial statements are required to have been delivered
pursuant to clause (a) or (b) of Section 5.01):
<PAGE>
Financial Ratios Fee Reduction
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 2.75:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 3.5:1 .0625%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 3.25:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 3.0:1 .1250%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 3.75:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.75:1 .1500%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 4.25:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.25:1 .1750%
Ratio of Consolidated Free Cash Flow to Consolidated Cash
Fixed Charges > 5.00:1 and Ratio of Consolidated Total
Debt to Consolidated EBITDA 2.00:1 .1875%
In the event (a) Holding shall complete an equity offering for gross
proceeds in excess of $20,000,000 or (b) ASI shall complete, directly or through
a Subsidiary, (i) any offering of Securities for gross proceeds in excess of
$20,000,000, (ii) a refinancing, repurchase or prepayment of Indebtedness in a
principal amount in excess of $20,000,000 (but only, in the case of Indebtedness
outstanding under any revolving credit or similar arrangement, if the
commitments of the lenders are reduced by a corresponding amount) as permitted
under Section 6.04(d) or Section 6.07 or (iii) an Acquisition for total
consideration (including Funded Debt incurred or assumed and common stock of
Holding) in excess of $20,000,000, then ASI shall deliver to the Administrative
Agent pro forma computations of the ratios referred to in the proviso above as
if such offering, refinancing or Acquisition had been completed on the first day
of the period of four consecutive fiscal quarters referred to above, and until
four complete fiscal quarters shall have elapsed since the date of such
offering, refinancing or Acquisition and financial statements shall have been
delivered with respect thereto under Section 5.01, the Applicable Margin shall
be determined by reference to the pro forma information for such of the four
fiscal quarters preceding and including the fiscal quarter during which the date
of such offering, refinancing or Acquisition shall have occurred as is necessary
to compile information (both pro forma and, to the extent available, actual) for
each period of four fiscal quarters. With respect to an Acquisition, whether or
not such Acquisition shall be completed in reliance on paragraph (m) of Section
6.05, ASI shall also deliver to the Administrative Agent the information
specified in clause (y)(1), (2) or (3) of the proviso to such paragraph (m) at
the time provided therein.
All Commitment Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. For purposes of calculating Commitment Fees,
any portion of the Total Multi-Currency Revolving Credit Commitment unavailable
due to outstanding Swingline Loans shall be deemed to be unused amounts of the
Total Multi-Currency Revolving Credit Commitment. Commitment Fees shall commence
to accrue on the Effective Date and shall cease to accrue on the earlier of (i)
the U.S. $ Revolving Credit Maturity Date or the Multi-Currency Revolving Credit
Maturity Date, as applicable or (ii) the termination of the Total U.S. $
Revolving Credit Commitment or the Total Multi-Currency Revolving Credit
Commitment, as applicable. For purposes of this paragraph, the unused amount of
the Total U.S. $ Revolving Credit Commitment on any day shall be deemed to be
the excess, if any, of (i) the Total U.S. $ Revolving Credit Commitment over
(ii) the Aggregate U.S. $ Revolving Credit Exposure on such day. For purposes of
this paragraph, the unused amount of the Total Multi-Currency Revolving Credit
Commitment on any day shall be deemed to be the excess, if any, of (i) the Total
Multi-Currency Revolving Credit Commitment over (ii) the Aggregate
Multi-Currency Revolving Credit Exposure (excluding Swingline Exposure) on such
day.
(c) ASI agrees to pay, or to cause the applicable Account Parties to pay,
(i) to each U.S. $ Revolving Credit Lender and Multi-Currency Revolving Credit
Lender, through the Administrative Agent, on the last day of February, May,
August and November of each year and on the date on which the
<PAGE>
U.S. $ Revolving Credit Commitment or the Multi-Currency Revolving Credit
Commitment of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on each U.S. $ Revolving Credit Lender's
Applicable Percentage of the average daily aggregate U.S. $ L/C Exposure and on
each Multi-Currency Revolving Credit Lender's Applicable Percentage of the
average daily aggregate Multi-Currency L/C Exposure (excluding, in each case,
the portion thereof attributable to unreimbursed L/C Disbursements) during the
preceding quarter (or shorter period commencing with the Effective Date or
ending with the U.S. $ Revolving Credit Maturity Date or Multi-Currency
Revolving Credit Maturity Date, as applicable, or any date on which the U.S. $
Revolving Credit Commitment or Multi-Currency Revolving Credit Commitment, as
applicable, of such Lender shall be terminated) at a rate equal to the
Applicable Margin from time to time applicable for purposes of determining the
interest rate on U.S. $ Revolving Credit Borrowings or Multi-Currency Revolving
Credit Borrowings, as applicable, comprised of LIBOR Loans pursuant to Section
2.07 and (ii) to the applicable Issuing Bank with respect to each Letter of
Credit the fees specified in its Issuing Bank Agreement plus, in connection with
the issuance, amendment or transfer of any Letter of Credit or any L/C
Disbursement, the applicable Issuing Bank's customary documentary and processing
charges (collectively, the "Issuing Bank Fees"). All L/C Participation Fees and
Issuing Bank Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(d) ASI agrees to pay, or to cause one or more of the Borrowers to pay, to
the Administrative Agent, for its own account, agent and administrative fees
(the "Agent and Administrative Fees") at the times and in the amounts separately
agreed upon between ASI and the Administrative Agent.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank entitled thereto. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.06. Notes; Repayment of Loans. (a) Each Borrower agrees that the
outstanding principal balance of its Term Loans shall be due and payable in ten
semi-annual installments, payable on the last day of February and August of each
year, commencing on August 31, 1995. Subject to paragraph (e) below, each such
installment shall be in an aggregate principal amount equal to $10,000,000. In
any event, the final such installment shall be payable on the Term Facility
Maturity Date in an amount equal to the remaining unpaid principal amount of the
Term Loans. All principal payments of Term Loans shall be accompanied by accrued
interest on the principal amount being repaid to the date of payment.
(b) Each Borrower agrees that the outstanding principal balance of its
Periodic Access Loans shall be due and payable on the Periodic Access Maturity
Date. All principal payments of Periodic Access Loans shall be accompanied by
accrued interest on the principal amount being repaid to the date of payment.
(c) Each Borrower agrees that the outstanding principal balance of each of
its Revolving Credit Loans shall be due and payable on the last day of the
Interest Period applicable to such Loan or, if earlier, on the U.S. $ Revolving
Credit Maturity Date or Multi-Currency Revolving Credit Maturity Date, as
applicable. All principal payments of Revolving Credit Loans shall be
accompanied by accrued interest on the principal amount being repaid to the date
of payment.
(d) Each Borrower shall, at the request of any Lender, duly execute and
deliver to such Lender a Note or Notes, dated the Effective Date, in
substantially the form attached hereto as Exhibit B-1, B-2, B-3 or B-4, as
appropriate, with the blanks appropriately filled, payable to the order of such
Lender (or, if such Lender shall so request, to such Lender or registered
assigns). Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a Note payable to such Lender and its
registered assigns, the interests represented by that Note shall at all times
(including after any assignment of all or part of such interest pursuant to
Section 10.04) be represented by one or more Notes payable to the payee named
therein or its registered assigns. The failure of any Lender to request a Note
hereunder shall in no way diminish the obligation of the applicable Borrower to
pay the principal of and interest on the Loans that would have been evidenced by
such Note in accordance with the terms of this Agreement.
<PAGE>
(e) Any prepayment of Term Loans pursuant to Section 2.11 shall be applied
to reduce, in order of maturity, all repayment installments (including the final
installment payable on the Term Facility Maturity Date) of Term Loans scheduled
to be payable subsequent to the date of such prepayment (after giving effect to
any previous reductions of such repayment installments pursuant to this
paragraph).
(f) Each Lender shall, and is hereby authorized by each of the Borrowers
to, maintain in accordance with its usual practice records evidencing the
indebtedness of each of the Borrowers to such Lender hereunder from time to
time, including the amounts and types of and the Interest Periods applicable to
the Loans made by such Lender from time to time and the amounts of principal and
interest paid to such Lender from time to time in respect of such Loans.
(g) The entries made in the records maintained pursuant to paragraph (f) of
this Section and in the Register maintained by the Administrative Agent pursuant
to Section 10.04 shall be prima facie evidence of the existence and amounts of
the Loans of the Borrower to which such entries relate; provided, however, that
the failure of any Lender or the Administrative Agent to maintain or to make any
entry in such records or the Register, as applicable, or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of Section
2.08, the Loans comprising each LIBOR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Margin. Interest on each LIBOR Borrowing
shall be payable on each applicable Interest Payment Date. The Adjusted LIBO
Rate for each Interest Period shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of (i) 365 or 366 days, as the case may be, during any
period in which the Alternate Base Rate is based on the Prime Rate, and (ii) 360
days, during any period in which the Alternate Base Rate is based on the Base CD
Rate or the Federal Funds Effective Rate) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin. Interest on each ABR Borrowing
shall be payable on each applicable Interest Payment Date. The Alternate Base
Rate shall be determined by the Administrative Agent for each day such
determination is required, and such determination shall be conclusive absent
manifest error.
SECTION 2.08. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether at scheduled maturity, by notice of prepayment,
acceleration or otherwise, such Borrower shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at,
(a) in the case of principal or interest, the rate that would have been
applicable to such Loan but for such default plus 2% per annum or (b) in the
case of any other amount, a rate (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the Alternate Base Rate plus the
Applicable Margin with respect to Revolving Credit Borrowings plus 2% per annum.
SECTION 2.09. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a LIBOR Borrowing of any Type the Administrative Agent shall
have determined or shall have been notified by the Required Lenders (a) that
deposits in the principal amounts of the Loans comprising such Borrowing and in
the currency in which such Loans are to be denominated are not generally
available in the relevant market, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, or (b) that the rates at which such
deposits are being offered will not adequately and fairly reflect the cost to
Lenders holding a material amount of the Loans included in such LIBOR Borrowing
of making or maintaining their LIBOR Loans during such Interest Period, the
Administrative Agent shall, in a timely manner, give written or telecopy notice
of such determination to the Borrowers and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrowers
and the Lenders that the circumstances
<PAGE>
giving rise to such notice no longer exist, any request by a Borrower for a
LIBOR Borrowing of the affected Type or in the affected currency, or a
conversion to or continuation of a LIBOR Borrowing of the affected Type or in
the affected currency, pursuant to Section 2.03 or 2.04 shall be deemed
rescinded. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments. (a) The Term Loan
Commitments shall be automatically terminated at the Administrative Agent's
close of business on the Effective Date. The Periodic Access Loan Commitments
shall be automatically terminated on the Periodic Access Maturity Date. The U.S.
$ Revolving Credit Commitments shall be automatically terminated on the U.S. $
Revolving Credit Maturity Date. The Multi-Currency Revolving Credit Commitments
and the Swingline Commitment shall be automatically terminated on the
Multi-Currency Revolving Credit Maturity Date.
(b) Subject to paragraph (f) below, the Periodic Access Loan Commitments
shall be automatically reduced by (i) $15,000,000 on August 31, 1995 and on the
last day of each February and August thereafter through and including the last
day of February in the year 1998, (ii) $25,000,000 on August 31, 1998, February
28, 1999, and August 31, 1999, (iii) $35,000,000 on February 29, 2000, August
31, 2000 and February 28, 2001 and (iv) $40,000,000 on August 31, 2001 and on
the Periodic Access Maturity Date (or, if the amount of such scheduled reduction
exceeds the Total Periodic Access Commitment on any such date, then the Total
Periodic Access Commitment shall be automatically terminated on such date).
(c) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, ASI (on behalf of all the
Borrowers) may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the U.S. $ Revolving Credit Commitments, the
Multi-Currency Revolving Credit Commitments or the Periodic Access Loan
Commitments; provided, however, that (i) each partial reduction of the U.S. $
Revolving Credit Commitments or the Multi- Currency Revolving Credit Commitments
shall be in an integral multiple of $5,000,000 and in a minimum principal amount
of $10,000,000, (ii) the Total U.S. $ Revolving Credit Commitment shall not be
reduced to an amount that is less than the U.S. $ L/C Exposure at the time,
(iii) the Total Multi- Currency Revolving Credit Commitment shall not be reduced
to an amount that is less than the sum of the Multi-Currency L/C Exposure and
Swingline Exposure at the time and (iv) a termination or reduction of the
Periodic Access Loan Commitments under this paragraph shall not be permitted
except in connection with a simultaneous prepayment of the Term Borrowings
pursuant to Section 2.11(a) in compliance with the terms of such Section,
including clause (iii) of the proviso thereto.
(d) The Periodic Access Loan Commitments shall be reduced at the times and
in the amounts specified in paragraph (b) above and Section 2.11.
(e) In the event of any reduction of the Periodic Access Loan Commitments
pursuant to paragraph (d) above, the aggregate amount of such reduction shall be
applied to decrease, in order of maturity, the respective amounts of the
scheduled reductions of the Periodic Access Loan Commitments pursuant to
paragraph (b) above that are scheduled to occur subsequent to the date of such
reduction (after giving effect to any previous decreases pursuant to this
paragraph).
(f) Each reduction in the Periodic Access Loan Commitments hereunder shall
be made ratably among the Periodic Access Lenders in accordance with their
respective Periodic Access Loan Commitments. Each reduction in the U.S. $
Revolving Credit Commitments shall be made ratably among the U.S. $ Revolving
Credit Lenders in accordance with their respective U.S. $ Revolving Credit
Commitments, and each reduction in the Multi-Currency Revolving Credit
Commitments shall be made ratably among the Multi-Currency Revolving Credit
Lenders in accordance with their respective Multi- Currency Revolving Credit
Commitments. ASI shall pay to the Administrative Agent for the accounts of the
Revolving Credit Lenders, on the date of each termination or reduction of the
Revolving Credit Commitments, the Commitment Fees on the amount of such
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.11. Prepayment. (a) Voluntary Prepayments. Each Borrower shall
have the right at any time and from time to time to prepay any Borrowing, in
<PAGE>
whole or in part, upon giving written or telecopy notice (or telephone
notice promptly confirmed by written or telecopy notice) to the Administrative
Agent before 11:00 a.m., New York City time (or, in the case of prepayment of an
Alternative Currency Borrowing in respect of which previous notices have been
delivered to the Administrative Agent in London, then to the Administrative
Agent in London before 10:00 a.m., London time), three Business Days prior to
prepayment; provided, however, that (i) each partial prepayment of a Revolving
Credit Borrowing or Periodic Access Borrowing under this paragraph shall be in
an amount which is an integral multiple of $5,000,000 (or the equivalent based
upon Assigned Dollar Values) and not less than $10,000,000 (or the equivalent
based upon Assigned Dollar Values), (ii) a partial prepayment of a LIBOR
Borrowing under this paragraph shall not be made that would result in the
remaining aggregate outstanding principal amount thereof being less than the
minimum principal amount that would be required pursuant to Section 2.02(a) in
respect of a LIBOR Borrowing made on the date of such prepayment (determined
based upon Assigned Dollar Values in the case of Multi-Currency Revolving Credit
Borrowings and Periodic Access Borrowings), (iii) a prepayment of Term
Borrowings under this paragraph shall not be permitted unless (A) at the time of
such prepayment, the Term Borrowings are prepaid, and the Periodic Access Loan
Commitments are reduced pursuant to Section 2.10(c), pro rata in accordance with
the aggregate outstanding principal amounts of such Term Borrowings and the
amount of the Total Periodic Access Commitment, respectively, and (B) if such
prepayment is a partial prepayment, the aggregate amount of such prepayments and
reduction shall be in an amount which is an integral multiple of $5,000,000 and
not less than $10,000,000 and (iv) a prepayment of a Periodic Access Borrowing
under this paragraph shall not be permitted except during a Periodic Access
Availability Period and only if one or more Periodic Access Borrowings are made
on the same date as such prepayment resulting in the Aggregate Periodic Access
Loan Exposure being equal to the Total Periodic Access Commitment after giving
effect to all Borrowings and prepayments, and all reductions of the Total
Periodic Access Commitment, made on such date. Prepayments of Term Borrowings
and Periodic Access Borrowings will be applied to reduce the remaining scheduled
payments or commitment reductions in respect of such Credit Facilities in the
order of maturity.
(b) Required Periodic Access Prepayments. (i) In the event of any
termination of the Periodic Access Loan Commitments, each Borrower shall repay
or prepay all its outstanding Periodic Access Borrowings on the date of such
termination.
(ii) In the event of any partial reduction of the Periodic Access Loan
Commitments, then (A) at or prior to the effective date of such reduction, the
Administrative Agent shall notify ASI and the Lenders having Periodic Access
Loan Commitments of the Aggregate Periodic Access Loan Exposure and (B) if the
Aggregate Periodic Access Loan Exposure would exceed the Total Periodic Access
Commitment after giving effect to such reduction, then ASI shall, on the date of
such reduction, cause the Borrowers to repay or prepay Periodic Access
Borrowings having an Assigned Dollar Value in an amount sufficient to eliminate
such excess.
(iii) In the event that at the end of any Interest Period in respect of a
Periodic Access Borrowing the Assigned Dollar Value thereof shall either
increase or decrease, then (A) at or prior to the end of such Interest Period,
the Administrative Agent shall notify ASI and the Lenders having Periodic Access
Loan Commitments of the amount of such increase or decrease and of the resulting
Aggregate Periodic Access Loan Exposure and (B) in the case of an increase, if
the resulting Aggregate Periodic Access Loan Exposure would exceed the Total
Periodic Access Commitment after giving effect to such increase, then ASI shall,
on the date such increase becomes effective, cause the Borrower in respect of
such Periodic Access Borrowing to repay or prepay a portion thereof in an amount
sufficient to reduce the Assigned Dollar Value of such Borrowing to an amount
equal to the Assigned Dollar Value thereof before giving effect to such
increase.
(c) Required Revolving Credit Prepayments. (i) In the event of any
termination of the U.S. $ Revolving Credit Commitments or the Multi-Currency
Revolving Credit Commitments, each Borrower shall repay or prepay all its
outstanding U.S. $ Revolving Credit Borrowings or Multi-Currency Revolving
Credit Borrowings, as the case may be, on the date of such termination.
(ii) In the event of any partial reduction of the U.S. $ Revolving Credit
Commitments or the Multi-Currency Revolving Credit Commitments, then (A) at or
prior to the effective date of such reduction, the Administrative Agent shall
notify ASI and the Revolving Credit Lenders of the Aggregate
<PAGE>
U.S. $ Revolving Credit Exposure or the Aggregate Multi-Currency Revolving
Credit Exposure, as the case may be, and (B) if the Aggregate U.S. $ Revolving
Credit Exposure would exceed the Total U.S. $ Revolving Credit Commitment or the
Aggregate Multi-Currency Revolving Credit Exposure would exceed the Total
Multi-Currency Revolving Credit Commitment after giving effect to such
reduction, then ASI shall, on the date of such reduction, cause the Borrowers to
repay or prepay U.S. $ Revolving Credit Borrowings, Multi-Currency Revolving
Credit Borrowings or Swingline Loans (or a combination thereof) having an
Assigned Dollar Value in an amount sufficient to eliminate such excess.
(d) Prepayment Events. In the event and on each occasion after the
Effective Date that a Prepayment Event occurs, ASI shall, on each date of
receipt by Holding, ASI or any Subsidiary of Net Cash Proceeds in respect of
such Prepayment Event, cause the Borrowers to prepay Term Borrowings and reduce
the Periodic Access Loan Commitments, pro rata in accordance with the respective
outstanding principal amounts of the Term Borrowings and the amount of the Total
Periodic Access Commitment, in an aggregate amount equal to 100% of such Net
Cash Proceeds; provided, however, that (A) no such prepayment of Term Borrowings
and reduction of Periodic Access Loan Commitments shall be required in an
aggregate amount less than $10,000,000 (or the Alternative Currency Equivalent)
and any receipt of Net Cash Proceeds that would result in prepayments and
reductions in a lesser amount shall cumulate until the aggregate amount of Net
Cash Proceeds received and not yet applied equals or exceeds $10,000,000 (or the
Alternative Currency Equivalent), at which time such prepayments and reductions
shall be made, (B) to the extent that Net Cash Proceeds received in respect of a
Prepayment Event are received by an Excluded Subsidiary, no prepayment of Term
Borrowings or reduction of Periodic Access Loan Commitments shall be required
hereunder in respect of such Net Cash Proceeds unless and until such Excluded
Subsidiary ceases to be an Excluded Subsidiary (provided that ASI shall exercise
commercially reasonable efforts to arrange for such Net Cash Proceeds to be paid
to ASI or another Subsidiary that is not an Excluded Subsidiary if such payment
can be made without commercially unreasonable consequences) and (C) to the
extent that any prepayment required by this paragraph would require prepayment
of any LIBOR Borrowing or Alternative Currency Borrowing on a day other than the
last day of the Interest Period with respect thereto and would result in the
incurrence of costs pursuant to Section 2.14, then, unless an Event of Default
has occurred and is continuing, the amount that would be required to be applied
to prepay such Borrowing may, at ASI's option, be paid on such day to the
Collateral Agent and held as cash Collateral securing such Borrowing until the
last day of the Interest Period with respect to such Borrowing, at which time
such amount shall be applied to prepay such Borrowing (provided that, in
determining which Borrowings of a Borrower are to be prepaid within a Credit
Facility, prepayments required by this paragraph shall be allocated by ASI in
such manner as will minimize the necessity and duration of any deferral of
prepayment pursuant to this clause (C)). ASI shall deliver to the Administrative
Agent at or prior to the time of each prepayment pursuant to this paragraph a
certificate executed by a Financial Officer of ASI setting forth in reasonable
detail the calculation of the amount of such prepayment.
(e) Excess Cash Flow. As promptly as practicable but in any event within
120 days after the end of each fiscal year of ASI, commencing with the fiscal
year ending December 31, 1995, ASI shall cause the Borrowers to prepay Term
Borrowings and reduce Periodic Access Loan Commitments, pro rata in accordance
with the respective outstanding principal amounts of the Term Borrowings and the
amount of the Total Periodic Access Commitment, in an aggregate amount equal to
the Excess Cash Prepayment Amount with respect to such fiscal year, unless the
ratio calculated pursuant to Section 6.10 for the period ending on the last day
of such fiscal year is less than 3.35:1. ASI shall deliver to the Administrative
Agent at or prior to the time of each prepayment pursuant to this paragraph a
certificate executed by a Financial Officer of ASI setting forth in reasonable
detail the calculation of the amount of such prepayment.
(f) Prepayments Generally. ASI (or the applicable Borrower) shall deliver
to the Administrative Agent a notice of each prepayment to be made under this
Section, which shall be delivered as provided in paragraph (a) above in the case
of any prepayment thereunder and otherwise by 11:00 a.m., New York City time
three Business Days prior to prepayment (unless the circumstances giving rise to
such prepayment render it impractical to provide notice at such time, in which
case such notice shall be given as promptly as practical and in any event by the
time prepayment is made). Each notice of prepayment shall specify the prepayment
date and, by Credit Facility, the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the applicable
<PAGE>
Borrower or Borrowers to prepay such Borrowing (or portion thereof) by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.11 shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment. Any
prepayment required under any paragraph of this Section shall be in addition to,
and shall not be applied to reduce the amount of, any prepayment required under
any other paragraph of this Section.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein (but subject to paragraph
(e) below), if after the date of this Agreement any change in applicable law or
regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to any Lender (or any lending office) or any Issuing Bank of the
principal of or interest on any LIBOR Loan or Alternative Currency Loan made by
such Lender or any Fees or other amounts payable hereunder in respect of LIBOR
Loans or Alternative Currency Loans (other than changes in respect of Excluded
Taxes or Taxes), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender (or any lending office) or any
Issuing Bank (except, in respect of LIBOR Loans or Swingline Loans that are
Alternative Currency Loans, any such reserve requirement which is reflected in
the Adjusted LIBO Rate or the Swingline Base Rate, respectively), or shall
impose on such Lender, such Issuing Bank, the London interbank market or any
other relevant market any other condition affecting this Agreement or any LIBOR
Loan or Alternative Currency Loan made by such Lender or any Letter of Credit or
participation therein, and the result of any of the foregoing shall be to
increase the net cost to such Lender or Issuing Bank of making or maintaining
any LIBOR Loan or Alternative Currency Loan or of issuing or maintaining any
Letter of Credit or purchasing or maintaining a participation therein, or to
reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder or under the Notes (whether of principal, interest or otherwise)
by an amount deemed by such Lender or Issuing Bank to be material, then ASI will
pay (or cause the Borrowers to pay) to such Lender or Issuing Bank, as the case
may be, within 15 days after receipt by ASI of a certificate referred to in
paragraph (c) below, such additional amount or amounts as will compensate such
Lender or Issuing Bank, as the case may be, for such additional net costs
incurred or reduction suffered.
(b) Subject to paragraph (e) below, if any Lender or Issuing Bank shall
have determined that the adoption after the date hereof of, or any change after
the date hereof in, any law, rule, regulation or guideline regarding capital
adequacy, or any change after the date hereof in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender or,
if applicable, its Affiliate) or any Issuing Bank or any Lender's or Issuing
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or Issuing Bank's capital or on the capital of such Lender's or
Issuing Bank's holding company, if any, as a consequence of this Agreement or
the Loans made or participations in Letters of Credit purchased by such Lender
pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant
hereto to a level below that which such Lender or Issuing Bank or such Lender's
or Issuing Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Bank's holding company
with respect to capital adequacy) by an amount deemed by such Lender or Issuing
Bank to be material, then from time to time ASI shall pay (or cause the
Borrowers to pay), within 15 days after receipt by ASI of a certificate referred
to in paragraph (c) below, to such Lender or Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or Issuing
Bank, as the case may be, or such Lender's or Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth such amount
or amounts as shall be necessary to compensate such Lender or Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) above,
as the case may be, shall be delivered to ASI and shall be conclusive absent
manifest error. Any such certificate shall be accompanied by a notice indicating
the circumstances or event that resulted in such claim for compensation. ASI
shall (or shall cause the
<PAGE>
responsible Borrower to) pay to each Lender or Issuing Bank that delivers any
such certificate the amount shown as due on such certificate within 15 days
after the receipt of the same by ASI.
(d) Failure on the part of any Lender or any Issuing Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of its right to demand compensation with respect to such
period or any other period; provided, however, that failure on the part of any
Lender or Issuing Bank to demand compensation within 180 days after the end of
its fiscal year shall constitute a waiver of its right to demand any such
compensation with respect to such fiscal year; provided further, however, that
if any change in applicable law or in the interpretation or application thereof
or any request or directive giving rise to any claim for compensation under this
Section is retroactive in effect, then such Lender or Issuing Bank shall be
entitled to claim compensation hereunder for the period of such retroactive
effect prior to and including the date of adoption or promulgation thereof, for
purposes of the foregoing proviso, as though the claims for compensation with
respect to such period of retroactive effect arose on such date. The protection
of this Section shall be available to each Lender and Issuing Bank regardless of
any possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.
(e) Notwithstanding any other provision of this Section 2.12, no Lender or
Issuing Bank shall be entitled to compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
under this Section unless such Lender or Issuing Bank, as the case may be,
represents to ASI that at the time it is the policy or general practice of such
Lender or Issuing Bank to demand such compensation for comparable costs or
reductions, if any, in similar circumstances, if any, under comparable
provisions of other credit agreements for comparable customers.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other provision
herein, if, after the date hereof, (i) any change in any law or regulation or in
the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any LIBOR Loan or Alternative Currency Loan or (ii) there
shall have occurred any change in national or international financial, political
or economic conditions (including the imposition of or any change in exchange
controls) or currency exchange rates which would make it impracticable for any
Lender to make Loans denominated in any Alternative Currency or to any Borrower,
then, by written notice to ASI and to the Administrative Agent:
(i) such Lender may declare that LIBOR Loans or Alternative Currency Loans
(in the affected currency or currencies or to the affected Borrower), as the
case may be, will not thereafter (for the duration of such unlawfulness or
impracticability) be made by such Lender hereunder, whereupon any request for a
LIBOR Borrowing or Alternative Currency Borrowing (in the affected currency or
currencies or to the affected Borrower), as the case may be, shall, as to such
Lender only, be deemed a request for an ABR Loan or a Loan denominated in
Dollars, as the case may be, unless such declaration shall be subsequently
withdrawn (or, if a Loan to the requesting Borrower cannot be made for the
reasons specified above, such request shall be deemed to have been withdrawn);
and
(ii) such Lender may require that all outstanding LIBOR Loans or
Alternative Currency Loans (in the affected currency or currencies), as the case
may be, made by it be converted to ABR Loans or Loans denominated in Dollars, as
the case may be, in which event all such LIBOR Loans or Alternative Currency
Loans (in the affected currency or currencies), as the case may be, shall be
automatically converted to ABR Loans or Loans denominated in Dollars, as the
case may be, as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal which would otherwise have been
applied to repay the LIBOR Loans or Alternative Currency Loans, as the case may
be, that would have been made by such Lender or the converted LIBOR Loans or
Alternative Currency Loans, as the case may be, of such Lender shall instead be
applied to repay the ABR Loans or Loans denominated in Dollars, as the case may
be, made by such Lender in lieu of, or resulting from the conversion of, such
LIBOR Loans or Alternative Currency Loans, as the case may be.
<PAGE>
(b) For purposes of this Section 2.13, a notice to ASI by any Lender shall
be effective as to each such Loan, if lawful, on the last day of the Interest
Period currently applicable to such Loan; in all other cases such notice shall
be effective on the date of receipt by ASI.
SECTION 2.14. Indemnity. Each Borrower shall indemnify each Lender against
any loss or reasonable expense which such Lender may sustain or incur as a
consequence of (a) any failure by such Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by such Borrower to borrow or to convert or continue any Loan hereunder
after irrevocable notice of such borrowing, conversion or continuation has been
given or deemed to have been given pursuant to Section 2.03 or 2.04, (c) any
payment, prepayment, assignment pursuant to Section 2.22(a) or (b), exchange
pursuant to Article IX or conversion of a LIBOR Loan or Alternative Currency
Loan or any portion thereof required by any other provision of this Agreement or
otherwise made or deemed made on a date other than the last day of the Interest
Period applicable thereto, (d) any default in payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise) or (e)
the occurrence of any Event of Default, including, in each such case, any loss
or reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a LIBOR Loan or Alternative Currency
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, assigned, converted,
exchanged or not borrowed, converted or continued (based on the Adjusted LIBO
Rate) for the period from the date of such payment, prepayment, assignment,
conversion, exchange or failure to borrow, convert or continue to the last day
of the Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the Interest Period for such Loan which would have
commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid, assigned, converted, exchanged or not
borrowed, converted or continued for such period or Interest Period, as the case
may be. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section and evidencing a
loss suffered by such Lender of such amount or amounts shall be delivered to ASI
and shall be conclusive absent manifest error. ASI shall (or shall cause the
responsible Borrower to) pay to each Lender that delivers any such certificate
the amount shown as due on such certificate within 15 days after the receipt of
the same by ASI.
SECTION 2.15. Pro Rata Treatment. Except as required under Sections 2.13,
2.19(e) and 2.20, (a) each Borrowing and each reduction of Commitments shall be
allocated pro rata among the Lenders in accordance with their respective
applicable Commitments, (b) each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans comprising any Borrowing, and
each payment of the Commitment Fees in respect of any Credit Facility shall be
allocated pro rata among the Lenders in accordance with the respective amounts
due and payable to the Lenders by the Borrower that shall have made such payment
and (c) each conversion or continuation of Loans included in any Borrowing shall
be allocated pro rata among the Lenders in accordance with the respective
principal amounts of their outstanding Loans comprising such Borrowing. Each
Lender agrees that in computing such Lender's portion of any Borrowing to be
made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole Dollar
(or comparable unit of any applicable Alternative Currency) amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Credit Party, or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans or L/C
Disbursement or undrawn L/C's as a result of which the unpaid principal portion
of its Related Claims shall be proportionately less than the unpaid principal
portion of the Related Claims of any other Related Lender, it shall be deemed
simultaneously to have purchased from such other Related Lender at face value,
and shall promptly pay to such other Related Lender the purchase price for, a
participation in the Related Claims of such other Related Lender, so that the
aggregate unpaid principal amount of the Related Claims and participations in
Related Claims held by
<PAGE>
each Related Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Related Claims then outstanding as the principal amount
of its Related Claims prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Related Claims
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.16 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrowers expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in a Loan or L/C Disbursement deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the applicable Borrower to such Lender by
reason thereof as fully as if such Lender had made a Loan directly to such
Borrower in the amount of such participation.
SECTION 2.17. Payments. (a) Each Borrower shall make each payment
(including principal of, and interest on, the Loans and L/C Disbursements, and
any Fees and other amounts) due and payable by it hereunder and under any other
Credit Document, not later than 12:00 (noon), local time at the place of
payment, on the date when due, in immediately available funds. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the
applicable Issuing Bank and (ii) principal of and interest on Swingline Loans,
which shall be paid directly to the Swingline Lender except as otherwise
provided in Section 2.20(e)) shall be made to such account of the Administrative
Agent as the Administrative Agent shall specify by notice to the applicable
Borrower and, unless and until otherwise specified, all such payments payable in
Dollars shall be made to the Administrative Agent at its office at 270 Park
Avenue, New York, New York. Each such payment (other than principal of and
interest on Alternative Currency Loans and L/C Disbursements denominated in an
Alternative Currency, which shall be made in the applicable Alternative
Currency) shall be made in Dollars. Any payments received by the Administrative
Agent after the specified time shall be deemed to have been received on the next
Business Day. The Administrative Agent shall distribute to the applicable
Lenders or Issuing Bank, as the case may be, all payments received by the
Administrative Agent for their respective accounts, promptly following receipt
thereof.
(b) Whenever any payment shall become due, or otherwise would occur, on a
day that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or Fees, if applicable.
SECTION 2.18. Taxes. (a) All payments hereunder and under any other Credit
Document (including payments on account of principal, interest and Fees) shall
be made by the applicable Borrower without deduction or withholding for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed by any jurisdiction other than (i) Excluded Taxes
and (ii) other taxes, duties, levies, imposts, assessments or other governmental
charges imposed by the United States or any political subdivision thereof or
therein (except for withholding taxes on payments (other than Fees) with respect
to Obligations of Borrowers that are Foreign Subsidiaries and withholding taxes
on payments with respect to Obligations of Borrowers that are not Foreign
Subsidiaries acquired by a Lender as a result of the CAM Exchange), but only to
the extent such other taxes, duties, levies, imposts, assessments or other
governmental charges do not result from a change subsequent to the date hereof
in applicable law, treaty or regulations or in the interpretation or
administration thereof by any authority charged with the interpretation or
administration thereof or any court of competent jurisdiction ("Taxes"). For
purposes of this Section 2.18 and Section 2.12, ratification of the Convention
between the Government of the United States of America and the Government of the
French Republic signed on August 31, 1994, the Convention between the Government
of the United States and the Government of Sweden signed on September 1, 1994
and the Protocol signed on August 31, 1994 amending the Convention between the
United States of America and the Commonwealth of Canada which became effective
August 16, 1984, in each case substantially in the same form as it was signed
shall not be considered a change after the date hereof. If any Borrower is
required by law to make any deduction or withholding of any Taxes from any
payment due hereunder or under any other Credit Document, then the amount
payable will be increased to such amount which, after deduction from such
increased amount of all such Taxes required to be withheld or deducted
therefrom, will be equal to the amount that would otherwise have been received
hereunder had no such deduction or withholding been required.
<PAGE>
(b) The applicable Borrower shall pay any and all present or future stamp
or documentary taxes, or other excise or property taxes, charges or similar
levies, which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Credit Document excluding, with respect to any Lender, excise or property
taxes, charges or similar levies: (i) imposed by the jurisdiction under the laws
of which such Lender is organized, or in which its principal executive office is
located, or by any country within which any such jurisdiction is located or any
political subdivision thereof; (ii) imposed by the jurisdiction in which the
applicable lending office or branch of such Lender or any Affiliate thereof that
makes or holds a Loan is located, or in which its principal executive office is
located, or under the laws of which it is organized or by any country within
which any such jurisdiction is located or any political subdivision thereof; or
(iii) imposed by any other jurisdiction, but only to the extent such taxes,
charges or levies would not have been imposed but for any other connection
between the jurisdiction imposing such tax, charge or levy and such Lender or
such applicable lending office or branch or Affiliate (other than a connection
arising from this Agreement or any transaction contemplated thereby) ("Other
Taxes").
(c) If any Borrower makes any payment hereunder in respect of which it is
required by law to make any deduction or withholding of any Taxes or Other
Taxes, it shall pay the full amount to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment under
applicable law and shall deliver to the applicable Lenders as soon as
practicable (but, in no event, later than 30 days) after it has made such
payment to the applicable authority a receipt issued by such authority or a
statement of the Borrower confirming the payment to such authority of all
amounts so required to be deducted or withheld from such payment.
(d) Without prejudice to the provisions of paragraph (a) above, if any
Lender, or the Administrative Agent on its behalf, is required to make any
payment on account of Taxes or Other Taxes on or in relation to any sum received
or receivable hereunder or under any other Credit Document by such Lender, or
the Administrative Agent on its behalf, or any liability for Taxes or Other
Taxes in respect of any such payment is imposed, levied or assessed against any
Lender or the Administrative Agent on its behalf (regardless of whether such
Taxes or Other Taxes were correctly or legally asserted by the relevant taxation
or other authority), the applicable Borrower will, within 30 days after demand
therefor, indemnify such person against such tax payment or liability, together
with any interest, penalties and expenses (including reasonable counsel fees and
expenses) payable or incurred in connection therewith, including any Tax or
Other Tax of any Lender arising by virtue of payments under this paragraph (d),
computed in a manner consistent with paragraph (a) above. A certificate as to
the amount of such payment by such Lender, or the Administrative Agent on its
behalf, absent manifest error, shall be final, conclusive and binding for all
purposes.
(e) (i) Each Lender that is organized under the laws of any jurisdiction
other than the United States or any State thereof (including the District of
Columbia) and that will be receiving payments from ASI or American Standard
Credit Inc. under the Credit Documents agrees to furnish to ASI and the
Administrative Agent, prior to the Effective Date (or, if such Lender becomes a
Lender after the Effective Date, then at or prior to the time such Lender
becomes a Lender), two copies of either U.S. Internal Revenue Service Form 4224,
U.S. Internal Revenue Service Form 1001 or any successor forms thereto (wherein
such Lender claims entitlement to complete exemption from or reduced rate of
U.S. federal withholding tax on payments by ASI or American Standard Credit
Inc., as the case may be, under the Credit Documents) as well as any
certification, documentation or other evidence as may be required by the U.S.
Internal Revenue Service to establish the legal entitlement of a Lender to
complete exemption from or reduced rate of U.S. federal withholding tax on
payments by ASI or American Standard Credit Inc., as the case may be under the
Credit Documents ("Required Documentation") and to provide to ASI and the
Administrative Agent a new Form 4224, Form 1001 or any successor forms thereto
and any Required Documentation if any previously delivered form or Required
Documentation is found to be incomplete or incorrect in any material respect or
upon the obsolescence of any previously delivered form or Required
Documentation. In the case of any such Lender exempt from withholding tax on
interest payments under the Credit Documents pursuant to Section 871(h) or
881(c) of the Code, such Lender may provide U.S. Internal Revenue Service Form
W-8 or any successor form thereto (instead of Form 1001) with respect to such
interest payments as well as any Required Documentation and agrees to provide a
new Form W-8 or any successor form thereto and any Required Documentation if any
previously delivered form or Required Documentation is found to be incomplete or
incorrect in any material respect or upon the obsolescence of
<PAGE>
any previously delivered form or Required Documentation. A Lender providing Form
1001 or Form W-8 or any successor form thereto with respect to interest payments
agrees to furnish a separate Form 1001 or a successor form thereto with respect
to fees and other payments under the Credit Documents.
(ii) Each Lender that is managed and controlled from or incorporated under
the laws of any jurisdiction other than the United Kingdom and which is making a
Loan to the U.K. Borrower through a lending branch or lending office located
outside the United Kingdom agrees to furnish to the taxing authority of the
country in which such Lender is resident for tax purposes on or prior to the
Effective Date (or, if such Lender becomes a Lender after the Effective Date,
then at or prior to the time such Lender becomes a Lender) (with a copy to the
Administrative Agent and the U.K. Borrower), for certification and forwarding by
such taxing authority to the appropriate United Kingdom taxing authority, two
copies of Form "Claim on Behalf of a United States Domestic Corporation to
Relief from United Kingdom Income Tax on Interest and Royalties Arising in the
United Kingdom" (or its counterpart for jurisdictions other than the United
States), or any successor forms (wherein such Lender claims entitlement to
complete exemption from or reduced rate of United Kingdom withholding tax on
interest paid by such Borrower hereunder) and to provide successor forms thereto
if any previously delivered form is found to be incomplete or incorrect in any
material respect or upon the obsolescence of any previously delivered form. Each
Lender that is managed and controlled from and incorporated under the laws of
the United Kingdom or that is making all of its Loans to the U.K. Borrower
through a lending branch or lending office within the United Kingdom agrees to
furnish to each of the U.K. Borrower and the Administrative Agent on or prior to
the Effective Date (or if such Lender becomes a Lender after the Effective Date,
then at or prior to the time such Lender becomes a Lender) a certificate
substantially in the form of Exhibit H (and if any previously delivered
certificate subsequently should become untrue, promptly (A) to notify the U.K.
Borrower and the Administrative Agent of the change and (B) to furnish the forms
described in the first sentence of this Section 2.18(e)(ii). As soon as
practicable after the Effective Date, and from time to time as circumstances
change, ASI shall furnish the Administrative Agent with a list of Borrowers
resident for United Kingdom tax purposes within the United Kingdom. In the case
of any Lender that makes a Loan denominated in a currency other than Sterling to
the U.K. Borrower and with respect to such Loan qualifies for the exemption
under Section 349(3)(a) Income and Corporation Taxes Act 1988 from withholding
tax on interest payable in the United Kingdom on an advance from a bank carrying
on a bona fide banking business in the United Kingdom, that Lender agrees to
take into account as a United Kingdom trading receipt the interest due to it on
such Loan.
(iii) Upon the written request of any Borrower, each Lender promptly will
provide to such Borrower and to the Administrative Agent, or file with the
relevant taxing authority (with a copy to the Administrative Agent) such form,
certification or similar documentation (each duly completed, accurate and
signed) as is required by the relevant jurisdiction in order to obtain an
exemption from, or reduced rate of Taxes or Other Taxes to which such Lender or
the Administrative Agent is entitled pursuant to an applicable tax treaty or the
law of the relevant jurisdiction; provided, however, such Lender will not be
required to (i) disclose information which in its reasonable judgment it deems
confidential or proprietary or (ii) incur a disadvantage if such disadvantage
would, in its reasonable judgment, be substantial in comparison to the cost of
the Borrower under this Section 2.18 of such Lender's failure to provide such
form, certification or similar documentation.
(iv) A Lender shall be required to furnish a form under this paragraph (e)
only if it is entitled to claim an exemption from or a reduced rate of
withholding under applicable law. A Lender that is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law, promptly
upon written request of the applicable Borrower, shall so inform the applicable
Borrower in writing.
(f) The Borrowers shall not be required to pay any increased amount on
account of Taxes or Other Taxes pursuant to this Section 2.18 or Section 2.12(a)
to any Lender or to the Administrative Agent to the extent such Taxes or Other
Taxes would not have been payable but for the failure of the Lender to furnish
the forms in accordance with paragraph (e) (accurately completed in all material
respects).
(g) If a Lender shall become aware that it is eligible for a refund in
respect of Taxes or Other Taxes actually paid by a Borrower pursuant to this
Section 2.18, it shall promptly notify the
<PAGE>
applicable Borrower of the availability of such refund and shall, within 30 days
after receipt of a request by such Borrower, apply for such refund or shall
furnish to such Borrower such forms, duly completed, as will enable such
Borrower to claim such refund on its own behalf. Such Borrower shall reimburse
such Lender for all reasonable costs incurred by the applicable Lender in
applying for or seeking such refund. If any Lender receives a refund in respect
of any Taxes or Other Taxes paid by a Borrower pursuant to this Section 2.18, it
shall repay such refund within 30 days after receipt, to the applicable Borrower
(to the extent of amounts not in excess of the amounts actually paid by such
Borrower and not previously reimbursed in respect of the Taxes or Other Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses of
such Lender not previously reimbursed and without interest (other than interest
received from the relevant taxing authority with respect to such refund);
provided, however, that such Borrower, upon the request of the relevant Lender,
agrees to return to such Lender the amount paid to it by the applicable Lender
with respect to such refund (plus applicable penalties, interest or other
charges) in the event such Lender is required to repay such refund. In addition,
the Agent and each Lender shall reasonably cooperate with any Borrower, at such
Borrower's expense, in contesting any Taxes or Other Taxes that such Borrower is
required to bear under this Section 2.18 or under Section 2.12 and shall pay to
such Borrower, on a net after-tax basis, any refunds obtained as a result of
such contest, together with any interest thereon, within 30 days after receipt.
(h) Nothing contained in this Section 2.18 shall require any Lender to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential).
(i) (i) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.18 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder, and the payment in full of all other amounts due to the Lenders or
the Administrative Agent under this Agreement or any other Credit Document.
(ii) For purposes of this Section 2.18, a "Lender" shall also include an
Issuing Bank, the Administrative Agent, the Collateral Agent, subject to Section
10.04(j) and the last sentence of Section 10.04(c), any Affiliate of a Lender
that makes or holds a Loan and, subject to Section 10.04(f)(iii), the holder of
a participation in a Loan.
(j) Notwithstanding any other provisions of this Section 2.18, no Lender
shall be entitled to compensation for any Other Taxes (except for stamp or
documentary taxes or similar levies) unless such Lender represents to ASI that
at the time it is the policy or general practice of such Lender to demand such
compensation for comparable Other Taxes, if any, in similar circumstances, if
any, under comparable provisions of other credit agreements for comparable
customers.
SECTION 2.19. Letters of Credit. (a) General. Any Borrower may request the
issuance of a Letter of Credit, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, appropriately completed,
for the account of such Borrower, at any time and from time to time while the
U.S. $ Revolving Credit Commitments or Multi-Currency Revolving Credit
Commitments, as the case may be, remain in effect. This Section shall not be
construed to impose an obligation upon any Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of its Issuing Bank
Agreement. On the Effective Date, the Scheduled Letters of Credit shall be
deemed to have been issued on such date under the respective Credit Facilities
set forth in Schedule 2.19 for all purposes hereof, notwithstanding the
requirements of the following paragraphs of this Section.
(b) Notice of Issuance; Certain Conditions. In order to request the issuance of
a Letter of Credit, a Borrower shall hand deliver or telecopy to an Issuing Bank
and the Administrative Agent (reasonably in advance of the requested date of
issuance) a notice specifying the name of the Borrower for whose account such
Letter of Credit is to be issued (the "Account Party"), the date of issuance,
the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) below), whether such Letter of Credit is to be a U.S. $ Letter of
Credit or a Multi-Currency Letter of Credit, the amount of such Letter of Credit
and, in the case of a Multi-Currency Letter of Credit, the currency in which it
is to be denominated, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit.
Following receipt of such notice and prior to the issuance of the requested
Letter of Credit, the Administrative Agent shall notify ASI, the Account Party
and the applicable Issuing Bank of the amount of the Aggregate U.S. $ Revolving
Credit Exposure and the
<PAGE>
Aggregate Multi-Currency Revolving Credit Exposure after giving effect to (i)
the issuance of such Letter of Credit, (ii) the issuance or expiration of any
other Letter of Credit that is to be issued or will expire prior to the
requested date of issuance of such Letter of Credit and (iii) the borrowing or
repayment of any U.S. $ Revolving Credit Loans, Multi-Currency Revolving Credit
Loans or Swingline Loans that (based upon notices delivered to the
Administrative Agent by the Borrowers) are to be borrowed or repaid prior to the
requested date of issuance of such Letter of Credit. Promptly after the issuance
of or amendment to any Letter of Credit, the Administrative Agent shall notify
Lenders with the relevant Commitments of such issuance or amendment, shall
provide a copy of the issued Letter of Credit or amendment, as the case may be,
and in the case of Multi-Currency Letters of Credit, shall indicate the Spot
Exchange Rate to be used in determining the Assigned Dollar Value thereof. A
Letter of Credit shall be issued only if, and upon issuance of each Letter of
Credit the Account Party in respect thereof shall be deemed to represent and
warrant that, after giving effect to such issuance (A) the Aggregate L/C
Exposure shall not exceed $200,000,000, (B) the Aggregate U.S. $ L/C Exposure
shall not exceed $200,000,000, (C) the Aggregate Multi-Currency L/C Exposure
shall not exceed $25,000,000, (D) the Aggregate U.S. $ Revolving Credit Exposure
shall not exceed the Total U.S. $ Revolving Credit Commitment and (E) the
Aggregate Multi- Currency Revolving Credit Exposure shall not exceed the Total
Multi-Currency Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the U.S.
$ Revolving Credit Maturity Date or the Multi-Currency Revolving Credit Maturity
Date, as applicable, unless such Letter of Credit expires by its terms on an
earlier date; provided that a Letter of Credit shall not be issued that would
result in the Aggregate U.S. $ L/C Exposure exceeding the Total U.S. $ Revolving
Credit Commitment or the Aggregate Multi-Currency L/C Exposure exceeding the
Total Multi-Currency Revolving Credit Commitment. Compliance with the foregoing
proviso shall be determined based upon the assumption that each Letter of Credit
remains outstanding and undrawn in accordance with its terms until its
expiration date (taking into account any rights of renewal or extension that do
not require written notice by or consent of the applicable Issuing Bank, in its
sole discretion, in order to effect such renewal or extension).
(d) Participations. By the issuance of a Letter of Credit (including the
issuance of the Scheduled Letters of Credit deemed to occur on the Effective
Date) and without any further action on the part of the applicable Issuing Bank
or the U.S. $ Revolving Credit Lenders or the Multi-Currency Revolving Credit
Lenders, as applicable, the applicable Issuing Bank hereby grants to each U.S. $
Revolving Credit Lender or Multi-Currency Revolving Credit Lender, as
applicable, and each U.S. $ Revolving Credit Lender or Multi-Currency Revolving
Credit Lender, as applicable, hereby acquires from the applicable Issuing Bank,
a participation in such Letter of Credit equal to such U.S. $ Revolving Credit
Lender's or Multi-Currency Revolving Credit Lender's Applicable Percentage of
the aggregate amount available to be drawn under such Letter of Credit,
effective upon the issuance of such Letter of Credit. In consideration and in
furtherance of the foregoing, each U.S. $ Revolving Credit Lender or
Multi-Currency Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, such U.S. $ Revolving Credit Lender's or Multi-Currency Revolving
Credit Lender's Applicable Percentage of each L/C Disbursement made by such
Issuing Bank and not reimbursed by the applicable Account Party (or another
Credit Party pursuant to its obligations under any other Credit Document)
forthwith on the date due as provided in paragraph (e) below. Each U.S. $
Revolving Credit Lender and Multi-Currency Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the applicable Account Party shall pay to the
Administrative Agent, on or prior to the date that is five Business Days after
the date of such L/C Disbursement, an amount equal to such L/C Disbursement. If
such Account Party shall fail to pay any amount required to be paid under this
paragraph on or prior to the date that is five Business Days after the date on
which an L/C Disbursement is made, then (i) such unpaid amount shall bear
interest, for each day from and including the date that is five Business Days
after the date of such L/C Disbursement, to but excluding the date of payment,
at a rate
<PAGE>
per annum equal to the interest rate applicable to overdue Loans pursuant to
Section 2.08, (ii) the Administrative Agent shall notify the applicable Issuing
Bank and the U.S. $ Revolving Credit Lenders or the Multi-Currency Revolving
Credit Lenders, as the case may be, thereof, (iii) each such Revolving Credit
Lender shall comply with its obligation under paragraph (d) above by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(d)
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Credit Lenders), and (iv) the Administrative Agent shall promptly pay to the
applicable Issuing Bank amounts so received by it from the applicable Revolving
Credit Lenders. The Administrative Agent shall promptly pay to the applicable
Issuing Bank any amounts received by it from any Account Party pursuant to this
paragraph prior to the time that any Revolving Credit Lender makes any payment
pursuant to paragraph (d) above; any such amounts received by the Administrative
Agent thereafter shall be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the
applicable Issuing Bank, as their interests may appear.
(f) Obligations Absolute. Each Account Party's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or any
Credit Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any
of the provisions of any Letter of Credit or any Credit Document;
(iii) the existence of any claim, setoff, defense or other right that the
applicable Account Party, any other Credit Party, any Subsidiary or other
Affiliate thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, any Issuing Bank, the Administrative
Agent or any Lender or any other person, whether in connection with this
Agreement, any other Credit Document or any other related or unrelated agreement
or transaction;
(iv) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(v) payment by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of any Issuing
Bank, the Lenders, the Administrative Agent or any other person or any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of such Account Party's obligations hereunder.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the applicable Account Party of such demand for payment
and whether such Issuing Bank has made or will make an L/C Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve such Account Party of its obligation to reimburse such Issuing
Bank and the Revolving Credit Lenders with respect to any such L/C Disbursement.
The Administrative Agent shall promptly give each U.S. $ Revolving Credit Lender
or Multi-Currency Revolving Credit Lender, as applicable, notice thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, then, unless the applicable Account Party shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of such Issuing Bank, for
<PAGE>
each day from and including the date of such L/C Disbursement, to but excluding
the earlier of the date of payment or the date on which interest shall commence
to accrue thereon as provided in paragraph (e) above, at the rate per annum that
would apply to such amount if such amount were a Swingline Loan and such Issuing
Bank were the Swingline Lender. If such amount is denominated in an Alternative
Currency, then the Swingline Margin shall be determined by such Issuing Bank
pursuant to its Issuing Bank Agreement.
(i) Liability of Issuing Banks. Without limiting the generality of
paragraph (f) above, it is expressly understood and agreed that the absolute and
unconditional obligation of each Account Party hereunder to reimburse L/C
Disbursements will not be excused by the gross negligence or wilful misconduct
of any Issuing Bank. However, the foregoing shall not be construed to excuse any
Issuing Bank from liability to an Account Party to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Account Parties to the extent permitted by applicable law)
suffered by such Account Party that are caused by such Issuing Bank's gross
negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof; it
is understood that each Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary and, in making any
payment under any Letter of Credit (i) an Issuing Bank's exclusive reliance on
the documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of an Issuing Bank.
SECTION 2.20. Swingline Loans. (a) Swingline Commitment. The Swingline
Lender agrees to make loans to the Borrowers at any time and from time to time
on and after the Effective Date and until the earlier of the Multi-Currency
Revolving Credit Maturity Date and the termination of the Swingline Commitment
in accordance with the terms hereof, in an aggregate principal amount at any
time outstanding that will not result in (i) the Swingline Exposure exceeding
the Swingline Commitment, (ii) the portion of the Swingline Exposure
attributable to Swingline Loans made to Borrowers other than ASI exceeding
$25,000,000, or (iii) the Aggregate Multi-Currency Revolving Credit Exposure,
after giving effect to any Swingline Loan, exceeding the Total Multi-Currency
Revolving Credit Commitment. The Swingline Commitment may be terminated or
reduced from time to time as provided herein. Within the foregoing limits, the
Borrowers may borrow, pay or prepay and reborrow Swingline Loans hereunder, on
and after the Effective Date and prior to the Multi-Currency Revolving Credit
Maturity Date, subject to the terms, conditions and limitations set forth
herein.
(b) Swingline Loans. The procedures for requesting and making Swingline
Loans and the currency or currencies in which any Swingline Loan may be
denominated and any limitations as to minimum principal amount of borrowings are
specified in the Swingline Loan Agreement; provided, however, that (i) any
Borrower that requests a Swingline Loan shall, at or prior to the time of such
request, notify the Administrative Agent by telecopy, or by telephone (confirmed
by telecopy), and such Swingline Loan shall not be made if the Administrative
Agent advises the applicable Borrower that the conditions specified in clauses
(i), (ii) or (iii) of paragraph (a) above would not be satisfied, and (ii) all
Swingline Loans shall be made on the terms specified in this Section 2.20, which
shall supersede any contrary provisions in the Swingline Loan Agreement.
(c) Denomination, Maturity and Prepayment. Each Swingline Loan shall be
denominated in Dollars or, subject to Section 2.13, in an Alternative Currency.
Each of the Borrowers agrees to pay the outstanding principal amount of each
Swingline Loan on the last day of the Interest Period with respect to such
Swingline Loan. The Borrowers shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving written or
telecopy notice (or notice by telephone promptly confirmed by written or
telecopy notice) to the Swingline Lender and to the Administrative Agent before
12:00 (noon), local time on the date of prepayment at the addresses for
<PAGE>
notices specified in the Swingline Loan Agreement. All principal payments of
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of payment. Each Borrower shall, at the request of the
Swingline Lender, duly execute and deliver to such Lender a Swingline Note,
dated the Effective Date, in substantially the form attached hereto as Exhibit
B-5, with the blanks appropriately filled, payable to the order of the Swingline
Lender (or, if the Swingline Lender shall so request, to the Swingline Lender
and registered assigns).
(d) Interest. Each Swingline Loan denominated in Dollars shall be an ABR
Loan and, subject to the provisions of Section 2.08, shall bear interest as
provided in Section 2.07(b). Subject to the provisions of Section 2.08, each
Swingline Loan that is an Alternative Currency Loan shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Swingline Base Rate with respect to such
Swingline Loan plus the applicable Swingline Margin. Interest on each Swingline
Loan shall be payable on the Interest Payment Date with respect thereto. The
Swingline Lender shall notify the applicable Borrower and the Administrative
Agent of the Swingline Base Rate and Swingline Margin applicable to Swingline
Lender's Swingline Loans that are Alternative Currency Loans promptly following
each determination thereof.
(e) Participations. If a Borrower does not fully repay a Swingline Loan on
the last day of the Interest Period with respect thereto, the Swingline Lender
shall promptly notify the Administrative Agent thereof (by telecopy or by
telephone, confirmed in writing), and the Administrative Agent shall promptly
notify each Multi-Currency Revolving Credit Lender thereof (by telecopy or by
telephone, confirmed in writing) and of its Applicable Percentage of such
Swingline Loan. Upon such notice but without any further action, the Swingline
Lender hereby agrees to grant to each Multi-Currency Revolving Credit Lender,
and each Multi-Currency Revolving Credit Lender hereby agrees to acquire from
the Swingline Lender, a participation in such defaulted Swingline Loan equal to
such Multi-Currency Revolving Credit Lender's Applicable Percentage of the
aggregate principal amount of such defaulted Swingline Loan. In consideration
and in furtherance of the foregoing, each Multi-Currency Revolving Credit Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Multi-Currency Revolving Credit Lender's Applicable Percentage of
each Swingline Loan that is not repaid on the last day of the Interest Period
with respect thereto, in the same currency in which such Loan is denominated.
Each Multi-Currency Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Multi-Currency
Revolving Credit Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in
Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(d)
shall apply, mutatis mutandis, to the payment obligations of the Multi-Currency
Revolving Credit Lenders) and the Administrative Agent shall promptly pay to the
Swingline Lender amounts so received by it from the Multi-Currency Revolving
Credit Lenders. The Administrative Agent shall notify the applicable Borrower
and ASI of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender for ratable
distribution to the Lenders participating in such Swingline Loan. Any amounts
received by the Swingline Lender from a Borrower (or other Credit Party) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Multi-Currency
Revolving Credit Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the applicable Borrower of its default in respect of the payment
thereof.
(f) Termination and Reduction of Swingline Commitments. Upon written or
telecopy notice to the Swingline Lender and to the Administrative Agent, ASI (on
behalf of any Borrower or Borrowers) may at any time permanently terminate, or
from time to time in part permanently reduce, the unused portions of the
Swingline Commitment.
<PAGE>
SECTION 2.21. Borrower Assignment of Term Loans. It is understood that
Borrowers in respect of Term Borrowings may desire from time to time to assign
their obligations in respect of Term Borrowings to other Borrowers that will
assume such obligations, pursuant to an assignment that will result in the
assigning Borrower being relieved of its obligations as a Borrower in respect of
the Borrowings so assigned (but not any obligations in respect of such
Borrowings that arise under other Credit Documents in such assigning Borrower's
capacity as a Guarantor or otherwise). The Lenders in respect of the Term Loans
agree to permit such assignments, subject to the prior satisfaction of the
following conditions in respect of each such assignment:
(a) each such assignment shall be made pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent;
(b) such assignments shall be permitted only during a Periodic Access
Availability Period and all such assignments made within a Periodic Access
Availability Period shall be consummated on a single date;
(c) each party to which an assignment is made shall be a Borrower, and each
Borrower to which an assignment is made shall evidence its assumption of the
Borrowings assigned to it by execution of and delivery to the Administrative
Agent of an instrument acknowledging its assumption of the assigned Term Loan of
such Lender in writing;
(d) each such assignment shall be considered, for all purposes of this
Agreement, to be a Term Borrowing by the Borrower to which the assignment is
made, and accordingly such assignment shall be subject to all the terms and
conditions hereof applicable to a Borrowing to be made on the date of such
assignment; and
(e) the Administrative Agent may, in its sole discretion, require, as an
additional condition to any such assignment, the delivery of certificates and
legal opinions as to the assignment and the assignee comparable to those
required to be delivered as a condition to the Term Borrowings made on the
Effective Date, including a letter from the management of ASI as to the solvency
of the assignee after giving effect to such assignment.
SECTION 2.22. Certain Lender Obligations. (a) In the event (i) any Lender
delivers a certificate requesting compensation pursuant to Section 2.12, (ii)
any Lender delivers a notice described in Section 2.13 or (iii) a Borrower is
required to pay any additional amount to any Lender, or any Governmental
Authority on account of any Lender, pursuant to Section 2.18, ASI may, at its
sole expense and effort, require such Lender to transfer and assign, without
recourse (in accordance with Section 10.04), all of its interests, rights and
obligations under this Agreement to an assignee which shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (A) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (B) ASI shall have received the written consent of the
Administrative Agent (and of the Issuing Banks and the Swingline Lender, if such
Lender is a Revolving Credit Lender), which consent shall not unreasonably be
withheld, and (C) ASI or the applicable Borrower or such assignee shall have
paid to the assigning Lender in immediately available funds an amount equal to
the sum of the principal of and interest accrued to the date of such payment on
the outstanding Loans and participations in L/C Disbursements and Swingline
Loans of such Lender, plus all Fees and other amounts accrued for the account of
such Lender hereunder (including any amounts under Section 2.12, Section 2.14
and Section 2.18); provided further that if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's claim for
compensation under Section 2.12 or notice under Section 2.13 or the amounts paid
pursuant to Section 2.18, as the case may be, cease to cause such Lender to
suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in
Section 2.13, or cease to result in amounts being payable under Section 2.18, as
the case may be (including as a result of any action taken by such Lender
pursuant to paragraph (b) below), or if such Lender shall waive its right to
claim further compensation under Section 2.12 in respect of such circumstances
or event or shall withdraw its notice under Section 2.13 or shall waive its
right to further payments under Section 2.18 in respect of such circumstances or
event, as the case may be, then such Lender shall not thereafter be required to
make any such transfer and assignment hereunder.
<PAGE>
(b) If (i) any Lender shall request compensation under Section 2.12, (ii)
any Lender delivers a notice described in Section 2.13 or (iii) a Borrower is
required to pay any additional amount to any Lender, or any Governmental
Authority on account of any Lender, pursuant to Section 2.18, then, to the
extent any of the foregoing shall not have resulted from an assignment of Term
Loans pursuant to Section 2.21, such Lender shall exercise reasonable efforts
(which shall not require such Lender to incur an unreimbursed loss or
unreimbursed cost or expense or otherwise take any action inconsistent with its
internal policies or suffer any disadvantage or burden deemed by it to be
significant) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such assignment
would reduce its claims for compensation under Section 2.12 or enable it to
withdraw its notice pursuant to Section 2.13 or would reduce amounts payable
pursuant to Section 2.18, as the case may be, in the future. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such assignment, delegation and transfer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holding and the Borrowers represents and warrants (but, in the case
of representations and warranties relating to Credit Parties and their
Subsidiaries, only as to itself and its Subsidiaries, it being understood that
Holding and ASI make all representations and warranties as to all parties) to
each of the Lenders that:
SECTION 3.01. Corporate Status. Each Credit Party and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and has the corporate or
partnership, as the case may be, power and authority to own its property and
assets and to transact the business in which it is engaged and proposes to
engage, and (ii) has duly qualified and is authorized to do business and is in
good standing in all jurisdictions where the failure to do so could reasonably
be anticipated to result in a Materially Adverse Effect. Schedule 3.01 sets
forth as of the date hereof, and will set forth as of the Effective Date, a
true, complete and correct list of each Subsidiary of ASI indicating (i) its
jurisdiction of incorporation, (ii) its ownership (by holder and percentage
interest), (iii) its business and primary geographic scope of operation and (iv)
whether such Subsidiary is (x) a Foreign Subsidiary or (y) a Restricted
Subsidiary.
SECTION 3.02. Corporate Power and Authority. Each Credit Party has the
power and authority to execute, deliver and carry out the terms and provisions
of each of the Credit Documents to which it is, or is to be, a party. Each
Credit Party has taken all necessary action to authorize the execution, delivery
and performance of each of the Credit Documents to which it is, or is to be, a
party. Each Credit Document, when executed and delivered by a Credit Party, does
and will continue to constitute the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity or, in the case of Credit
Parties that are Foreign Subsidiaries, applicable laws disclosed in legal
opinions delivered pursuant to Section 4.02 of the 1993 Credit Agreement or of
this Agreement, as applicable.
SECTION 3.03. No Violation. None of the Transactions (a) will contravene in
any respect material to the rights or interests of the Lenders any provision of
any law, statute, rule, regulation, order, writ, injunction or decree of any
Governmental Authority, (b) will conflict in any respect material to the rights
or interests of the Lenders or be inconsistent with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute (with
notice or lapse of time or both) a default under, or result in a required
prepayment of, or (other than as contemplated by the Security Documents or the
Senior Indentures) result in the creation or imposition of (or the obligation to
create or impose), any Lien upon any of the property or assets of any Credit
Party or any of its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, agreement or other instrument to which any Credit Party
is a party or by which it or any of its property or assets is bound or to which
it may be subject or (c) will violate any provision of the Organizational
Documents of any Credit Party or any of its Subsidiaries. No exchange
<PAGE>
control law or regulation materially restricts any Borrower from complying with
its obligations in respect of any Alternative Currency Loan or Letter of Credit.
SECTION 3.04. Use of Proceeds; Margin Regulations. (a) The proceeds of the
Term Loans and Periodic Access Loans and the Revolving Credit Loans made on the
Effective Date, will be applied (a) to the payments described in Section 1.06 of
the Assignment and Amendment Agreement and (b) to pay fees and expenses in
connection with certain of the Transactions as heretofore disclosed to the
Lenders. The proceeds of the Revolving Credit Loans made after the Effective
Date, will be used for general corporate purposes of the Borrowers and their
Subsidiaries. The Letters of Credit issued hereunder will be used to support
payment obligations incurred in the ordinary course of business by the Borrowers
and their Subsidiaries.
(b) Neither any Borrower nor any of their respective Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock. No
Letter of Credit and no part of the proceeds of any Loan will be used directly
or indirectly for any purpose which entails a violation of, or which is
inconsistent with, Regulation G, U or X.
SECTION 3.05. Approvals. None of the execution, delivery and performance by
each Credit Party of the Credit Documents to which it is, or is to be, a party,
the borrowings hereunder and the application of the proceeds of the Loans, the
Offering, the issuance of the Letters of Credit, the continuation of the
security interests in the Collateral pursuant to the Security Documents and the
other transactions contemplated hereby (all the foregoing being collectively
called the "Transactions") do or will require any registration with, consent or
waiver or approval of, or notice to, or other action to, with or by, any
Governmental Authority or other person except (i) as disclosed in Schedule 3.05,
(ii) filings required for the perfection and continuation of security interests
granted pursuant to the Security Documents and filings with the SEC and other
federal, state and foreign regulatory agencies in connection with the Offering
and (iii) filings the failure to make which could not reasonably be anticipated
to result in a Materially Adverse Effect.
SECTION 3.06. Investment Company Act, etc. No Credit Party is or will be,
after giving effect to the Transactions, (a) an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended or (b) subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act or any
foreign, federal, state or local statute or regulation limiting its ability to
incur indebtedness for money borrowed or guarantee such indebtedness as
contemplated hereby or by any other Credit Document.
SECTION 3.07. True and Complete Disclosure. All written information
(excluding the Projected Financial Statements and any other projections)
heretofore or contemporaneously furnished by or on behalf of any Credit Party
(including all information contained in any of the Credit Documents) is, and all
other such information hereafter furnished, including all information contained
in any of the Credit Documents, by or on behalf of any Credit Party to or on
behalf of any Lender will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state anything necessary to make such information not misleading at
such time. There is nothing of which any Borrower is aware which would be
reasonably likely to have a Materially Adverse Effect which has not been
disclosed to the Lenders in writing in connection with or pursuant to the terms
of this Agreement.
SECTION 3.08. Financial Condition; Financial Statements; Projections. (a)
No Credit Party is entering into the arrangements contemplated hereby and by the
other Credit Documents, or intends to make any transfer or incur any obligations
hereunder or thereunder with actual intent to hinder, delay or defraud either
present or future creditors. On and as of the Effective Date, on a pro forma
basis after giving effect to the Transactions contemplated to occur on or in
connection with the Effective Date, (w) no final judgments against any Credit
Party arising out of any pending or threatened litigation will be rendered at a
time when, or in an amount such that, such Credit Party will be unable to
satisfy such judgments promptly in accordance with their terms (taking into
account the maximum reasonable amount of such judgments in any such actions and
the earliest reasonable time at which such judgments might be rendered); the
cash available to each Credit Party, after taking into account all other
anticipated uses of
<PAGE>
the cash of such Credit Party, is anticipated to be sufficient to pay all such
judgments promptly in accordance with their terms; (x) the sum of the present
fair salable value of the assets of each Credit Party will exceed the probable
liability of such Credit Party and its Subsidiaries on their debts; (y) no
Credit Party intends to, or believes that it will, incur debts beyond its
ability to pay such debts as such debts mature (taking into account the timing
and amounts of cash to be received by such Credit Party from any source, and of
amounts to be payable on or in respect of debts of such Credit Party and the
amounts referred to in clause (w)); the cash available to each Credit Party,
after taking into account all other anticipated uses of the cash of such Credit
Party, is anticipated to be sufficient to pay all such amounts on or in respect
of debts of such Credit Party, when such amounts are required to be paid; and
(z) each Credit Party will have sufficient capital with which to conduct its
present and proposed business and the property of such Credit Party does not
constitute unreasonably small capital with which to conduct its present or
proposed business. For purposes of this Section 3.08(a) "debt" means any
liability on a claim, and "claim" means (i) right of payment whether or not such
a right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured; or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. On the date of each Borrowing, issuance of a
Letter of Credit or assignment of Term Loans pursuant to Section 2.21 (and after
giving effect to all Borrowings, Letters of Credit or assignments as of such
date), the representations set forth in this Section 3.08(a) shall be true and
correct with respect to each Borrower which is incurring Loans or on behalf of
which a Letter of Credit is being issued or to whom an assignment of a Loan is
being made on such date and any Credit Party which is a guarantor with respect
to any or all of such Borrowings or Letters of Credit or such assigned Loan.
With respect to clauses (x) and (z), with respect to Credit Parties other than
Borrowers, such representations and warranties are made to the best of the
knowledge of the Borrowers except that such representations and warranties are
made without qualification to the extent that the untruth or inaccuracies of any
such representation or warranty could reasonably be anticipated to result in a
Materially Adverse Effect.
(b) There has heretofore been delivered to the Lenders the Information
Memorandum containing the audited balance sheet of ASI on a consolidated basis
as of December 31, 1993 and the related consolidated statements of income and
cash flows for the year then ended accompanied by an unqualified opinion of
Ernst & Young. Such financial statements fairly present, in conformity with
GAAP, the consolidated financial position of ASI and its Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year. Except as set forth in Schedule 3.08(b), neither ASI nor any of its
Subsidiaries had as of the date of the foregoing financial statements any
material Guarantee, contingent liability or liability for taxes, long-term lease
or unusual forward or long-term commitment which is not reflected in the
foregoing financial statements or the notes thereto to the extent required by
GAAP. Since December 31, 1993, there has not occurred any material adverse
change in the business, operations, condition (financial or otherwise), assets
or prospects of (i) ASI and its Subsidiaries taken as a whole or (ii) the German
Borrower and its Subsidiaries taken as a whole.
(c) There has heretofore been delivered to the Lenders the Information
Memorandum containing pro forma consolidated income projections for ASI and its
Subsidiaries, pro forma consolidated balance sheet projections for ASI and its
Subsidiaries and pro forma consolidated cash flow projections for ASI and its
Subsidiaries, all for the fiscal years ending December 31, 1994 through December
31, 1997, inclusive ("Projected Financial Statements"), which give effect to the
Transactions. The assumptions made in preparing the Projected Financial
Statements are reasonable, as of the date of such projections and as of the
Effective Date (except that such assumptions do not include the $20,000,000
termination fee paid to Kelso in connection with the termination of the
Consulting Agreement between ASI and Kelso), and all material assumptions with
respect to the Projected Financial Statements are set forth therein. The
Projected Financial Statements provide, as of the date of such projections and
as of the Effective Date, reasonable estimates of future performance, subject to
the uncertainty and approximation inherent in any projections and the
qualifications set forth therein. Any projected financial information regarding
ASI and any of its Subsidiaries furnished to any of the Lenders after the
Effective Date will be prepared based upon reasonable assumptions, as of the
date of preparation, and will provide, as of the date thereof, reasonable
estimates of future performance, subject to the uncertainty and approximation
inherent in any projections and any other qualifications set forth therein.
<PAGE>
(d) Schedule 3.08(d) sets forth (i) the outstanding Indebtedness and
preferred stock of ASI and its Subsidiaries as of December 31, 1994, (ii) each
Lien securing any such Indebtedness (excluding Liens to be released or assigned
to the Collateral Agent on the Effective Date), (iii) a list identifying each
instrument or agreement governing such Indebtedness and the maximum amount of
debt governed by each such agreement and (iv) each line of credit available to
ASI or any Subsidiary thereof as of the Effective Date (excluding the
Commitments). A true, complete and correct copy of each material instrument or
agreement referred to in clause (iii) above (including all amendments,
supplements, modifications or waivers thereto) has been delivered to the
Administrative Agent and a true, complete and correct copy of all other
instruments or agreements referred to in such clause (including all amendments,
supplements, modifications and waivers thereto) as may be reasonably requested
by the Administrative Agent will be delivered to it; and, in each case, the
Administrative Agent shall be authorized to deliver copies thereof, at ASI's
expense, to any Lender who requests copies thereof.
(e) Neither ASI nor any Subsidiary thereof has sold any material assets or
properties out of the ordinary course of business during the period from
December 31, 1993, to the date hereof except as permitted by Section 6.02.
SECTION 3.09. Security Interests. Each of the Security Documents creates
(or will create, as the case may be), as security for the obligations purported
to be secured thereby, subject to the provisions hereof and thereof, either (a)
a valid and enforceable perfected security interest in and Lien on all of the
Collateral subject to such Security Document (or comparable interest under
foreign law in the case of foreign Collateral), or (b) in the case of certain
property (other than Securities, Intercompany Notes and Mortgaged Properties) to
be pledged by Foreign Subsidiaries, a floating charge, fixed charge or security
interest, as specified in the applicable Security Document, in each case in
favor of the Collateral Agent for the benefit of the Lenders, subject to no
other Liens except as may be expressly permitted in each applicable Security
Document or this Agreement, and prior to all other Liens except Liens described
in Schedule 3.12(a) as being prior to the Liens granted under the Security
Documents. The pledgor or assignor, as the case may be, under each Security
Document has good title to all Collateral subject thereto (other than any Real
Property subject to a Mortgage) free and clear of all Liens other than Permitted
Encumbrances and such additional Liens as may be specifically permitted by the
Security Document to which such Collateral is subject or by this Agreement. No
filings or recordings are required in order to perfect the security interests
created under the Security Documents except for filings or recordings listed on
Schedule 3.09(a), all of which shall have been made on or prior to the Effective
Date except as otherwise expressly provided in Schedule 3.09(a); provided,
however, that, with respect to any Mortgaged Property, no failure to record any
Mortgage shall be deemed a breach of this Section if the Title Company has
issued or committed to issue in respect of such Mortgaged Property a policy of
title insurance complying with the provisions of Section 4.02(h). Except as set
forth in Schedule 3.09(b), there are no agreements or understandings between or
among stockholders or equity holders of any of the Credit Parties that might
adversely affect the benefits intended to be conferred on the Collateral Agent
by the Security Documents or the prompt realization of such benefits. Each
Subsidiary of ASI or any of its Subsidiaries that is organized under the laws of
any state, territory or possession of the United States and that is not a party
to the Domestic Security Agreement or the Domestic Securities Pledge Agreement
is a Non-Material Subsidiary; provided, however, that intercompany receivables
and Investments in Subsidiaries shall be excluded from consolidated total assets
for purposes of the definition of Non-Material Subsidiary as used in this
sentence.
SECTION 3.10. Tax Returns and Payments. Each of the Credit Parties and each
of its Subsidiaries has filed all federal income tax returns and all other
material tax returns and reports, domestic and foreign, required to be filed by
it and has paid all taxes shown as due on such returns or due pursuant to any
assessment received by it, other than those not yet delinquent and those that
are being contested by proper proceedings conducted in good faith and with due
diligence for which it maintains adequate reserves in accordance with GAAP. Each
of the Credit Parties has paid, or has provided adequate reserves in accordance
with GAAP for the payment of, all taxes, domestic and foreign, applicable for
all prior fiscal years and for the current fiscal year to the date hereof.
Except as heretofore disclosed to the Lenders in writing, there is no proposed
tax assessment against any Credit Party or any of its Subsidiaries which would,
if the assessment were made, have a Materially Adverse Effect.
<PAGE>
SECTION 3.11. Compliance with ERISA. (a) As of the date hereof and as of
the Effective Date (i) each Borrower and each of its ERISA Affiliates are in
compliance in all material respects with the applicable provisions of ERISA with
respect to the Pension Plans; (ii) no Reportable Event has occurred as to which
any Borrower or any ERISA Affiliate was required to file a report with the PBGC,
and the present value of all benefit liabilities under all Pension Plans (based
on those assumptions used to fund such Pension Plans) did not, as of the last
annual valuation date applicable thereto, exceed by more than $100,000,000 the
value of the assets of all Pension Plans; (iii) neither any Borrower nor any
ERISA Affiliate has incurred any Withdrawal Liability that materially adversely
affects the financial condition of any Borrower and its ERISA Affiliates taken
as a whole; (iv) neither any Borrower nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated, where such
reorganization or termination has resulted or can reasonably be expected to
result in an increase in the contributions required to be made to such Plan that
would materially and adversely affect the financial condition of any Borrower
and its ERISA Affiliates taken as a whole; (v) no proceedings have been
instituted to terminate any Pension Plan; (vi) each Foreign Pension Plan is in
compliance in all material respects with the applicable laws of any foreign
jurisdictions; and (vii) no Foreign Pension Plan has any unfunded liabilities
which, individually or in the aggregate, would be likely to result in a
Materially Adverse Effect.
(b) With respect to any pension, retirement or other deferred compensation
plan maintained by a Foreign Subsidiary which is not a Foreign Pension Plan,
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Foreign Subsidiary maintains its principal place of business or in
which such plan is maintained. The aggregate unfunded liabilities, after giving
effect to any reserves for such liabilities, with respect to such plans is not
likely to result in a Materially Adverse Effect.
SECTION 3.12. Title to Properties; Liens. (a) Each Credit Party and each of
its Subsidiaries have good title (or a comparable interest with respect to
foreign Real Property) with respect to its Real Properties (subject to any
Mortgages and, as of the date hereof, the Effective Date and thereafter, free
and clear of all Liens other than the Liens described in Schedule 3.12(a),
Permitted Encumbrances and Liens expressly permitted under Section 6.03) and
good and sufficient title (subject as aforesaid and to Liens granted under any
applicable Security Document) to all of its other respective properties and
assets reflected in the most recent consolidated balance sheet referred to in
Section 3.08(b) or in the most recent financial statements delivered pursuant to
Section 5.01, as the case may be, in each case except for (i) assets disposed of
since the date of such consolidated balance sheet and prior to the date of this
Agreement in the ordinary course of business, (ii) assets acquired or disposed
of since the date of such consolidated balance sheet in accordance with this
Agreement, (iii) assets held under Capital Leases and (iv) defects that in the
aggregate do not result in a Materially Adverse Effect. Except as set forth
above and except as permitted hereby and by Section 3.09 and by the other Credit
Documents, all such properties and assets are free and clear of Liens.
(b) Schedule 3.12(b) sets forth, as of the date hereof and the Effective
Date, a true, complete and correct list of (i) all Real Property of ASI and its
Subsidiaries located in the United States of America, Canada, France, the United
Kingdom, the Netherlands or Germany and having a book value in excess of
$100,000 or the equivalent in one or more other currencies; (ii) the location of
each such Real Property; and (iii) the Borrowers' good faith estimate of the
value of each such Real Property that is significant. Each of the Mortgaged
Properties is and as of the Effective Date shall be subject to no Liens other
than the Mortgages, the Liens identified on Schedule 3.12(a) and Permitted
Encumbrances. Each of the other Real Properties is subject to no Liens other
than Liens permitted by Section 6.03. Schedule 3.12(b) indicates which of the
Real Properties is a manufacturing or processing plant or warehouse owned by ASI
or any Restricted Subsidiary that constitutes a "Principal Property" as defined
in the Senior Indentures.
(c) Each of the Real Properties located in an area in the United States
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards has adequate insurance covering such hazard.
<PAGE>
SECTION 3.13. Patents, Trademarks, etc. ASI and its Subsidiaries own
directly, or are entitled to use by license or otherwise, all patents,
trademarks, trade names, copyrights, licenses, technology, know-how, processes
and service marks and rights with respect to any of the foregoing material to
ASI's or such Subsidiary's business as currently conducted. The use of such
patents, trademarks, service marks, trade names, copyrights, licenses,
technology, know-how, processes and rights with respect to the foregoing by ASI
and its Subsidiaries does not, to the best of the Borrowers' knowledge, infringe
on the rights of any person, except for such uses as would not give rise to any
material liability on the part of ASI or its Subsidiaries. The consummation of
the Transactions does not require any consents to be obtained with respect to
such patents, trademarks, trade names, copyrights, technology, know-how,
processes, service marks or its license to use, as the case may be, any of such
patents, trademarks, service marks, trade names, copyrights, licenses,
technology, know-how, processes or service marks or rights with respect to the
foregoing by ASI and its Subsidiaries, except for the consents listed on
Schedule 3.13, which shall have been obtained on or prior to the Effective Date.
SECTION 3.14. Environmental Matters. (a) There are no chemical substances,
pollutants, contaminants or hazardous or toxic substances, materials or wastes,
whether solid, gaseous or liquid in nature, at any premises owned, operated,
controlled or used by any Credit Party or its Subsidiaries where such could
reasonably be expected to result in a Materially Adverse Effect and none of the
Credit Parties or their Subsidiaries nor, to the best knowledge of the Credit
Parties and their Subsidiaries, any of their respective predecessors in interest
have manufactured, processed, distributed, used, treated, stored, disposed of,
transported or handled any such substances, where such could reasonably be
anticipated to result in a Materially Adverse Effect. There is no ambient air,
surface water, groundwater or land contamination within, under or relating to
any Real Property or, to the best knowledge of the Credit Parties and their
Subsidiaries, other location geologically or hydrologically connected to such
properties and none of such properties has been used by any of the Credit
Parties or their Subsidiaries, or, to the best knowledge of any Credit Party, by
any of their predecessors in interest, for the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of any
substance described in the preceding sentence where such could reasonably be
anticipated to result in a Materially Adverse Effect.
(b) Except as set forth on Schedule 3.14(b), none of the Credit Parties or
any of its Subsidiaries has any obligations or liabilities, matured or not
matured, absolute or contingent, assessed or unassessed, no claims have been
made against it during the past five years, and no presently outstanding
citations or notices have been issued against it, in each case imposed or based
upon any provision of any domestic, foreign, federal, state or local law, rule
or regulation or common law pertaining to exploration and mining operations,
reclamation, health or safety or environmental protection where such
obligations, liabilities, claims, citations or notices, individually or in the
aggregate, could reasonably be expected to result in a Materially Adverse
Effect, including any such obligations, liabilities, claims, citations or
notices relating to or arising out of or attributable, in whole or in part, to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of any substance described in paragraph (a) above by any
of the Credit Parties or their Subsidiaries, or any of their respective
employees, agents, representatives or, to the best knowledge of the Credit
Parties and their Subsidiaries, predecessors in interest in connection with or
in any way arising from or relating to any Credit Party or its Subsidiaries or
any of their respective properties; or, to the best knowledge of the Credit
Parties, relating to or arising out of or attributable, in whole or in part, to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of any such substance, by any other person at, on or under
any of the Real Properties or any other location which could reasonably be
expected to result in a Materially Adverse Effect. Except as set forth on
Schedule 3.14(b), none of the Credit Parties or any of its Subsidiaries has been
subject to any action, suit, claim or proceeding for failure to comply with, or
received notice of any potential liability under, any domestic, foreign,
federal, state or local environmental law, rule or regulation where such,
individually or in the aggregate, could reasonably be anticipated to result in a
Materially Adverse Effect.
SECTION 3.15. Litigation; Adverse Facts. Except as set forth on Schedule
3.15 hereto, there is no action, suit, proceeding or investigation by any
Governmental Authority or other person pending or known by any Credit Party to
be threatened with respect to any Credit Party or any of its Affiliates or any
of their assets or any of the Credit Documents or any of the Transactions which
is reasonably likely to result in a Materially Adverse Effect and there has
occurred no development in any
<PAGE>
action, suit, proceeding, governmental investigation or arbitration previously
disclosed to the Lenders, which could reasonably be expected to result in such
an effect.
SECTION 3.16. Compliance with Laws and Charter Documents. Neither any
Credit Party nor any Subsidiary of any Credit Party is (i) in violation of its
charter or by-laws or (ii) in violation of any law, statute, rule, regulation,
order, writ, injunction or decree (including, without limitation, any exchange
control law or regulation) of any Governmental Authority applicable to any
Credit Party or any Subsidiary of any Credit Party or any of their respective
properties or assets, which violation under this clause (ii), individually or in
the aggregate, could reasonably be anticipated to result in a Materially Adverse
Effect.
SECTION 3.17. Absence of Default. (a) No Default or Event of Default has
occurred and is continuing.
(b) Except as disclosed on Schedule 3.17, as of the date hereof and the
Effective Date, neither any Credit Party nor any Subsidiary of any Credit Party
is or will be in default in any material respect in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any material mortgage, note, debenture, agreement, license or other instrument
to which it is or will be a party or by which it may be bound, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute such a default.
SECTION 3.18. Labor Matters. (i) Neither any Credit Party nor any
Subsidiary of any Credit Party is experiencing any strike, labor dispute,
slowdown or work stoppage, due to labor disagreements which could reasonably be
anticipated to result in a Materially Adverse Effect and (ii) to the best
knowledge of each of the Borrowers, there is no such strike, dispute, slowdown
or work stoppage threatened against any Credit Party or any Subsidiary of any
Credit Party.
SECTION 3.19. Benefit Plans. (a) As of December 31, 1993 (which date is the
most recent date of actuarial valuation of any Pension Plan) the actuarial value
of the assets and the value of the benefit liabilities of all Pension Plans were
as set forth on Schedule 3.19 hereto. Since December 31, 1993, there has not
occurred any material adverse change in the funded status of any Pension Plans
resulting from any plan amendment or other action taken by any Credit Party.
(b) As of December 31, 1993, the value of the benefit liabilities of all
Foreign Pension Plans, the book reserves for such plans and the actuarial value
of plan assets with respect to all Foreign Pension Plans were as set forth on
Schedule 3.19 hereto. Since December 31, 1993, there has not occurred any
material adverse change in the funded status of any Foreign Pension Plan.
(c) As of the date hereof, the aggregate unfunded expected post-retirement
benefit obligation of ASI and its Subsidiaries for retiree medical coverage,
after giving effect to any reserves for such liabilities, cannot reasonably be
anticipated to result in a Materially Adverse Effect.
SECTION 3.20. Insurance. Schedule 3.20 sets forth a true, complete and
correct description of all insurance maintained by ASI or by ASI for its
Subsidiaries as of the date hereof and the Effective Date. As of each such date,
such insurance is in full force and effect and all premiums have been duly paid.
ASI and its Subsidiaries have insurance in such amounts and covering such risks
and liabilities as are in accordance with normal industry practice.
<PAGE>
ARTICLE IV
CONDITIONS
SECTION 4.01. All Events. The obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder are subject to the
satisfaction on the date of each Borrowing (including each Borrowing of a
Swingline Loan) and on the date of each issuance of a Letter of Credit of the
following conditions:
(a) In the case of a Borrowing (other than a Swingline Loan), the
Administrative Agent shall have received a Borrowing Request as required by
Section 2.03 or, in the case of the issuance of a Letter of Credit, the
applicable Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance of such Letter of Credit as required by Section
2.19(b) or, in the case of a Borrowing of a Swingline Loan, the Swingline Lender
and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by the Swingline Loan Agreement.
(b) The representations and warranties set forth in Article III hereof
(except, in the case of a reborrowing of a Revolving Credit Borrowing that does
not increase the aggregate principal amount of Revolving Credit Loans
outstanding, the representations set forth in the last sentence of Section
3.08(b) and Section 3.15) and in each other Credit Document shall be true and
correct in all material respects on and as of such date with the same effect as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.
(c) Each of the Credit Parties shall be in compliance in all material
respects with all the terms and provisions set forth herein and in each other
Credit Document on its part to be observed or performed, and at the time of and
immediately after such Borrowing or issuance of such Letter of Credit, as the
case may be, no Event of Default or Default shall have occurred and be
continuing.
(d) In the case of a Borrowing of a Swingline Loan, the Borrower in respect
thereof shall have executed and delivered to the Swingline Lender a Swingline
Note, if requested by the Swingline Lender, complying with the provisions of
Section 2.20(c).
Each Borrowing and each issuance of a Letter of Credit shall be deemed to
constitute a representation and warranty by Holding and ASI and by the
applicable Borrower (but, in the case of a Borrower other than ASI, only as to
itself and its Subsidiaries) on the date of such Borrowing or issuance, as the
case may be, as to the matters specified in paragraphs (b) and (c) of this
Section 4.01. Without limiting the foregoing, each Borrowing and each issuance
of a Letter of Credit shall further be deemed to constitute a representation and
warranty by Holding and ASI and by the applicable Borrower that on the basis of
(i) such inquiries as one or more Financial Officers of ASI shall have deemed
necessary and (ii) advice of counsel (which may be general advice or advice as
to a particular Borrowing), the requested Borrowing is permitted under the
provisions limiting Indebtedness in each Indenture to which ASI is party.
SECTION 4.02. Effectiveness. The effectiveness of this Agreement and the
obligations of the Lenders to make Loans hereunder and of the Issuing Banks to
issue Letters of Credit hereunder are subject to the satisfaction, on a single
date on or prior to March 31, 1995, of the conditions set forth in Section III
of the Assignment and Amendment Agreement.
<PAGE>
ARTICLE V
AFFIRMATIVE COVENANTS
A. ASI covenants and agrees that on and after the Effective Date and so
long as this Agreement is in effect and until the Commitments have been
terminated and the Loans, together with interest, Fees and all other
Obligations, have been paid in full, and all Letters of Credit have been
cancelled or have expired and all amounts drawn thereunder have been reimbursed
in full, unless the Required Lenders shall otherwise give written consent, ASI
will and will cause each of its Subsidiaries to:
SECTION 5.01. Financial Statements and Other Reports. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of the financial statements required to be
delivered hereunder and consolidated financial statements in conformity with
GAAP. ASI will deliver or cause to be delivered to each of the Lenders:
(a) as soon as practicable and in any event within 50 days after the end of
each fiscal quarter of ASI, other than the last quarter in each fiscal year, (i)
the consolidated balance sheet of ASI and its Subsidiaries and (ii) the related
consolidated statements of income and retained earnings and cash flows of ASI
and its Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal quarter
setting forth, in comparative form, the corresponding amounts as of the end of
and for the corresponding periods of the previous fiscal year and the
corresponding amounts from the plan for the current fiscal year delivered
pursuant to Section 5.01(j), all in reasonable detail and accompanied by a
certificate of the chief financial officer (or, if there is no chief financial
officer, the officer functioning as the chief financial officer) and chief
accounting officer of ASI to the effect that they fairly present the financial
condition of ASI and its Subsidiaries as at the dates indicated and the results
of their operations and cash flows for the periods indicated, subject to changes
resulting from normal year-end adjustments;
(b) as soon as practicable and in any event within 105 days after the end
of each fiscal year of ASI (i) the consolidated balance sheet of ASI and its
Subsidiaries and (ii) the related consolidated statements of income and retained
earnings and cash flows of ASI and its Subsidiaries for such fiscal year setting
forth, in comparative form, the corresponding amounts as of the end of and for
the previous year and the corresponding amounts from the plan for such fiscal
year delivered pursuant to Section 5.01(j), all in reasonable detail and
accompanied by a certificate of the chief financial officer (or, if there is no
chief financial officer, the officer functioning as the chief financial officer)
and chief accounting officer of ASI to the effect that they fairly present the
financial condition of ASI and its Subsidiaries as at the dates indicated and
the results of their operations and cash flows for the periods indicated based
on ASI's normal accounting procedures and accompanied by a report thereon of
Ernst & Young or other independent certified public accountants of recognized
national standing selected by ASI and reasonably satisfactory to the
Administrative Agent which report shall be unqualified as to going concern and
scope of audit and shall state that such consolidated financial statements
present fairly the financial condition of ASI and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except for inconsistencies required by changes in GAAP and changes
approved by such accountants) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(c) together with each delivery of financial statements of ASI and its
Subsidiaries pursuant to paragraphs (a) and (b) above, commencing with the
financial statements for the period ending March 31, 1995, an Officers'
Certificate of ASI (i) stating that the signers have reviewed the terms of this
Agreement and the other Credit Documents and have made, or caused to be made
under their supervision, a review in reasonable detail of the transactions and
condition of ASI and its Subsidiaries during the accounting period covered by
such financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signers do not have
knowledge of the existence as at the date of
<PAGE>
the Officers' Certificate, of any condition or event which constitutes a Default
or an Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action ASI has
taken, is taking and proposes to take with respect thereto and (ii)
demonstrating in reasonable detail compliance (as determined in accordance with
this Agreement) during and at the end of such accounting period with the
restrictions contained in Sections 6.06, 6.10 and 6.11.
(d) together with each delivery of financial statements of ASI and its
Subsidiaries pursuant to paragraph (b) above, commencing with the financial
statements for the period ended December 31, 1995, a written statement by the
independent public accountants giving the report thereon (i) stating that their
audit examination has included a review of the terms of this Agreement and the
other Credit Documents as they relate to accounting matters, (ii) stating
whether, in connection with their audit examination, any condition or event, at
any time during or at the end of such period which constitutes a Default or an
Event of Default has come to their attention, and if such a condition or event
has come to their attention, specifying the nature and period of existence
thereof, and (iii) stating that based on their audit examination nothing has
come to their attention which causes them to believe that the information
contained in any of the certificates delivered therewith pursuant to paragraph
(c) above is not correct or that the matters set forth in the compliance
certificate delivered therewith pursuant to clause (ii) of such paragraph (c)
above for the applicable fiscal year are not stated in accordance with the terms
of this Agreement;
(e) promptly upon receipt thereof, a notice listing any financial
statements of, or reports submitted by independent public accountants to, ASI or
any of its Subsidiaries in connection with any annual, interim or special audit
of the financial statements of ASI or any of its Subsidiaries, including,
without limitation, any comment letter submitted by such accountants to the
Audit Committee of ASI's Board of Directors in connection with their annual
audit, and upon the request of any Lender, a copy of any such report or comment
letter;
(f) promptly upon their becoming available, a notice listing any financial
statements, reports, notices and proxy statements sent or made available
generally by any Borrower or any of its Subsidiaries to its public security
holders, any regular and periodic reports and all registration statements and
prospectuses filed by any of them with any securities exchange or with the SEC,
or any comparable foreign bodies, and any press releases and other statements
made available generally by any of them to the public concerning material
developments in the business of ASI or any Subsidiary, and, upon the request of
any Lender, a copy of any such document;
(g) promptly upon any executive officer of ASI obtaining knowledge (i) of
any condition or event which constitutes a Default or an Event of Default, or
becoming aware that any Lender has given any notice or taken any other action
with respect to a claimed Default or Event of Default, (ii) that any person has
given any notice to any Borrower or any Subsidiary of any Borrower or taken any
other action with respect to a claimed default or event or condition of the type
referred to in Section 7.04, (iii) of any condition or event which would be
required to be disclosed in a current report filed by any Borrower with the SEC,
on Form 8-K if such Borrower were required to file such reports under the
Securities Exchange Act of 1934, as amended, or the rules and regulations
thereunder (or any successor thereof), or (iv) of a Materially Adverse Effect,
an Officers' Certificate specifying the nature and period of existence of any
such condition or event, or specifying the notice given or action taken by such
Lender or person and the nature of such Default, Event of Default, claimed
Default, claimed Event of Default, or claimed default, event or condition
referred to in Section 7.04, or Materially Adverse Effect, and what action any
Borrower or Subsidiary thereof has taken, is taking and proposes to take with
respect thereto or, in the case of clause (iii) above, a copy of a current
report on Form 8-K filed by Holding with respect to such condition or event;
<PAGE>
(h) promptly upon any executive officer of ASI obtaining knowledge of (i)
the institution of, or threat of, any action, suit, proceeding, investigation or
arbitration by any Governmental Authority or other person against or affecting
in any material respect any Borrower or any of its Subsidiaries or any of their
assets not previously disclosed by any Borrower to the Lenders pursuant to the
terms hereof, or (ii) any material development in any such action, suit,
proceeding, investigation or arbitration (whether or not previously disclosed to
the Lenders by the Borrowers pursuant to the terms hereof), which, in any case:
(A) would be reasonably likely to result in a Materially Adverse Effect; or
(B) seeks to recover any damages or obtain relief as a result of the
refinancing consummated with the proceeds of the Loans;
notice thereof and copies of such other information as may be reasonably
available to ASI (without waiver of any applicable evidentiary privilege) to
enable the Lenders to evaluate such matters; and, in addition to the requirement
set forth in clauses (i) and (ii) of this subsection 5.01(h), Borrowers upon
request shall promptly give notice of the status of any action, suit,
proceeding, investigation or arbitration covered by a report delivered to the
Lenders pursuant to clause (i) or (ii) above to the Lenders and provide such
other information as may be reasonably available to it to enable the Lenders to
evaluate such matters;
(i) as soon as practicable and in any event within ten days after any
Borrower or any of its ERISA Affiliates knows of the occurrence of any
"prohibited transaction," within the meaning of Section 406 of ERISA or Section
4975 of the Code or similar event under other applicable foreign, federal, state
or local law, in connection with any Pension Plan or Foreign Pension Plan or any
trust created thereunder, which in any such case would have a Materially Adverse
Effect, an Officers' Certificate specifying the nature thereof, what action has
been taken, is being taken or is proposed to be taken by any Borrower or any
ERISA Affiliate of any Borrower with respect thereto, and any action taken or
threatened by the Internal Revenue Service, Department of Labor or other
Governmental Authority with respect thereto (together with copies of all
relevant notices or other communications received from such entity);
(j) as soon as practicable and in any event by the time of each delivery of
the financial statements referred to in paragraph (b) above, a consolidated
plan, prepared in accordance with ASI's normal accounting procedures (and which
will represent management's reasonable estimate of ASI's projected performance
during such periods) applied on a consistent basis, for the next succeeding
three fiscal years of ASI and its Subsidiaries, including (i) forecasted
consolidated balance sheets and consolidated statements of income, retained
earnings and cash flows of ASI and its Subsidiaries on a consolidated basis for
such periods, (ii) such information with respect to each fiscal quarter in the
first year covered by such plan, (iii) a forecast of the degree to which ASI and
its Subsidiaries will comply with Sections 6.10 and 6.11 and (iv) an explanation
and analysis of any material inconsistencies between such plan as it related to
the fiscal year most recently ended and the actual performance of ASI and its
Subsidiaries for such fiscal year;
(k) together with each delivery of financial statements of ASI and its
Subsidiaries pursuant to paragraph (b) above, an Officers' Certificate of ASI
stating, as of the date of such statements, the amount and terms of all
outstanding Intercompany Indebtedness and the obligors and obligees thereunder,
and that such Intercompany Indebtedness and any Intercompany Notes representing
such Indebtedness comply with the terms hereof and of the other Credit
Documents;
(l) with reasonable promptness, such other information and data with
respect to each Borrower or any of its respective Subsidiaries as from time to
time may be reasonably requested by any of the Lenders;
(m) to the extent requested by any Lender, as soon as practicable and in
any event within ten days of the later of such request and the making of any
such amendment or waiver, copies of amendments or waivers with respect to
Indebtedness of any Borrower or any of its respective Subsidiaries (other than
with respect to Obligations owing to the Lenders hereunder);
<PAGE>
(n) as soon as practicable and in any event within 135 days after the end
of each fiscal year of ASI, with respect to each Borrower (other than ASI), (i)
the combined balance sheet of such Borrower and its Subsidiaries and (ii) the
related combined statements of income and retained earnings and cash flows of
such Borrower and its Subsidiaries, for such fiscal year, setting forth in
comparative form the corresponding figures as of the end of the previous year,
all in reasonable detail, and accompanied by a certificate of the chief
financial officer (or, if there is no chief financial officer, the officer
functioning as the chief financial officer) and chief accounting officer of ASI
to the effect that they fairly present the combined financial condition of such
Borrower and its Subsidiaries as at the dates indicated and the combined results
of their operations and cash flows for the periods indicated, on a basis
consistent with the financial statements of ASI for such periods; and
(o) as soon as practicable and in any event within 50 days after the end of
each of the first three fiscal quarters and 105 days after the end of each
fiscal year, an Officers' Certificate (i) containing a summary of any
transactions of the sort referred to in Section 6.02(a)(i), and any mergers or
transfers of the capital stock or substantially all the assets of any Subsidiary
pursuant to Section 6.02(a)(ii), which shall have been completed during such
quarter and (ii) confirming compliance with Section 6.02 during such quarter.
SECTION 5.02. Books, Records and Inspections. Permit officers and
designated representatives of any Lender to visit and inspect any of the
properties or assets of such Borrower and any of its Subsidiaries in
whomsoever's possession, to examine the books of account of such Borrower and
any of its Subsidiaries, to make copies and take extracts therefrom and to
discuss the affairs, finances and accounts of such Borrower and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants, all upon reasonable notice and at such reasonable times
and intervals and to such reasonable extent as such Lender may desire.
SECTION 5.03. Maintenance of Property; Insurance; Good Repair. At all times
maintain in full force and effect (a) insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry practice in
the applicable area, (b) insurance as may be required to comply in all material
respects with any Prior Property Document and (c) insurance as may be required
to comply in all material respects with any Mortgage and each such insurance
policy shall name the Collateral Agent as an additional insured thereunder. Each
Borrower and each of its Subsidiaries will comply with all Prior Property
Documents. Each Borrower and each of its Subsidiaries will ensure that all
property and equipment used in or useful or necessary to its business are kept
in good repair, working order and condition (normal wear and tear excepted), and
that from time to time there are made to such property and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner customary for
companies in similar businesses. Each Borrower and each of its Subsidiaries will
maintain with financially sound and reputable insurance companies insurance on
all its properties, as described above, and will furnish to each Lender, upon
written request, information as to the insurance carried, and will not cancel
any such insurance without the consent of the Administrative Agent.
SECTION 5.04. Payment of Taxes and Claims. Pay and discharge all foreign,
federal, state or local taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which penalties attach thereto, and all claims
(including claims for labor, services, materials and supplies) which, if unpaid,
might become a lien or charge upon any assets of such Borrower or any of its
Subsidiaries; provided, that neither such Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings promptly instituted and
diligently conducted if it maintains adequate reserves with respect thereto in
accordance with GAAP.
SECTION 5.05. Consolidated Corporate Franchises. Do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights and authority, and franchises material to its respective business;
provided that any transaction permitted by Section 6.02 will not constitute a
breach of this Section 5.05.
<PAGE>
SECTION 5.06. Compliance with Statutes, etc. Comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
any Governmental Authority (including those referred to in Section 6.14) other
than those the non-compliance with which would not have a Materially Adverse
Effect.
SECTION 5.07. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA (except where noncompliance could not reasonably
be expected to result in a Materially Adverse Effect) and (b) furnish to each of
the Lenders (i) as soon as possible, and in any event within 10 days after any
Borrower or any ERISA Affiliate of any Borrower knows or has reason to know that
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of any
Borrower to the PBGC in an aggregate amount exceeding $10,000,000, a statement
of the chief financial officer of ASI setting forth details as to such
Reportable Event and the action that any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate of any Borrower is required or proposes to take
with respect thereto, together with a copy of the notice, if any, of such
Reportable Event given to the PBGC, (ii) promptly after receipt thereof, a copy
of any notice any Borrower or any ERISA Affiliate of any Borrower may receive
from the PBGC relating to the intention of the PBGC to terminate any Pension
Plan or Plans (other than a Pension Plan maintained by an ERISA Affiliate which
is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) or to appoint a trustee to administer any such Pension
Plan, (iii) within 10 days after the due date for filing with the PBGC pursuant
to Section 412(n) of the Code a notice of failure to make a required installment
or other payment with respect to a Pension Plan, a statement of the chief
financial officer of ASI setting forth details as to such failure and the action
that any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate of any
Borrower is required or proposes to take with respect thereto, together with a
copy of any such notice given to the PBGC, (iv) promptly and in any event within
10 days after receipt thereof by any Borrower or any ERISA Affiliate of any
Borrower from the sponsor of a Multiemployer Plan, a copy of each notice
received by any Borrower or any ERISA Affiliate of any Borrower concerning (A)
the imposition of Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or in reorganization,
both within the meaning of Title IV of ERISA and (v) promptly and in any event
within 10 days after any Borrower knows that any unfunded liability that is
likely to have a Materially Adverse Effect has arisen with respect to any
Foreign Pension Plan, a certificate of the chief financial officer of ASI
setting forth details as to such occurrence and such action, if any, which any
Borrower, any Subsidiary of any Borrower or any ERISA Affiliate of any Borrower
is required or proposes to take, together with any notices required or proposed
to be filed with or by any Borrower, any Subsidiary of any Borrower or any ERISA
Affiliate of any Borrower, a Governmental Authority or the plan administrator
with respect thereto. Upon the request of the Administrative Agent, the
Borrowers will deliver to the Administrative Agent a copy of the annual report
(Form 5500) of each Pension Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Lenders
pursuant to subsection (b) of this Section 5.07, copies of any notices received
by any Borrower or any Subsidiary of any Borrower or any ERISA Affiliate of any
Borrower required to be delivered to the Lenders hereunder shall be delivered to
the Lenders no later than 10 days after the date each such notice has been
received by any Borrower or any Subsidiary of any Borrower or any ERISA
Affiliate of any Borrower.
SECTION 5.08. Performance of Obligations. Perform in all material respects
all of its material obligations under the terms of each material mortgage,
indenture, security agreement, other debt instrument and contract and agreement
by which it is bound or to which it is a party or subject (except as disclosed
in Schedule 3.17).
SECTION 5.09. Waiver of Stay, Extension or Usury Laws. To the full extent
permitted by applicable law, not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, and actively resist
any attempts to claim the benefit of any stay or extension law or any usury law
or other law, which would prohibit or forgive any of them from paying all or any
portion of the principal of and/or interest on the Loans, Fees, Letters of
Credit and the Obligations, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Agreement or
the other Credit Documents; furthermore, each Borrower and Guarantor hereby
expressly waives, to the full extent permitted by applicable law, all benefit or
advantage of any such law, and covenants that they will not hinder, delay or
impede the execution of any power herein granted to the
<PAGE>
Lenders but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.10. Security Interests. (a) Perform and cause its Subsidiaries
which are Credit Parties to perform any and all acts and execute any and all
documents (including the execution, amendment or supplementation of any
financing statement and continuation statement or other statement) for filing
under the provisions of the UCC and the rules and regulations thereunder, or any
other statute, rule or regulation of any applicable foreign, federal, state or
local jurisdictions including any filings in the United States Patent and
Trademark Office or similar foreign office, which are necessary (or reasonably
requested by the Collateral Agent), from time to time, in order to grant and
maintain in favor of the Collateral Agent for the ratable benefit of the parties
named in the applicable Security Documents as beneficiaries thereof a security
interest in each item of the Collateral of the type and priority described in
the relevant Security Document, perfected to the extent contemplated by Section
3.09.
(b) Deliver or cause to be delivered to the Lenders from time to time such
other documentation, consents, authorizations, approvals and orders in form and
substance satisfactory to the Collateral Agent, as the Collateral Agent shall
deem reasonably necessary or advisable to perfect or maintain the Liens created
by the Security Documents for the benefit of the Lenders, including assets which
are required to become Collateral after the Effective Date.
SECTION 5.11. After Acquired Real Properties. Without affecting the
obligations of the Borrowers under any of the Security Documents, in the event
that any Borrower or Subsidiary at any time after the date hereof acquires any
interest in any real property in the United States of America, Canada, Germany,
France, the United Kingdom or the Netherlands, including any fee or other
ownership interest in one or more properties with an aggregate cost in excess of
$10,000,000, or any interest under one or more leases of real property for a
term in excess of ten years and involving aggregate average payments in excess
of $1,000,000 per annum (each such interest, an "After Acquired Property"), as
soon as practical provide written notice thereof to the Administrative Agent,
setting forth with specificity a description of such After Acquired Property,
the location of such After Acquired Property, any structures or improvements
thereon and an appraisal or its good-faith estimate of the current value of such
After Acquired Property ("Current Value"). The Administrative Agent shall
provide notice to ASI of whether it intends to cause such Borrower to grant and
record a Mortgage on such After Acquired Property; provided that no new Mortgage
on such After Acquired Property shall be required if the costs that would be
incurred as a result thereof are excessive in relation to the benefits that
would be conferred thereby. In such event, such Borrower or Subsidiary shall
execute and deliver to the Administrative Agent a Mortgage, together with such
of the documents or instruments described in Section 5.10 as the Administrative
Agent shall require. In no event shall the title insurance policy for any such
After Acquired Property in the United States or Canada be in an amount which is
less than the Current Value of such After Acquired Property. Such property may
be subject to a prior mortgage to the extent such prior mortgage is otherwise
permitted by Section 6.03. The Borrowers shall pay all fees and expenses,
including reasonable attorneys' fees and expenses or the reasonable allocated
costs of Administrative Agent's internal counsel, and all title insurance
charges and premiums, in connection with their obligations under this Section.
SECTION 5.12. Future Guarantors. (a) Promptly upon any person becoming a
direct or indirect Domestic Subsidiary (other than a Domestic Subsidiary that
would not be a Designated Subsidiary, or that would be a Non-Material
Subsidiary) or upon a Domestic Subsidiary that is a Designated Subsidiary no
longer meeting the criteria for being a Non-Material Subsidiary, or upon a
Domestic Subsidiary that is not a Non-Material Subsidiary becoming a Designated
Subsidiary, (i) such new or existing Domestic Subsidiary shall execute a
guarantee of all of the obligations owing to the Lenders hereunder,
substantially in the form of the Supplemental Guarantee attached hereto as
Exhibit I- 1, and enter into a Supplemental Security Agreement and a
Supplemental Securities Pledge Agreement (under which shares of any Foreign
Subsidiary pledged by ASI or any Domestic Subsidiary to secure Domestic
Obligations will not exceed 65% of such Foreign Subsidiary's voting capital) in
respect of its obligations under such Supplemental Guarantee in such forms as
the Administrative Agent may reasonably require, to the fullest extent permitted
by applicable law, and (ii) Holding and ASI shall ensure that any Subsidiary
holding shares of capital stock of such new or existing Domestic Subsidiary
shall (unless such Subsidiary is already a Subsidiary Guarantor and such shares
are pledged to the Collateral
<PAGE>
Agent under an existing Security Document) enter into a Supplemental Guarantee
substantially in the form of Exhibit I-1 and a Supplemental Securities Pledge
Agreement, in such form as the Administrative Agent may reasonably require, with
such changes in each thereof as shall be permitted by Section 10.10 or required
by this Section 5.12 (all such Supplemental Guarantees, Supplemental Security
Agreements and Supplemental Securities Pledge Agreements collectively the
"Supplemental Documents"); provided that no new Supplemental Document shall be
required, or the form of such Supplemental Document shall be modified, to the
extent required to avoid (x) any violation of applicable law or material risk
thereof or (y) any violation of the provisions of any joint venture or other
material agreement governing or binding such Domestic Subsidiary or other
Subsidiary or any material risk thereof. Any Domestic Subsidiary or other
Subsidiary that cannot execute a Supplemental Document or whose Supplemental
Document must be amended for the foregoing reasons shall promptly upon any
change of law or waiver or lapse of the applicable contractual restriction enter
into a Supplemental Document or amend the existing Supplemental Document to
comply with this Section 5.12(a) in a manner satisfactory to the Administrative
Agent. Notwithstanding any other provision of this paragraph (a), no Finance
Subsidiary or Unified Receivables Company shall be required to execute or
deliver any Supplemental Document.
(b) Promptly upon any person becoming a direct or indirect Foreign
Subsidiary (other than a Foreign Subsidiary that would not be a Designated
Subsidiary, or that would be a Non-Material Subsidiary) or upon a Foreign
Subsidiary that is a Designated Subsidiary no longer meeting the criteria for
being a Non-Material Subsidiary, or upon a Foreign Subsidiary that is not a
Non-Material Subsidiary becoming a Designated Subsidiary, (i) such new or
existing Foreign Subsidiary shall execute a guarantee of all of the obligations
(other than the Domestic Obligations) owing to the Lenders hereunder,
substantially in the form of the Supplemental Guarantee attached hereto as
Exhibit I-2 and enter into a Supplemental Security Agreement and Supplemental
Securities Pledge Agreement in such form as the Administrative Agent may
reasonably require in respect of its obligations under such Supplemental
Guarantee, (ii) Holding and ASI shall procure that any Subsidiary holding shares
of capital stock in such new or existing Foreign Subsidiary shall (unless such
Subsidiary is already a Subsidiary Guarantor and such shares are pledged to the
Collateral Agent under an existing Security Document) enter into a Supplemental
Guarantee and a Supplemental Securities Pledge Agreement in such form as the
Administrative Agent may reasonably require, which agreement shall, subject to
the proviso below, grant a perfected security interest in the Securities held by
such Subsidiary (to the fullest extent permitted by applicable law but under
which shares of any such Foreign Subsidiary pledged by a Foreign Subsidiary will
not secure Domestic Obligations and shares of any such Foreign Subsidiary
pledged by ASI or a Domestic Subsidiary will not secure Domestic Obligations to
the extent such shares exceed 65% of the issuer's voting capital) with such
changes in each thereof as are permitted by Section 10.10 or required by this
Section 5.12 (all such Supplemental Guarantees, Supplemental Securities
Agreements and Supplemental Securities Pledge Agreements being collectively
called the "Foreign Supplemental Documents"); provided that no new Foreign
Supplemental Document shall be required or the form of such Foreign Supplemental
Document shall be modified, to the extent required to avoid (v) any violation of
applicable law, (w) liability of the officers, directors or shareholders of such
Foreign Subsidiary, (x) violation of the provisions of any joint venture or
other material agreement governing or binding such Foreign Subsidiary or its
subsidiaries, (y) material risk of any of the foregoing or (z) costs which the
Administrative Agent shall determine to be excessive in relation to the benefits
that would be conferred by such Foreign Supplemental Document. Any Foreign
Subsidiary that cannot execute a Foreign Supplemental Document or whose Foreign
Supplemental Document must be modified for the foregoing reasons shall promptly
upon any change of law or waiver or lapse of the applicable contractual
restriction enter into a Foreign Supplemental Document or amend the existing
Foreign Supplemental Document to comply with this Section 5.12(b) in a manner
satisfactory to the Administrative Agent.
SECTION 5.13. Consents, Approvals, etc. The Borrowers shall obtain all
consents, waivers and approvals listed on Schedule 3.05 hereto, as soon as
possible.
<PAGE>
SECTION 5.14. German Real Estate. The German Borrower shall cause each of
Ideal Standard GmbH and WABCO GmbH (a) to continue to own all Real Property
situated in Germany currently owned by it (other than immaterial parcels no
longer used or useful in the business of the German Borrower) and (b) not to
incur, create, assume or permit to exist any liabilities in respect of which it
is an obligor except liabilities in the nature of:
(a) taxes, duties, levies, imposts, assessments or other governmental
charges;
(b) pension liabilities existing at the date hereof;
(c) Intercompany Indebtedness arising out of loans and advances permitted
by Section 6.05;
(d) other ordinary course liabilities, not related to the borrowing of
money or obtaining of credit, related to the Belgian sales office of Ideal
Standard GmbH;
(e) payables in connection with general administrative expenses, such as
lawyers and accountants; and
(f) payables in connection with capital investments in plant and equipment
leased to the German Borrower.
B. Each Borrower that is a party to this Agreement other than ASI covenants
and agrees that on and after the Effective Date, and for so long as this
Agreement is in effect and until the Commitments have been terminated and the
Loans, together with interest, Fees and all other Obligations have been paid in
full, and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise give written consent, it will not take or refrain from
taking any action as a result of which a Default would occur under any of the
covenants set forth in this Article V.
ARTICLE VI
NEGATIVE COVENANTS
A. ASI covenants and agrees that on and after the Effective Date, and for so
long as this Agreement is in effect and until the Commitments have been
terminated and the Loans, together with interest, Fees and all other Obligations
have been paid in full, and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise give written consent, neither ASI nor any
of its Subsidiaries will:
SECTION 6.01. End of Fiscal Year. In the case of ASI, change its fiscal
year end from that in effect at December 31, 1993.
SECTION 6.02. Consolidation, Merger or Sale or Purchase of Assets. (a)
Liquidate, dissolve or wind up its affairs, or merge with or into or consolidate
with any other person, or sell, lease or otherwise transfer any of its assets
(including the capital stock of any Subsidiary), or purchase, lease or otherwise
acquire any of the assets of any other person, or agree to do or suffer any of
the foregoing, except that:
(i) so long as all the Intercompany Merger and Transfer Conditions have
been satisfied,
(A) any Subsidiary (except members of the EEIG Borrower) may merge with or into,
consolidate with or liquidate into another Subsidiary;
(B) any Subsidiary (except members of the EEIG Borrower) may merge with or into,
consolidate with or liquidate into ASI;
<PAGE>
(C) ASI or any Subsidiary may transfer assets to any Designated Subsidiary;
and
(D) members of the EEIG Borrower organized under the laws of a single
jurisdiction may merge or consolidate with one another;
(ii) ASI or any Subsidiary may transfer assets to persons other than
Designated Subsidiaries (including through mergers of Non-Borrower Subsidiaries,
but not of Borrowers, with such persons or their subsidiaries and through sale
and leaseback transactions permitted under Section 6.13) so long as (1) any such
transfer or transfers for consideration in excess of $15,000,000 individually or
$50,000,000 in the aggregate during any fiscal year of ASI shall have been
approved in writing by the Required Lenders, (2) ASI or such Subsidiary, as the
case may be, shall receive as consideration for each such transfer cash and/or
Securities with a fair market value at least equal to that of the assets
transferred, (3) the aggregate amount of Securities received in connection with
all such transfers after the date hereof and held by ASI and its Subsidiaries at
any time shall not exceed $5,000,000, (4) any such cash shall be applied to
prepay Loans to the extent required by Section 2.11 and (5) to the extent any
such assets were pledged under the Security Documents to secure any Obligations,
any Securities received as consideration therefor shall be likewise pledged to
secure the same Obligations;
(iii) ASI or any Subsidiary may transfer or acquire inventory, supplies and
equipment and acquire other personal property, in each case in the ordinary
course of business, and may grant or acquire rights in or licenses to
intellectual property and related general intangibles in the ordinary course of
business;
(iv) so long as no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to any such transactions:
(A) ASI and its Domestic Subsidiaries may sell receivables as part of a
Permitted Receivables Financing if the Net Cash Proceeds therefrom are applied
as provided in Section 2.11(d);
(B) Subsidiaries of ASI in any jurisdiction may sell or discount
receivables in financing transactions customary in such jurisdiction, entered
into in the ordinary course of business and consistent with the past practices
of such Subsidiaries, to persons other than Affiliates; provided that the
aggregate book value of the receivables so sold during any fiscal year of ASI
(other than by Subsidiaries organized and doing business in France, Italy or
Spain) shall not exceed $10,000,000 or the equivalent in one or more foreign
currencies; and
(C) ASI or any Subsidiary may sell or discount without recourse to persons
other than Affiliates any note received as consideration for a sale of assets if
the Net Cash Proceeds of each such sale or discount are applied to the extent
required by Section 2.11(d);
(v) ASI or any Subsidiary may sell or dispose of assets which are obsolete
or no longer useful in any of its businesses;
(vi) ASI or any Subsidiary may liquidate Cash Equivalents and Foreign Cash
Equivalents;
(vii) ASI or any Subsidiary may donate or otherwise convey (1) its inactive
manufacturing facility in Louisville, Kentucky and (2) other property with a
book value or fair market value (whichever is less) not greater than $1,000,000
in the aggregate during any fiscal year to any governmental body or charitable
institution;
(viii) ASI or any Subsidiary may (1) make Capital Expenditures (determined
without giving effect to clause (I) of the further proviso in the definition of
"Capital Expenditures"), (2) enter into and perform its obligations under
Capital Leases and Operating Leases to the extent permitted by Sections 6.04 and
6.06, (3) make Investments permitted by Section 6.05, (4) make Restricted Junior
Payments or other dividends, distributions or share repurchases to the extent
not prohibited by Section 6.08, (5) contribute capital stock of Holding to the
ESOP, or make payments in the nature of contributions to the
<PAGE>
ESOP (or payments to Holding which are promptly contributed by Holding to the
ESOP), if such payments (x) are paid by the ESOP to Holding as the purchase
price for common stock of Holding and promptly applied by Holding to make
contributions to the capital of ASI, (y) are applied by the ESOP to repay
advances made to the ESOP by ASI or (z) are in amounts not in excess of those
required to satisfy the obligations of participating employers to make
contributions to the ESOP based on the terms of the ESOP as in effect on the
Effective Date and are applied by the ESOP to acquire common stock of Holding
from any holder thereof in an open market or other purchase for a price per
share not greater than the current market price per share at the time of such
acquisition, and (6) incur Indebtedness and Liens to the extent permitted by
Sections 6.03 and 6.04, and pay and discharge other obligations to the extent
not prohibited under other provisions of this Agreement; and
(ix) ASI or any Subsidiary may engage in the transactions described in
Schedule 6.02.
(b) Upon the sale or transfer to a person other than an Affiliate of all
capital stock of a Non-Borrower Subsidiary in accordance with the terms of this
Section, such Subsidiary shall be released from its obligations under the Credit
Documents and all Liens on the assets of such Subsidiary arising under the
Security Documents shall without further act be released. Upon the sale or
transfer to a person other than Holding, any Borrower or any Subsidiary of any
asset in accordance with the terms of this Section, all Liens on such asset
arising under the Security Documents shall without further act be released.
Except as expressly provided herein, no sale or transfer of capital stock or
assets to any Borrower or Subsidiary which shall be permitted by this Section
shall result in or require the release of any Lien on such stock or assets
existing under the Security Documents (except that (i) where any such capital
stock or assets are to be subjected at the time of transfer to the Lien of the
Security Documents to which the transferee is party, the Collateral Agent shall,
at the request of ASI, release such capital stock or assets from the Lien of any
other Security Documents to which the transferor is party, (ii) in the case of
the merger of constituent corporations whose stock is subject to the Lien of the
Security Documents, such Lien on the stock of the non-surviving corporation
shall be released upon the consummation of such merger, provided that the stock
of the surviving corporation shall be subject to the Lien of the Security
Documents, and (iii) in the case of a sale by ASI and its Domestic Subsidiaries
as part of a Permitted Receivables Financing in accordance with clause
(a)(iv)(A) above, such Lien on the receivables which are part of such Permitted
Receivables Financing shall be released upon the consummation thereof), and ASI
and the Subsidiaries shall take all such actions in connection with any such
transfer as shall be required to maintain the perfection of each such Lien.
SECTION 6.03. Liens. Directly or indirectly create, incur, assume or suffer
or permit to exist any Lien upon or with respect to any of its property or
assets, whether now owned or hereafter acquired, or assign any right to receive
income, or file or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar foreign, domestic or local
recording or notice statute, except:
(a) Permitted Encumbrances;
(b) Liens created by this Agreement or the other Credit Documents;
(c) in the case of any Real Property that is or should (pursuant to the
terms hereof) be subject to a Mortgage, such Mortgage and Liens permitted by the
terms of such Mortgage;
(d) Liens existing on the date hereof and described in Schedule 3.12(a);
provided that such Liens shall secure only those obligations which they secure
on the date hereof;
(e) Liens securing the purchase price, or Indebtedness incurred to finance
the purchase, of property, plant or equipment acquired after the date hereof to
the extent such Liens attach only to such property, plant or equipment and
improvements and accretions thereto;
(f) Liens deemed to exist in connection with sales of receivables permitted
under Section 6.02 and Capital Leases permitted under Section 6.04 (including
any related filings of financing statements);
<PAGE>
(g) customary Liens arising from or created in connection with the issuance
of letters of credit for the account of ASI or any Subsidiary permitted under
Section 6.04(h); provided that in each case such Liens apply only to the raw
materials, inventory, machinery or equipment in connection with the purchase of
which such letter of credit was issued or to the balance of any account of the
account party in respect of such letter of credit with the bank issuing such
letter of credit;
(h) Liens on assets of Subsidiaries which are not Designated Subsidiaries,
granted to secure Indebtedness of such Subsidiaries incurred after the date
hereof that is permitted by Section 6.04(i);
(i) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 6.05(a);
(j) Liens on assets at the time such assets are acquired by ASI or a
Subsidiary; provided that such Liens are not created in contemplation of such
acquisition;
(k) Liens on assets associated with sales offices purchased from third
parties by ASI or its Subsidiaries and securing Indebtedness of ASI or such
Subsidiaries issued as consideration for such purchases;
(l) Liens securing Intercompany Indebtedness to the extent such
Indebtedness and such Liens have been assigned to the Collateral Agent for the
benefit of the Lenders pursuant to the Security Documents to secure any of the
Obligations;
(m) in the case of equity Securities issued by a Joint Venture or a
Subsidiary other than a Designated Subsidiary, any call or similar right of a
third party that is also an investor in such Subsidiary either existing as of
the date hereof or created after the date hereof, but only to the extent that
such rights created after the date hereof do not relate to equity Securities
having an aggregate value in excess of $1,000,000; and, in the case of equity
Securities issued by a Joint Venture or Subsidiary, nominee, trust or directors'
qualifying shares or similar arrangements designed to satisfy requirements of
applicable local laws;
(n) Liens on assets of any person at the time such person becomes a
Subsidiary; provided that such Liens are not created in contemplation of such
person becoming a Subsidiary;
(o) Liens on cash deposits subject to Cash Pooling Arrangements and
securing liabilities of Foreign Subsidiaries participating therein and permitted
by clause (t) of Section 6.04; and
(p) other Liens securing obligations in an aggregate amount not to exceed
$1,000,000 at any time outstanding.
SECTION 6.04. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness except:
(a) the Obligations;
(b) the Indebtedness of ASI outstanding on the date hereof under the Senior
Indentures;
(c) the obligations of ASI in respect of the Subordinated Securities;
(d) Indebtedness of ASI the Net Cash Proceeds of which are used to finance
the acquisition, redemption or prepayment of Indebtedness so long as such new
Indebtedness is subordinated to the Obligations to at least the same extent, if
any, and is otherwise on terms (including maturity, interest rate, amortization
and prepayment and redemption requirements, and, in the good faith judgment of
ASI, covenants and events of default) at least as favorable to ASI and the
Lenders, as the Indebtedness being acquired, redeemed or prepaid;
<PAGE>
(e) the obligations of ASI and its Subsidiaries (including any Finance
Subsidiary) in connection with sales of receivables permitted by paragraph (A)
or (B) of Section 6.02(a)(iv), to the extent such obligations constitute
Indebtedness;
(f) Intercompany Indebtedness arising out of loans and advances permitted
under Section 6.05;
(g) obligations of ASI and its Subsidiaries in respect of Interest Rate
Protection Agreements, Currency Protection Agreements and commodity purchase or
option agreements entered into in order to manage existing or anticipated
interest rate, exchange rate or commodity price risks and not for speculative
purposes;
(h) obligations of ASI and its Subsidiaries as account parties in respect
of letters of credit obtained in the ordinary course of business in an aggregate
undrawn amount not greater than $25,000,000 at any time and in the case of
Subsidiaries which are not Credit Parties, or of ASI's Mexican and Brazilian
Subsidiaries, permitted at the time of such incurrence under clause (o) below;
(i) Indebtedness of Subsidiaries contemplated by Section 6.03(h) in an
aggregate principal amount at any time outstanding not greater than $25,000,000;
(j) Indebtedness in a principal amount not greater than $75,000,000 and
with a weighted average life to maturity at inception greater than five years
incurred to finance the construction and acquisition of the Louisiana Facility;
(k) Indebtedness incurred to finance Capital Expenditures and Capital Lease
Obligations;
(l) purchase money Indebtedness in an aggregate amount outstanding at any
time not greater than $20,000,000 incurred in connection with the acquisition by
ASI and its Subsidiaries of sales offices not constituting Capital Expenditures;
(m) Indebtedness of Subsidiaries existing at the time they become
Subsidiaries and not incurred in contemplation of their becoming Subsidiaries;
(n) Indebtedness of ASI to Holding in a principal amount not greater than
$10,000,000;
(o) other unsecured Indebtedness of Subsidiaries which are not Credit
Parties, or of ASI's Mexican and Brazilian Subsidiaries, in an aggregate
principal amount at any time outstanding which, together with the Indebtedness
referred to in clause (h) above (to the extent such Indebtedness referred to in
clause (h) above constitutes Indebtedness of Subsidiaries which are not Credit
Parties or Indebtedness of ASI's Mexican or Brazilian Subsidiaries) and clause
(p) below, is not in excess of $125,000,000; provided that, except as permitted
by clause (s) below, such Indebtedness shall not be Guaranteed by, and the
holders of such Indebtedness shall not otherwise have recourse to, ASI or any
other Credit Party (other than such Mexican and Brazilian Subsidiaries);
(p) Indebtedness of Credit Parties incurred before they became Credit
Parties (and not incurred in contemplation of their becoming Credit Parties) and
permitted at the time of such incurrence under clause (o) above;
(q) Guarantees in the nature of obligations on the part of ASI to
repurchase unused and not obsolete inventory of independent dealers and
wholesalers in connection with the Unified Receivables Program in an aggregate
amount at any time in effect not to exceed $150,000,000 during fiscal year 1995
and, during each fiscal year thereafter, 110% of the aggregate amount permitted
during the preceding fiscal year;
<PAGE>
(r) Indebtedness of Credit Parties (other than ASI's Mexican and Brazilian
Subsidiaries) existing on the date hereof and set forth on Schedule 6.04;
(s) Guarantees existing on the date hereof by Credit Parties of
Indebtedness referred to in clause (o) above, as set forth on Schedule 6.04, and
additional unsecured Indebtedness incurred by Credit Parties (other than ASI's
Mexican and Brazilian Subsidiaries) after the date hereof (including additional
unsecured Guarantees of Indebtedness referred to in clause (o) above), provided
that such Indebtedness incurred after the date hereof shall not be incurred in
an aggregate principal amount exceeding $10,000,000 during any fiscal year of
ASI;
(t) Indebtedness in connection with overdrafts under Cash Pooling
Arrangements not exceeding $15,000,000 in any jurisdiction; and
(u) obligations of ASI in respect of letters of credit supporting and/or
Guarantees of the Indebtedness of LDC Holding Companies in an aggregate amount
not greater than $50,000,000.
SECTION 6.05. Advances, Investments and Loans. Directly or indirectly make
or own any Investment in any person or enter into any Joint Venture, except for:
(a) Investments in Cash Equivalents and Foreign Cash Equivalents;
(b) Investments in receivables owing to ASI and its Subsidiaries and
payable or dischargeable in accordance with customary trade terms, and
Investments in an amount not to exceed $15,000,000 in the Unified Receivables
Company;
(c) Intercompany Indebtedness incurred in the ordinary course of business
and either consistent with the past practices of ASI and its Subsidiaries or for
cash management purposes; provided that (i) if the obligee in respect of such
Indebtedness has entered into or is required to enter into one or more Security
Documents or (if the pledge of such Indebtedness would not entail any of the
consequences referred to in the provisos to Section 5.12(a) and (b), as
applicable) a pledge of or security interest in such Indebtedness, subject to no
other Liens except as described in Schedule 3.12(a), shall have been created in
favor of the Collateral Agent for the benefit of the Lenders pursuant to such
Security Documents or other security agreements satisfactory to the Collateral
Agent; and (ii) the amount of Intercompany Indebtedness consisting of loans and
advances by Credit Parties to Subsidiaries which are not Credit Parties shall
not exceed $5,000,000 in the case of any one loan or advance or $25,000,000 in
the aggregate at any time;
(d) Investments received as consideration in connection with or arising by
virtue of any merger, consolidation, sale or other transfer of assets permitted
under Section 6.02;
(e) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(f) other Investments by ASI or any Subsidiary in Designated Subsidiaries
(or in Subsidiaries of ASI that as a result of any such Investment become
Designated Subsidiaries) that are Subsidiaries of or part of the same Borrower
Group as the investor; provided that the sum (without duplication) of (i)
Investments by Credit Parties in Subsidiaries that are not Credit Parties and
(ii) Investments by Subsidiaries the capital stock of which is pledged under the
Security Documents in Subsidiaries the capital stock of which is not so pledged
shall not exceed $2,000,000 individually or $10,000,000 during any fiscal year
of ASI;
(g) Investments in or contributions to employee benefit plans of ASI;
(h) the purchase by ASI of shares of the capital stock of Holding from the
ESOP for cash in an amount not to exceed $10,000,000; provided that such cash is
applied by the ESOP upon its receipt thereof to repay advances made to the ESOP
by ASI;
<PAGE>
(i) advances to Holding or Investments in common stock of Holding to the
extent permitted under Section 6.08(f), and advances to Holding to the extent
permitted under Section 6.08(g);
(j) Investments existing on the date hereof in Subsidiaries or Joint
Ventures and other Investments listed in Schedule 6.05;
(k) Investments consisting of deposits made in Cash Pooling Arrangements
permitted under clause (t) of Section 6.04;
(l) Capital Expenditures (determined without giving effect to clause (I) of
the further proviso in the definition of "Capital Expenditures");
(m) Acquisitions of companies, divisions of companies or similar business
units (or of substantially all the assets and business of any of the foregoing)
(the "Acquiree") engaged in a related line of business, a line of business
involving the sale of ASI's or its Subsidiaries' products or a line of business
involving manufacturing similar to that currently employed by ASI or its
Subsidiaries (each an "Acquisition") so long as, in the case of each such
Acquisition, such Acquisition satisfies the conditions set forth in one of
subparagraphs (i) and (ii) below:
(i) the consideration paid in connection with such Acquisition consists
solely of common stock of Holding; or
(ii) (A) the consideration paid in connection with such Acquisition
includes such common stock of Holding, the payment of cash, the assumption of
debt or the incurrence of Funded Debt to the applicable selling entity (or any
combination of the foregoing) and (B) the aggregate amount of all cash paid and
Funded Debt so assumed or incurred in connection with such Acquisition does not
exceed the Redemption Amount;
provided that (x) at the time of any such proposed Acquisition under the
foregoing subparagraphs of this paragraph (m) and immediately after giving
effect thereto, no Event of Default or Default shall exist after giving pro
forma effect to the Acquisition as if such Acquisition had been completed on the
last day of the quarter of the most recent available quarterly financial
statements and (y) in the case of any Acquisition of any Acquiree pursuant to
subparagraph (ii) above for consideration totaling $20,000,000 or more, ASI
shall deliver to the Administrative Agent, as promptly after such Acquisition as
reasonably practicable, either (1) a report prepared with respect to such
Acquiree in accordance with Statement on Auditing Standards No. 35 "Special
Reports--Applying Agreed Upon Procedures to Specified Elements, Accounts, or
Items of a Financial Statement" by a nationally recognized independent public
accounting firm or (2) in the case of an Acquiree that files periodic reports
with the Securities and Exchange Commission and whose annual financial
statements are audited by a nationally recognized independent public accounting
firm, the Form 10-K and Forms 10-Q filed by such Acquiree for the most recent
fiscal year and the four most recent fiscal quarters or (3) in the case of an
Acquiree that is not organized or doing business in the United States, the most
recent audited financial information available for such Acquiree for an annual
period; and
(n) Investments in LDC Holding Companies not otherwise permitted by this
Section 6.05, in an aggregate amount outstanding of not more than $50,000,000 at
any time, provided that the reinvestment by ASI in any LDC Holding Company of
any fees, royalties or dividends received in connection with the establishment
and activities of such LDC Holding Company shall not be included within the
$50,000,000.
SECTION 6.06. Leases. Directly or indirectly become liable in any way,
whether by assignment or as a guarantor or other surety, for obligations to rent
or lease any real or personal property if, after giving effect thereto, the
Consolidated Rental Payments of ASI in any fiscal year would exceed
<PAGE>
(a) for the fiscal year ending December 31, 1995, $60,000,000, and (b) for
each subsequent fiscal year, an amount equal to 110% of the amount permitted
during the immediately preceding fiscal year.
SECTION 6.07. Prepayments of Indebtedness, etc. Directly or indirectly (a)
amend or modify (or permit the amendment or modification of) any of the terms or
provisions of the Indebtedness described in any of clauses (b) through (e) of
Section 6.04 (other than Indebtedness described in such clause (e) by reference
to paragraph (B) of Section 6.02(a)(iv)), or any indenture or other agreement or
instrument related thereto, if such amendment or modification would add any
covenant or default, or change the terms of any covenant or default thereunder,
in the good faith judgment of ASI, in a manner adverse to the issuer of such
Indebtedness, or would shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any subordination provision thereof;
(b) except with the Net Cash Proceeds of any Indebtedness permitted by Section
6.04(d), make (or give any notice in respect of) any voluntary or optional
payment or prepayment or redemption or acquisition for value or defeasance of or
exchange any Indebtedness described in any of clauses (b) through (e) or clause
(j) or (k) of Section 6.04 (other than Indebtedness described in such clause (e)
by reference to paragraph (B) of Section 6.02(a)(iv)), except that (i)
Indebtedness described in clause (j) or (k) of Section 6.04 may be prepaid,
redeemed or repurchased, provided that the aggregate amount of cash expended in
connection therewith shall not exceed $1,000,000 during any fiscal year of ASI
(except that payments under any Capital Lease resulting from events of casualty
or obsolescence shall not be deemed prepayments for purposes of this clause (b))
and (ii) Indebtedness described in any of clauses (b) through (e) or clause (j)
or (k) of Section 6.04 may be prepaid, redeemed or repurchased in an aggregate
principal amount not exceeding the Redemption Amount; provided that any
prepayment, redemption or repurchase otherwise permitted by this clause (b)
shall not be permitted at any time that an Event of Default has occurred and is
continuing; and (c) amend, modify or change the Organizational Documents of ASI
or any Subsidiary where such change would be reasonably likely to result in a
Materially Adverse Effect or enter into or permit or consent to any stockholder
or similar agreement or arrangement among holders of any ownership interest in
ASI or any Subsidiary the terms of which grant such holders the right to veto
any proposed asset sale that the Board of Directors of ASI or such Subsidiary
has determined is advisable in order to avoid or lessen the likelihood of a
Default or Event of Default or a default or breach under any of the Credit
Documents or the Senior Indentures or the indentures under which the
Subordinated Securities are issued.
SECTION 6.08. Dividends, etc. Directly or indirectly declare, order, make
or set apart any sum for or pay any Restricted Junior Payment, except (a) as
permitted in Section 6.07 (or to the extent required to enable ASI or a
Subsidiary to make a payment permitted by Section 6.07); (b) to make interest
payments on the Subordinated Indebtedness, including payment of accrued interest
and premium, if any, payable in connection with a redemption of any such
securities permitted by Section 6.07; (c) to make regularly scheduled quarterly
dividend payments on preferred stock in additional shares of such preferred
stock in accordance with the terms thereof or in cash in accordance with the
terms thereof; (d) ASI and its Domestic Subsidiaries may make payments to
Holding equal to their separate federal and state income tax liability, provided
that Holding uses such payments immediately to pay such taxes, and any tax
refund received by Holding is applied to the repayment of any monies advanced by
ASI or its Domestic Subsidiaries to meet such tax payments; (e) advances made or
cash dividends paid to Holding which advances or dividends are used by Holding
(i) to repurchase Capital Stock of Holding from officers and employees of
Holding, ASI or their Subsidiaries (or their estates) upon death, disability or
termination of employment of such officers and employees or to settle for cash
at any time any rights of an officer or employee with respect to any stock
option or similar rights; provided that the aggregate amount of all such
repurchases and cash settlements in any calendar year shall not exceed
$10,000,000 or (ii) for the purposes referred to in Section 6.02(a)(viii)(5);
(f) advances made or cash dividends paid to Holding which advances or dividends
are used by Holding to repurchase shares of its common stock, or payments by ASI
to repurchase shares of common stock of Holding, in each case from participants
who have received a distribution of shares from the ESOP to the extent such
participants have a put right, or ASI or Holding has a call right, with respect
to such shares; and (g) advances made or cash dividends paid to Holding which
advances or dividends are used to satisfy liabilities of Holding incurred in
compliance with Article VI.B, including taxes, liabilities incurred in
connection with the registration or issuance of its capital stock or compliance
with reporting obligations arising therefrom, or customary indemnification
obligations to officers and directors, provided that such liabilities could have
been incurred by ASI without violating this Agreement. In addition to any
Restricted Junior Payments permitted by the foregoing
<PAGE>
clauses (a) through (g), inclusive, ASI shall be permitted to make Restricted
Junior Payments in a maximum aggregate amount not to exceed the greater of (I)
$10,000,000 in any fiscal year or (II) in the event the ratio of Consolidated
Total Debt of ASI to Consolidated EBITDA of ASI is equal to or less than 2.00 to
1 measured as of December 31 for any calendar year, during the twelve month
period commencing on the date of delivery of the financial statements for such
calendar year pursuant to clause (b) of Section 5.01, in an amount not to exceed
33% of Consolidated Net Income of ASI for such calendar year, it being
understood that following the initial Restricted Junior Payments permitted by
this clause (II), ASI may continue to make Restricted Junior Payments in each
calendar year following the year in which such initial payments are made in an
amount not exceeding 33% of Consolidated Net Income of ASI for the calendar year
preceding such payment in the event that the ratio of Consolidated Total Debt of
ASI to Consolidated EBITDA of ASI is equal to or less than 2.25 to 1 measured as
of December 31 for such calendar year. No advances made to Holding as permitted
by this Section shall be treated as assets of ASI or its Subsidiaries for
purposes of determining compliance with ASI's other obligations under this
Agreement. Notwithstanding the foregoing, Restricted Junior Payments otherwise
permitted by this Section 6.08 shall not be permitted at any time that an Event
of Default has occurred and is continuing; provided that for all purposes of
this Section 6.08 any Restricted Junior Payment permitted by this Section 6.08
at the date of its declaration may be paid notwithstanding any subsequent change
in circumstances.
SECTION 6.09. Transactions with Affiliates. Directly or indirectly enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any Affiliate other than on terms and conditions
substantially as favorable to ASI or such Subsidiary as would be obtainable by
ASI or such Subsidiary at the time in a comparable arm's-length transaction with
a person other than an Affiliate, except (a) ASI may perform its obligations
under the Amended and Restated Stockholders Agreement, (b) ASI and any of its
Subsidiaries may, in the ordinary course of business, engage in transactions
with ASI or its other Subsidiaries, as the case may be, provided that ASI and
its Subsidiaries shall not, pursuant to this clause (b), engage in any such
transaction or series of transactions that would be reasonably likely to result
in a Materially Adverse Effect, (c) the payment of customary and reasonable fees
to any underwriters for underwriting in connection with the Transactions
referred to in Section 3.04(a) and other public offerings of Securities
permitted by this Agreement, (d) the payment of fees from time to time for
financial and consulting services, such fees not to exceed the usual and
customary fees for similar services, and (e) the transactions otherwise
specifically permitted by Sections 6.02, 6.03, 6.04, 6.05, 6.06, 6.07 and 6.08.
SECTION 6.10. Consolidated Total Debt to Consolidated EBITDA Ratio. Permit
the ratio of (i) Consolidated Total Debt of ASI on any of the dates indicated
below to (ii) Consolidated EBITDA of ASI during the twelve months ended on any
of the dates indicated below, to exceed the ratio indicated with respect to such
date.
Measuring Date Ratio
Last day of March in the year 1995 4.75:1
Last day of June in the year 1995 4.65:1
Last day of September in the year 1995 4.35:1
Last day of December in theyear 1995 4.00:1
Last day of March in the year 1996 4.10:1
Last day of June inthe year 1996 3.90:1
Last day of September in the year 1996 3.70:1
Last day ofDecember in the year 1996 3.50:1
Last day of March in the year 1997 3.60:1
Lastday of June in the year 1997 3:40:1
Last day of September in the year 1997 3.20:1
Last day of December in the year 1997 3.00:1
Last day of each fiscalquarter in 1998 and thereafter 2.50:1
<PAGE>
In the event ASI shall complete, directly or through a Subsidiary, a
permitted Acquisition (whether or not in reliance on paragraph (m) of Section
6.05), the ratio of Consolidated Total Debt of ASI to Consolidated EBITDA of ASI
shall be determined thereafter by computing such ratio on a pro forma basis as
if such Acquisition had been completed on the first day of the relevant twelve
month period referred to above for each of the dates indicated above occurring
after the date of such Acquisition.
SECTION 6.11. Interest Coverage Ratio. Permit the ratio of (i) Consolidated
Free Cash Flow of ASI to (ii) Consolidated Cash Fixed Charges of ASI measured on
each of the measuring dates set forth below, in each case for the period of
twelve months ended on such measuring date, to be less than the ratio indicated
below with respect to such date:
Measuring Date Ratio
Last day of March in the year 1995 2.00:1
Last day of June in the year 1995 2.10:1
Last day of September in the year 1995 2.20:1
Last day of December in theyear 1995 2.30:1
Last day of March in the year 1996 2.40:1
Last day of June in the year 1996 2.50:1
Last day of September in the year 1996 2.70:1
Last day of December in the year 1996 3.00:1
Last day of March in the year 1997 3.10:1
Last day of June in the year 1997 3.30:1
Last day of September in the year 1997 3.50:1
Last day of December in the year 1997 3.75:1
Last day of each fiscal quarter in 1998 and thereafter 3.25:1
SECTION 6.12. ERISA. (a) Engage or permit any ERISA Affiliate to engage in
any transaction in connection with which any Borrower or any of its Subsidiaries
or any of their ERISA Affiliates could be subject to either a civil penalty
assessed pursuant to Section 502(i) or (l) of ERISA or a tax imposed by Section
4975 of the Code in either case in an amount which, together with all other such
penalties or taxes incurred subsequent to the date hereof, would exceed
$l,000,000;
(b) fail or permit any ERISA Affiliate to fail to make full payment when
due of all amounts which, under the provisions of any Pension Plan, any Borrower
or any of its Subsidiaries or any of their ERISA Affiliates is required to pay
as contributions thereto; or permit to exist any accumulated funding
deficiencies, whether or not waived, with respect to all Pension Plans in an
aggregate amount greater than $5,000,000;
(c) permit the sum of the amount of unfunded liabilities with respect to
all Foreign Pension Plans (excluding each Foreign Pension Plan with an amount of
unfunded liabilities of zero or less) to exceed $50,000,000 or permit the sum of
the amount of unfunded current liabilities under all Pension Plans (excluding
each Pension Plan with an amount of unfunded current liabilities of zero or
less) to exceed $100,000,000; or
(d) fail or permit any ERISA Affiliate to fail to make any payments in an
amount individually or in the aggregate greater than $1,000,000 to any
Multiemployer Plan that any Borrower or any of its Subsidiaries, or any of their
ERISA Affiliates, may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto.
As used in this Section 6.12, the term "accumulated funding deficiency" has
the meaning specified in Section 302 of ERISA and Section 412 of the Code, and
the term "amount of unfunded current liabilities" has the meaning specified in
Section 412(1)(8)(A) of the Code.
<PAGE>
SECTION 6.13. Sale Leasebacks. Directly or indirectly become or remain
liable as lessee or as guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any assets (whether real or
personal or mixed) whether now owned or hereafter acquired, (i) which ASI or any
of its Subsidiaries has sold or transferred or is to sell or transfer to any
other person other than to a Subsidiary of ASI, or (ii) which ASI or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property which has been sold or is to be sold or transferred by ASI or any such
Subsidiary to any person in connection with such lease, provided that ASI or a
Subsidiary of ASI may enter into a sale leaseback with a person who is not an
Affiliate with respect to its property located in Piscataway, New Jersey, and
with respect to additional sale leasebacks yielding not more than $10,000,000 of
gross proceeds in any fiscal year, provided that each such sale leaseback
otherwise complies with Section 6.02.
SECTION 6.14. Issuance and Sale of Stock. Issue or sell any shares of its
capital stock except (a) to qualify directors of Subsidiaries where required by
applicable law or to satisfy other requirements of applicable law with respect
to the ownership of capital stock of Foreign Subsidiaries, (b) sales of
preferred stock of ASI with an aggregate liquidation preference not to exceed
$100,000, (c) issuances and sales of capital stock by Subsidiaries other than
Designated Subsidiaries the Net Cash Proceeds of which are invested in the
businesses of such Subsidiaries, (d) issuances and sales of capital stock by
Designated Subsidiaries to ASI or other Designated Subsidiaries permitted by
Section 6.05(d) and (f), (e) issuances and sales of capital stock by any
Designated Subsidiary which is a Non-Material Subsidiary, provided that the Net
Cash Proceeds of such issuance and sale are invested in the business of such
Designated Subsidiary and (f) issuances and sales of capital stock and options,
warrants or rights to acquire stock by Subsidiaries to employees, officers and
directors of such Subsidiaries.
SECTION 6.15. Limitation on Restrictions on Subsidiary Dividends and Other
Distributions, etc. Directly or indirectly create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any of its subsidiaries to (a) pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits, or pay any indebtedness, (b) make loans or advances to any Borrower or
Subsidiary or (c) transfer any of its properties or assets to any Borrower or
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) customary non-assignment provisions in any lease governing a
leasehold interest, (ii) any agreement or other instrument of a person acquired
by it at the time of such acquisition, which encumbrance or restriction is not
applicable to any person, or the properties or assets of any person, other than
the property or assets of the person so acquired and was not entered into in
contemplation of such acquisition, (iii) restrictions existing on the date
hereof under the Indentures relating to the 9-1/4% Sinking Fund Debentures, the
10-7/8% Senior Notes, the 11-3/8% Senior Debentures and other agreements with
investors in Subsidiaries which are not Designated Subsidiaries and (iv) this
Agreement and the other Credit Documents; provided that this Section 6.15 shall
not prohibit encumbrances or restrictions on the ability of ASI to make such
dividends, distributions, loans, advances or transfers.
SECTION 6.16. No Further Negative Pledges. Except with respect to
prohibitions against other encumbrances on specific property encumbered to
secure payment of particular Indebtedness (which Indebtedness relates solely to
such specific property, and improvements and accretions thereto, and is
otherwise permitted hereby), enter into any agreement prohibiting the creation
or assumption of any Lien upon the properties or assets of any Borrower or
Subsidiary of a Borrower, whether now owned or hereafter acquired, or requiring
an obligation to be secured if some other obligation is secured.
SECTION 6.17. Restrictions Relating to ASI-BV Intercompany Note. Make or
permit to be made any amendment to or other modification of the ASI-BV
Intercompany Note.
SECTION 6.18. Changes in Business or Assets. (a) Cause or permit ASI and
its Subsidiaries taken as a whole substantially to alter the character of their
business.
(b) Take or permit any Subsidiary to take any action (i) affecting the
assets or cash flows of any Borrower or the Borrower Group of which it is a part
or (ii) concentrating Indebtedness within a particular Borrower Group if as a
result of such actions the ability of such Borrower to pay or perform its
obligations under this Agreement and the other Credit Documents would be
materially impaired.
<PAGE>
B. Holding covenants and agrees that it will not engage in any activity or
incur any material liability other than the ownership of the capital stock of
ASI and related activities and liabilities incidental thereto. Notwithstanding
anything herein or in the other Credit Documents to the contrary, Holding may
engage in any activity incidental to the (a) maintenance of its corporate
existence and compliance with applicable law; (b) issuance of equity Securities
to any person (pursuant to the Stock Incentive Plan, the Stockholder Rights
Agreement, the Amended and Restated Stockholders Agreement, the ESOP, any other
plan or agreement for the benefit of employees, officers and/or directors or
otherwise), including rights, options and warrants to acquire such equity
Securities; (c) registration of any of such equity Securities (whether or not
previously issued) under any federal, state or local securities laws or similar
laws of any jurisdiction outside the United States; (d) listing of any equity
Securities with any securities exchanges, any interdealer quotation system or
the National Association of Securities Dealers, Inc.; (e) ownership and
disposition of the common stock of ASI (to the extent otherwise permitted
hereunder); (f) guaranteeing Indebtedness permitted by Sections 6.04(b), (c) and
(d); (g) issuing periodic reports, proxy statements and other communications to
the holders of its Securities and applicable securities exchange, interdealer
quotation systems or the National Association of Security Dealers, Inc., or to
rating agencies, the SEC or comparable regulatory bodies; (h) paying dividends
and other amounts in respect of its outstanding Securities (to the extent
otherwise permitted hereunder); (i) accounting, legal, public relations,
investor relations, financial or management activities (including the employment
of employees, counsel, accountants, consultants, bankers, proxy solicitors,
advisors or other professionals) inconnection with any of the foregoing
activities; or (j) entering into, and performing its obligations and exercising
its rights under, this Agreement and its guaranty of its Subsidiaries'
obligations hereunder and other agreements to which Holding is or is to become a
party, including the Amended and Restated Stockholders Agreement, the
Stockholder Rights Agreement, the Stock Incentive Plan, the ESOP and other plans
and/or agreements for the benefit of employees, officers and directors of
Holding or any subsidiary of Holding.
C. Each Borrower that is a party to this Agreement other than ASI covenants
and agrees that on and after the Effective Date, and for so long as this
Agreement is in effect and until the Commitments have been terminated and the
Loans, together with interest, Fees and all other Obligations have been paid in
full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise give written consent, it will not take or refrain from
taking any action as a result of which a Default would occur under any of the
covenants set forth above in this Article VI.
ARTICLE VII
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
SECTION 7.01. Payments. Failure in the payment in the applicable currency
(i) when due (whether at stated maturity, by acceleration, by notice of
prepayment, under Section 2.06 or 2.11 or otherwise) of any principal of the
Loans, (ii) when due of any reimbursement with respect to any L/C Disbursement,
except to the extent due to the failure of any Lender to make any Revolving
Credit Loan when required to do so, or (iii) of any interest on the Loans or any
Fees or any other amounts owing hereunder or under any of the other Credit
Documents within five days after the date due; or
SECTION 7.02. Representations, etc. Any representation, warranty or
statement made, or deemed to have been made, by any Credit Party herein or in
any other Credit Document or in any written statement or certificate at any time
delivered pursuant hereto or thereto or in connection herewith or therewith
shall be untrue in any respect material to the interests of the Lenders on the
date as of which made or deemed made; or
SECTION 7.03. Covenants. Any Credit Party shall (i) fail to perform, comply
with or observe any term, covenant or agreement applicable to it contained in
Section 5.01(g), (h) or (i) (and such failure shall remain uncured for five
Business Days after notice to ASI by the Administrative Agent or any
<PAGE>
Lender or after a Responsible Officer of such Credit Party shall otherwise
become aware of such failure), or Article VI (and, in the case of any failure
under Section 6.03 arising without any action on the part of ASI or any
Subsidiary, such failure shall remain uncured for 10 Business Days) or (ii)
default in the due performance or observance by it of any term, covenant or
agreement applicable to it (other than those referred to in Section 7.01 or 7.02
and clause (i) of this Section 7.03) contained in this Agreement or in any of
the other Credit Documents and such default under this clause (ii) shall not
have been waived or remedied within 30 days after notice thereof to ASI from the
Administrative Agent or any Lender, with a copy to the Administrative Agent; or
SECTION 7.04. Default Under Other Agreements. (a) ASI or any of its
Subsidiaries (other than Non-Material Subsidiaries) shall (i) fail to pay
principal of or interest on any Indebtedness (other than Indebtedness referred
to in Section 7.01 but including any guaranty of Indebtedness referred to in
Section 7.01 of any other Subsidiary) in excess of $10,000,000 individually or
$25,000,000 in the aggregate for ASI and its Subsidiaries, or (ii) breach or
default in the observance or performance of any agreement, obligation or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which breach, default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity (or the stated maturity
of the underlying obligation, as the case may be); (b) any such Indebtedness of
ASI or any Subsidiary (other than Non-Material Subsidiaries) shall be declared
to be due and payable, or required to be prepaid (other than from the proceeds
of asset sales or the issuance of other securities to the extent required by the
Senior Indentures or by a regularly scheduled required prepayment) prior to the
stated maturity thereof or (c) there shall occur any default, event of default,
event of termination or other event entitling any person other than ASI or a
Subsidiary to accelerate any Indebtedness, or terminate the purchase of
receivables, under a Permitted Receivables Financing; or
SECTION 7.05. Bankruptcy, etc. (a)(x) A court shall enter a decree or order
for relief in respect of any Credit Party or any of its Subsidiaries (other than
Non-Material Subsidiaries) in an involuntary case under the Bankruptcy Code or
any applicable foreign, federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, which decree or order is not stayed; or (y) an
involuntary case is commenced against any Credit Party or any of its
Subsidiaries (other than Non- Material Subsidiaries) under the Bankruptcy Code
or any applicable foreign, federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other person having similar powers over any
Credit Party or any of its Subsidiaries (other than Non- Material Subsidiaries),
or over all or a substantial part of its property, shall have been entered; or
an interim receiver, trustee or other custodian of any Credit Party or any of
its Subsidiaries (other than Non- Material Subsidiaries) for all or a
substantial part of the property of any Credit Party or any of its Subsidiaries
(other than Non-Material Subsidiaries) is involuntarily appointed, and the
continuance of any such events referred to in clause (y) for 60 days unless
dismissed or bonded and stayed or discharged; or
(b) (x) Any Credit Party or any of its Subsidiaries (other than
Non-Material Subsidiaries) shall have an order for relief entered with respect
to it or shall commence a voluntary case under the Bankruptcy Code or any
applicable foreign, federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property or the making by any Credit Party or any of its
Subsidiaries (other than Non-Material Subsidiaries) of any assignment for the
benefit of creditors; or (y) the inability or failure of any Credit Party or any
of its Subsidiaries (other than Non-Material Subsidiaries) to pay its debts as
such debts mature, or the admission by any Credit Party or any of its
Subsidiaries (other than Non-Material Subsidiaries) in writing of its inability
to pay its debts as such debts become due, or the Board of Directors (or any
committee thereof) of any Credit Party or any of its Subsidiaries (other than
Non-Material Subsidiaries) adopts any resolution or otherwise authorizes action
to approve any of the foregoing; or
SECTION 7.06. ERISA. (a) A Reportable Event or Reportable Events, or a
failure to make a required installment or other payment (within the meaning of
<PAGE>
Section 412(n)(1) of the Code) shallhave occurred with respect to any
Pension Plan or Pension Plans that reasonably could be expected to result in
liability of any Credit Party to the PBGC or to a Pension Plan in an aggregate
amount exceeding $10,000,000 and, within 30 days after the reporting of any such
Reportable Event to the Lenders or after the receipt by the Lenders of the
statement required pursuant to Section 5.07(b)(iii), the Administrative Agent
shall have notified ASI in writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or Reportable Events
or the failure to make a required payment, there are reasonable grounds (A) for
the termination of such Pension Plan or Pension Plans by the PBGC, (B) for the
appointment by the appropriate United States district court of a trustee to
administer such Pension Plan or Pension Plans (C) for the imposition of a lien
in favor of a Pension Plan and (ii) as a result thereof an Event of Default
exists hereunder; or
(b) (i) a trustee shall be appointed by a Governmental Authority to
administer any Pension Plan or Pension Plans or Foreign Pension Plan; or (ii) a
Governmental Authority shall institute proceedings to terminate any such Pension
Plan or Pension Plans or Foreign Pension Plan; or (iii) any Borrower or any of
its Subsidiaries or any of its respective ERISA Affiliates shall have withdrawn
from a Pension Plan or any Foreign Pension Plan if, as of the date thereof or
any subsequent date, the sum of each of the Borrowers' and their respective
ERISA Affiliates' various liabilities (such liabilities to include, without
limitation, any liability to a Governmental Authority or to any party under
Sections 4062, 4063 or 4064 of ERISA or any other provision of law and to be
calculated after giving effect to the tax consequences thereof) that are likely
to result from or otherwise be associated with such events listed in clauses (i)
through (iii) above would exceed, in the aggregate for all such events,
$20,000,000; or
(c) Any Credit Party or any of its Subsidiaries or any of their respective
ERISA Affiliates as employer under a Multiemployer Plan shall have made a
complete or partial withdrawal from such Multiemployer Plan and the plan sponsor
of such Multiemployer Plan shall have notified such withdrawing employer that
such employer has incurred a withdrawal liability requiring annual payments in
an amount individually or in the aggregate exceeding $1,000,000; unless (x)
prior to the time any payment of such withdrawal liability is due in accordance
with Section 4912(c)(2) of ERISA, the plan sponsor agrees in writing that the
correct amount of the annual payment is less than $1,000,000, or (y) prior to
the time any payment of such withdrawal liability is due in accordance with
Section 4219(c)(2) of ERISA, a court of competent jurisdiction has enjoined and
continues to enjoin the collection of such payment, or (z) Section 4219 of ERISA
has been amended to provide that notification that such withdrawing employer has
incurred a withdrawal liability would not, in the ordinary course or with the
lapse of time, require the payment; provided that, in the event of such
amendment, an Event of Default shall be deemed to occur when any payment of such
withdrawal liability becomes due or would, in the ordinary course or with the
lapse of time, become due; or
SECTION 7.07. Security Documents. Any of the Security Documents shall, for
any reason, not be or shall cease to be in full force and effect or be declared
to be null and void or any of the Security Documents shall not give or shall
cease to give the Collateral Agent for the benefit of the Lenders the Liens,
rights, powers and privileges purported to be created thereby (including a
perfected security interest in, and Lien on, all of the Collateral subject
thereto (or comparable interest under foreign law in the case of foreign
Collateral)), in favor of the Collateral Agent for the benefit of the Lenders,
superior to and prior to the rights of all third persons to the extent
contemplated hereby and subject to no other Liens (except to the extent
expressly permitted herein or therein), other than because such Security
Document is not then yet required to be executed and delivered hereunder or the
security interests created thereby perfected as contemplated in Section 3.09(a),
or any Credit Party shall fail to perform or observe any term, covenant or
agreement on its part to be performed or observed pursuant to any Security
Document or the validity or enforceability of the Liens granted, to be granted,
or purported to be granted, by any of the Security Documents shall be contested
by any Credit Party or any of its Affiliates, provided that no such defect in
the Security Documents, and no such failure to perform or observe any such term,
covenant or agreement shall give rise to an Event of Default under this Section
7.07 unless such defect or such failure shall affect Collateral that is or
should be subject to a Lien in favor of the Collateral Agent for the benefit of
the Lenders having an aggregate value in excess of $10,000,000 (without giving
effect to any exceptions to such terms, covenants or agreements or defects
otherwise permitted by the Security Documents) or is not corrected upon request
by the Administrative Agent upon reasonable notice; or
<PAGE>
SECTION 7.08. Guarantees. Any Guarantee Document or any provision thereof
shall be declared to be unenforceable or null and void (other than because such
Guarantee Document is not then yet required to be executed and delivered
hereunder) or any Guarantor thereunder or any person acting by or on behalf of
such Guarantor shall deny or disaffirm any of such Guarantor's obligations under
any Guarantee Document or any Guarantor shall fail to perform or observe any
term, covenant or agreement on its part to be performed or observed pursuant to
any Guarantee Document; or
SECTION 7.09. Judgments. One or more judgments, decrees, writs, warrants of
attachment or similar process shall be entered or filed against any Credit Party
or any of its Subsidiaries (other than persons that are Non-Material
Subsidiaries) or any of their assets involving $25,000,000 or more in the
aggregate (in either case, not fully and adequately covered by insurance by a
carrier that has acknowledged coverage) and any such judgments, decrees, writs,
warrants of attachment or similar process shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof or within five days prior to the date of any proposed sale thereunder;
or
SECTION 7.10. Change in Control. There shall occur a Change in Control;
THEN (i) upon the occurrence of any Event of Default described in the
foregoing Section 7.05 with respect to any Borrower, other than clause (y) of
Section 7.05(b), each of (x) the unpaid principal amount of and accrued interest
on all of the Loans of the affected Borrower, (y) an amount equal to the maximum
amount which may at any time be drawn under all Letters of Credit then
outstanding for the account of the affected Borrower (whether or not any
beneficiary under any Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents required to draw
under such Letter of Credit) and (z) any other amounts payable hereunder or
under any of the other Credit Documents by the affected Borrower shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by each Credit Party, and the obligation of each Lender to make any Loan
to the affected Borrower (or to any Borrower in the case of such an Event of
Default relating to ASI) and the right of the affected Borrower (or of all
Borrowers in the case of such an Event of Default relating to ASI) to request
Letters of Credit shall thereupon automatically terminate, and (ii) upon the
occurrence and during the continuance of any other Event of Default (including
any Event of Default under Section 7.05), the Required Lenders may, by written
notice to ASI, (A) declare with respect to any Borrower or all Borrowers the
amounts described in clauses (x), (y) and (z) with respect to such Borrower or
Borrowers to be, and the same shall forthwith become, due and payable, together
with accrued interest thereon and/or (B) terminate the obligation of each Lender
to make any Loan to any Borrower or to all Borrowers and the right of any
Borrower or of all Borrowers to request Letters of Credit hereunder; provided,
that the foregoing shall not affect in any way the obligations of the Revolving
Credit Lenders to any Issuing Bank or Swingline Lender under Section 2.19(d) or
2.20(e) with respect to outstanding Letters of Credit or Swingline Loans. So
long as any Letter of Credit shall remain outstanding, any amounts described in
clause (y) above with respect to such Letter of Credit, when received by the
Administrative Agent, shall be held by the Administrative Agent pursuant to the
terms of the Collateral Account Agreement as cash Collateral for the obligation
of the applicable Borrower to reimburse the applicable Issuing Bank in the event
of any drawing under such Letter of Credit, as required under the Collateral
Account Agreement, and upon any drawing under any outstanding Letter of Credit
in respect of which the Administrative Agent has deposited in the Collateral
Account any amounts described in clause (y) above, the Administrative Agent
shall apply such amounts held by the Administrative Agent to reimburse the
applicable Issuing Bank for the amount of such drawing. In the event any Letter
of Credit in respect of which the Administrative Agent has deposited in the
Collateral Account any amounts described in clause (y) above is cancelled or
expires or in the event of any reduction in the maximum amount available at any
time for drawing under such Letter of Credit ("Maximum Available Amount"), the
Administrative Agent shall apply the amount then deposited in the Collateral
Account in excess of the Maximum Available Amount immediately after such
cancellation, expiration or reduction, if any, first to the cash
collateralization pursuant to the terms of the Collateral Account Agreement of
any outstanding Letters of Credit in respect of which ASI or any Borrower has
failed to pay all or a portion of the amounts described in clause (y) above, as
the case may be, and second, to the payment in full of the outstanding
Obligations. Nevertheless, if, at any time within 60 days after acceleration of
the maturity of any Loans, the Borrowers shall pay all arrears of interest and
all payments on account of the principal which shall have become due otherwise
than by acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in
<PAGE>
this Agreement) and all Defaults and Events of Default (other than non-payment
of principal of and accrued interest on the Loans, and payments of amounts
referred to in clause (y) above, in each case due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 10.10, then the
Required Lenders by written notice to the Borrowers may rescind and annul the
acceleration and its consequences; and the Administrative Agent shall return to
ASI (for the accounts of the respective Borrowers that paid such amounts) any
amounts held by the Administrative Agent pursuant to the Collateral Account
Agreement as cash collateral in respect of amounts described in clause (y)
above; but such action shall not affect any subsequent Default or Event of
Default or impair any right consequent thereon. Upon any such Event of Default,
the Collateral Agent may enforce any or all of the Liens and security interests
created pursuant to any or all of the Security Documents.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Appointment. Chemical Bank is hereby appointed the
Administrative Agent hereunder by each Lender, and each Lender hereby authorizes
the Administrative Agent to act hereunder and under the other instruments and
agreements referred to herein (including each of the Credit Documents) as its
agent hereunder and thereunder. Chemical Bank agrees to act as such upon the
express conditions contained in this Article VIII and in the Credit Documents.
The provisions of this Article VIII are solely for the benefit of the
Administrative Agent (in its capacity as such and as Collateral Agent) and, to
the extent provided herein, the other Agents, and no Credit Party shall have any
rights as a third party beneficiary of any of the provisions hereof. Each
reference in this Article VIII to the Administrative Agent shall be deemed to
include Chemical Bank in its capacity as Collateral Agent. The Administrative
Agent agrees to give to each Lender promptly a copy of any notice or certificate
given to the Administrative Agent by any of the Borrowers pursuant to the terms
of this Agreement.
SECTION 8.02. Delegation of Duties. Any Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel or other advisors
concerning all matters pertaining to its duties and rights hereunder. No Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise expressly required by Section 8.03. Without limiting the foregoing,
the Administrative Agent may appoint ABS or CIBL as its agent to perform the
functions of the Administrative Agent (or any portion of such functions)
hereunder relating to the advancing of funds pursuant to this Agreement and
distribution of funds to the Lenders and to perform such other related functions
of the Administrative Agent hereunder as are reasonably incidental to such
functions.
SECTION 8.03. Powers; General Immunity. (a) Each Lender irrevocably
authorizes the Administrative Agent to take such action on such Lender's behalf
and to exercise such powers hereunder and under the other Credit Documents and
under the other instruments and agreements referred to herein and therein
(including the Security Documents) as are specifically delegated to it by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have only those duties and
responsibilities which are expressly specified in this Agreement and the other
Credit Documents and it may perform such duties by or through its agents or
employees (including ABS, CSI and CIBL). The duties of the Administrative Agent
shall be mechanical and administrative in nature; and the Administrative Agent
shall not have by reason of this Agreement a fiduciary relationship in respect
of any Lender; and nothing in this Agreement or in any of the other Credit
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or in respect of any of the other Credit Documents or the other
instruments and agreements referred to herein or therein except as expressly set
forth herein or therein. It is understood that the Managing Agents and Co-Agents
do not have any duties or obligations under this Agreement or any other Credit
Document (other than in their capacities as Lenders).
(b) None of the Administrative Agent, ABS, CSI and CIBL, nor any other
Agent, shall be responsible to any Lender for the execution, effectiveness,
<PAGE>
genuineness, validity, enforceability, collectability or sufficiency of
this Agreement, any of the other Credit Documents, or any of the Notes issued
hereunder or for the issuance of any of the Letters of Credit and such Lender's
purchase of participations therein, or for any Liens or Guarantees granted by,
or purported to be granted by, any of the Credit Documents, or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or other documents in connection herewith or
therewith furnished or made by the Administrative Agent, ABS, CSI or CIBL, or
any other Agent, to any Lender or by or on behalf of any Credit Party to the
Administrative Agent, ABS, CSI or CIBL, or any other Agent, or any Lender, or be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained herein or
therein or as to the use of the proceeds of the Loans or the Letters of Credit
or of the existence or possible existence of any Default or Event of Default.
(c) Neither the Administrative Agent, nor any other Agent, nor any of its
officers, directors, employees, agents, investigators, consultants,
attorneys-in-fact or affiliates (including ABS, CSI and CIBL) shall be liable to
any Lender for any action taken or omitted hereunder or under any of the other
Credit Documents or in connection herewith or therewith unless, but only to the
extent, caused by its or their gross negligence or willful misconduct. If the
Administrative Agent shall request instructions from Lenders with respect to any
act or action (including the failure to take an action) in connection with this
Agreement or any of the other Credit Documents, the Administrative Agent shall
be entitled to refrain from such act or taking such action unless and until it
shall have received instructions from the Required Lenders. Without prejudice to
the generality of the foregoing, (i) each of the Administrative Agent, ABS, CSI
and CIBL shall be entitled to rely, and shall be fully protected in relying,
upon any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for any of the Credit Parties or
their Affiliates), accountants, experts and other professional advisors selected
by it; and (ii) no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or (where so
instructed) refraining from acting under this Agreement or the other instruments
and agreements referred to herein in accordance with the instructions of the
Required Lenders. The Administrative Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it under this Agreement
or the other Credit Documents or the other instruments and agreements referred
to herein or therein unless and until it has obtained the instructions of
Required Lenders.
(d) The agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon, the
Administrative Agent or any other Agent, in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans or any Letter of
Credit, each Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with any Credit Party or any Affiliate of
any Credit Party as if it were not performing the duties specified herein, and
may accept fees and other consideration from any Credit Party or any Affiliate
of any Credit Party for services in connection with this Agreement and the other
Credit Documents, including transactions contemplated hereby or thereby, and
otherwise without having to account for the same to the Lenders.
(e) Without limiting the foregoing, none of the Administrative Agent, ABS,
CSI or CIBL, or any other Agent, shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any of the other
Credit Documents, or to inspect the properties, books or records of any Credit
Party or any of its Subsidiaries or Affiliates. None of the Administrative
Agent, ABS, CSI or CIBL, nor any other Agent, shall be responsible to any Lender
for the effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Agreement or any other Credit Document or of any Lien or
Guarantee granted or purported to be granted hereby or thereby or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Administrative Agent, ABS, CSI or CIBL, or
any other Agent, to any Lender or by or on behalf of any Credit Party to the
Administrative Agent, ABS, CSI or CIBL, or any other Agent, or any
<PAGE>
Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the Letters of Credit or the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default.
(f) Without limiting the foregoing, each of the Administrative Agent, ABS,
CSI and CIBL may deem and treat the payee of any Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. Except for actions
expressly required to be taken by the Administrative Agent hereunder or under
any other Credit Document, the Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders as set forth in Section 10.04(a).
SECTION 8.04. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither any Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates (including ABS,
CSI and CIBL) has made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of any Credit
Party, shall be deemed to constitute any representation or warranty by any such
person to any Lender. Each Lender represents to each Agent, ABS, CSI and CIBL
that it has, independently and without reliance upon any Agent, ABS, CSI, CIBL
or any other Lender, made its own appraisal of and investigation into the
business, assets, liabilities, operations, property, financial and other
condition, prospects, solvency and creditworthiness of each Credit Party and
made its own decision to make its Loans hereunder and to issue or participate in
Letters of Credit hereunder and enter into this Agreement and the other
agreements contemplated hereby. No Agent shall have any duty or responsibility
either initially or on a continuing basis to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto whether coming into its possession before
the making of the Loans or the issuance of any Letter of Credit or at any time
or times thereafter, and no Agent shall further have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
SECTION 8.05. Indemnification. The Lenders agree to indemnify each Agent
(including the Administrative Agent in its capacity as Collateral Agent), ABS,
CSI and CIBL ratably according to their aggregate outstanding Loans (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Commitments
(excluding Swingline Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including counsel
fees and disbursements, imposed on, incurred by, charged by or asserted against
such Agent in its capacity as such (or as Collateral Agent) in any way relating
to or arising out of this Agreement or any other Credit Document, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted to be taken by
such Agent, ABS, CSI or CIBL under or in connection with any of the foregoing,
but only to the extent that any of the foregoing is not paid by the Credit
Parties; provided that no Lender shall be liable to any Agent for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's, ABS', CSI's or CIBL's gross negligence or wilful misconduct. If any
indemnity furnished to any Agent, ABS, CSI or CIBL for any purpose shall, in the
opinion of the applicable Agent, be insufficient or become impaired, the
applicable Agent may call for additional indemnity and cease, or not commence,
to do the acts indemnified against until such additional indemnity is furnished.
The agreements in this subsection shall survive the payment of all amounts
payable hereunder and under the other Credit Documents and the cancellation or
expiration of the Letters of Credit. To the extent indemnification payments made
by the Lenders pursuant to the Section 8.05 are subsequently recovered by the
Administrative Agent from the Borrowers, the Administrative Agent will promptly
refund such previously paid indemnity payments to the Lenders.
<PAGE>
SECTION 8.06. Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and under the other Credit Documents at any time by giving 15
Business Days' prior written notice to ASI and the Lenders. The resignation of
the Administrative Agent shall also be a resignation from its functions and
duties as Collateral Agent. Such resignation shall take effect upon the
acceptance by a successor Administrative Agent of appointment pursuant to
clauses (b) and (c) below or as otherwise provided below and upon satisfaction
of any additional requirements under any of the Security Documents. The
appointment of a successor to the Administrative Agent shall be deemed also the
appointment of a successor Collateral Agent under the applicable Credit
Documents.
(b) Upon any such notice of resignation, the Required Lenders shall appoint
a successor Administrative Agent who shall be reasonably satisfactory to ASI and
shall be an incorporated bank or trust company.
(c) If a successor Administrative Agent shall not have been so appointed
within said 15 Business Day period, the resigning Administrative Agent with the
consent of ASI (not to be unreasonably withheld or delayed) shall then appoint a
successor Administrative Agent who shall serve as Administrative Agent until
such time, if any, as the Required Lenders, with the consent of ASI, appoint a
successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) by the 20th Business Day after the date such notice of
resignation was given by the resigning Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of such Administrative Agent hereunder until
such time, if any, as the Required Lenders, with the consent of ASI, appoint a
successor Administrative Agent as provided above.
SECTION 8.07. Security Documents, etc. Each Lender hereby authorizes the
Collateral Agent to enter into each of the Security Documents and to take all
action contemplated thereby. Each Lender and the Dutch Borrower agrees that each
such person shall not have any right individually to realize upon the security
granted by any Security Document, it being understood and agreed that such
rights and remedies may be exercised by the Collateral Agent for the benefit of
Lenders and the other beneficiaries thereof upon the terms thereof. The
Collateral Agent may assign its rights and obligations as Collateral Agent under
any of the Security Documents to any direct or indirect Subsidiary of the
Collateral Agent or to any trustee, which assignee, in each such case, shall be
entitled to all the rights of the Collateral Agent under the applicable Security
Document and all rights hereunder of the Collateral Agent with respect to the
applicable Security Document. In addition, the Lenders and the Dutch Borrower
authorize the Administrative Agent and the Collateral Agent to appoint one or
more trustees who shall hold, independently and separately, the benefit of the
Obligations hereunder and the Collateral therefor under any of the Security
Documents relating to the pledge of Securities of the Dutch Borrower and its
Subsidiaries and/or Security Documents executed by the U.K. Borrower or any of
its Subsidiaries, which appointment shall in no way affect the Obligations of
the Borrowers to the Lenders and the Administrative Agent hereunder and under
the other Credit Documents but the trustee thereof shall be entitled to all the
rights hereunder of the Collateral Agent with respect to the applicable Security
Document as if it had been a party hereto as Collateral Agent in respect
thereof.
SECTION 8.08. Determinations Pursuant to Security Documents. In each
circumstance where, under any provision of a Security Document or this
Agreement, the Collateral Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by the
Collateral Agent under such Security Document, the Collateral Agent shall act in
respect of such consent, exercise of remedies, determination or action, as the
case may be, only with the consent of and at the direction of the Required
Lenders; provided, however, that no such consent of the Required Lenders shall
be required with respect to any consent, determination or other matter that is,
in Collateral Agent's reasonable judgment, ministerial or administrative in
nature or provided for in this Agreement, and provided that the Collateral Agent
is hereby authorized on behalf of all of the Lenders, without the necessity of
any further consent from any Lender, from time to time prior to an Event of
Default, to release portions of the Collateral from the security interests and
Liens imposed by the Security Documents in connection with any dispositions of
such portions of the Collateral permitted by the terms of
<PAGE>
this Agreement or as may be required by law. In each circumstance where any
consent of or direction from the Required Lenders is required, the Collateral
Agent shall send to the Lenders a notice setting forth a description in
reasonable detail of the matter as to which consent or direction is requested
and the Collateral Agent's proposed course of action with respect thereto. In
the event the Collateral Agent shall not have received a response from any
Lender within five Business Days after the giving of such notice (unless such
notice is given by mail, in which case 10 Business Days after the giving of such
notice), such Lender shall be deemed to have agreed to the course of action
proposed by the Collateral Agent, provided that such notice states that a
failure to respond shall have the consequences specified in this sentence.
ARTICLE IX
COLLECTION ALLOCATION MECHANISM
SECTION 9.01. Implementation of CAM. On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Article VII and (ii) the Lenders shall automatically and without
further act be deemed to have exchanged interests in the Credit Facilities such
that in lieu of the interest of each Lender in each Credit Facility in which it
shall participate as of such date (including such Lender's interest in the
principal, reimbursement, interest and Fee obligations of each Credit Party in
respect of each such Credit Facility), such Lender shall hold an interest in
every one of the Credit Facilities (including the principal, reimbursement,
interest and Fee obligations of each Credit Party in respect of each such Credit
Facility and each L/C Reserve Account established pursuant to Section 9.02
below), whether or not such Lender shall previously have participated therein,
equal to such Lender's CAM Percentage thereof. Each Lender, each person
acquiring a participation from any Lender as contemplated by Section 10.04(f)
and each Credit Party hereby consents and agrees to the CAM Exchange. Each
Credit Party agrees from time to time to execute and deliver to the
Administrative Agent all such Notes and other instruments and documents as the
Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any Notes originally received by it in
connection with its Loans hereunder to the Administrative Agent against delivery
of any Notes so executed and delivered; provided, however, that the failure of
any Credit Party to execute or deliver or of any Lender to accept any such Note,
instrument or document shall not affect the validity or effectiveness of the CAM
Exchange.
SECTION 9.02. Letters of Credit. (a) In the event that on the CAM Exchange
Date any Letter of Credit shall be outstanding and undrawn in whole or in part,
or any amount drawn under a Letter of Credit shall not have been reimbursed
either by the applicable Account Party or with the proceeds of a Revolving
Credit Borrowing, each Lender which shall on such date, and before giving effect
to the CAM Exchange, have held a participation in such Letter of Credit pursuant
to Section 2.19(d) shall promptly pay over to the Administrative Agent, in
immediately available funds in the currency in which such Letter of Credit is
denominated, an amount equal to such Lender's Applicable Percentage of such
undrawn face amount or such unreimbursed drawing, as the case may be, together
with interest thereon from the CAM Exchange Date to the date on which such
amount shall be paid to the Administrative Agent at the rate that would be
applicable at the time to a Swingline Loan in a principal amount equal to such
amount and denominated in the relevant currency. The Administrative Agent shall
establish a separate account or accounts for each Lender for the amounts
received with respect to each such Letter of Credit from each Lender paying such
amounts pursuant to the preceding sentence. The Administrative Agent shall have
sole dominion and control over each such account (each, an "L/C Reserve
Account"), and the amounts deposited in each L/C Reserve Account shall be held
in such L/C Reserve Account until withdrawn as provided in paragraph (b), (c),
(d) or (e) below. The Administrative Agent shall maintain records enabling it to
determine the amounts paid over to it and deposited in the L/C Reserve Accounts
in respect to each Letter of Credit and the amounts on deposit in respect of
each Letter of Credit attributable to each Lender's CAM Percentage (the
aggregate of such amounts attributable to a Lender's CAM Percentage being
referred to as such Lender's "CAM Account"). The amounts paid by a Lender to the
Administrative Agent pursuant to this paragraph shall be held as a reserve
against the L/C Exposures, shall be the property of such Lender, shall not
constitute Loans to any Borrower and shall not give rise to any obligation on
the part of any Borrower to pay interest to such Lender, it being agreed that
the
<PAGE>
Borrowers' reimbursement obligations in respect of Letters of Credit shall arise
only at such times as drawings are made thereunder, as provided in Section 2.19.
(b) In the event that after the CAM Exchange Date any drawing shall be made
in respect of a Letter of Credit, the Administrative Agent shall, at the request
of the applicable Issuing Bank, withdraw from the L/C Reserve Account of each of
the Lenders (and from the respective CAM Accounts of each of the Lenders, in
accordance with each Lender's CAM Percentage) any amounts, up to the amount of
such drawing, deposited in respect of such Letter of Credit and remaining on
deposit and deliver such amounts to such Issuing Bank in satisfaction of the
reimbursement obligations of the Lenders under Section 2.19(d) (but not of the
applicable Borrower under Section 2.19(e)). In the event any Lender shall
default on its obligation to pay over any amount to the Administrative Agent in
respect of any Letter of Credit as provided in this Section 9.02, the Issuing
Bank in respect of such Letter of Credit shall, in the event of a drawing
thereunder, have a claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Section 2.19(d), but shall have no
claim against any other Lender, notwithstanding the exchange of interests in the
applicable Account Party's reimbursement obligations pursuant to Section 9.01.
Each other Lender shall have a claim against such defaulting Lender for any
damages sustained by it as a result of such default, including, in the event
such Letter of Credit shall expire undrawn, its CAM Percentage of the defaulted
amount.
(c) In the event that after the CAM Exchange Date any Letter of Credit
shall expire undrawn, the Administrative Agent shall withdraw from the L/C
Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit and distribute such amount to such Lender.
(d) With the prior written approval of the Administrative Agent and the
applicable Issuing Bank (not to be unreasonably withheld), any Lender may
withdraw the amount held in its L/C Reserve Account in respect of the undrawn
amount of any Letter of Credit. Any Lender making such a withdrawal shall be
unconditionally obligated, in the event there shall subsequently be a drawing
under such Letter of Credit, to pay over to the Administrative Agent, for the
account of the applicable Issuing Bank, on demand, its CAM Percentage of such
drawing.
(e) Pending the withdrawal by any Lender of any amounts from its CAM
Account as contemplated by the above paragraphs, the Administrative Agent will,
at the direction of such Lender and subject to such rules as the Administrative
Agent may prescribe for the avoidance of inconvenience, invest such amounts in
Cash Equivalents or Foreign Cash Equivalents. Each Lender which has not
withdrawn its CAM Percentage of amounts in its L/C Reserve Account as provided
in paragraph (d) above shall have the right, at intervals reasonably specified
by the Administrative Agent, to withdraw the earnings on investments so made by
the Administrative Agent with amounts in its CAM Account and to retain such
earnings for its own account.
<PAGE>
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Payment of Expenses, etc. (a) Whether or not any of the
transactions contemplated hereby shall be consummated, ASI agrees to pay
promptly (i) all the actual costs and expenses of preparation of this Agreement
and each of the other Credit Documents, including any amendments or supplements
thereto, and all the costs of furnishing all opinions by counsel for, or on
behalf of, the Credit Parties or the Lenders (including any opinions requested
by the Lenders as to any legal matters arising hereunder or under any of the
other Credit Documents), and of the Credit Parties' performance of and
compliance with all agreements and conditions contained herein or in any of the
other Credit Documents on their part to be performed or complied with; (ii) the
reasonable fees and expenses of Cravath, Swaine & Moore and one local or foreign
counsel to the Lenders in each local or foreign jurisdiction in connection with
the negotiation, preparation, execution and administration of this Agreement and
the other Credit Documents, including any amendments or supplements thereto, and
the Loans hereunder and the issuance of Letters of Credit hereunder; (iii) the
fees, costs and expenses of creating, perfecting and maintaining Liens pursuant
to any of the Credit Documents, including filing and recording fees and
expenses, title insurance, reasonable fees and expenses of counsel (including
one local or foreign counsel in each local or foreign jurisdiction) to the
Lenders and the reasonable fees and expenses of any agent or trustee appointed
pursuant to Section 8.07; and (iv) the fees, costs and expenses (including
reasonable fees and expenses of counsel, including any local and foreign counsel
and allocated costs of internal counsel, and costs of settlements and of any
other experts or advisors) incurred by or on behalf of any Lender in enforcing
any Obligations of or in collecting any payments due from any Credit Party
hereunder or under any of the other Credit Documents by reason of any Default or
Event of Default or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement or the other Credit Documents
in the nature of a "work-out" or of any insolvency or bankruptcy proceedings or
otherwise.
(b) In addition to the payments pursuant to Section 10.01(a), whether or
not any of the transactions contemplated hereby shall be consummated, ASI agrees
(and, insofar as it is responsible for the indemnified liability in question,
each Borrower also agrees) to pay and indemnify and hold harmless each of the
Agents and each Lender and Issuing Bank, and the officers, directors, employees,
agents, advisors and affiliates of each of them (collectively, the
"Indemnitees") from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever other than in respect of taxes
(including the reasonable fees and expenses of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), which may be imposed on, incurred by, or asserted or threatened
against that Indemnitee, in any manner relating to or arising out of this
Agreement or the other Credit Documents, the Lenders' or the Issuing Banks'
agreements to make the Loans or issue or participate in the Letters of Credit
hereunder or the use or intended use of the proceeds of any of the Loans
hereunder or of any of the Letters of Credit (the "indemnified liabilities");
provided that neither ASI nor any other Borrower shall have any obligation to an
Indemnitee hereunder to the extent it is finally judicially determined that such
indemnified liabilities arise solely from the gross negligence or willful
misconduct of such Indemnitee. To the extent that the undertaking to pay,
indemnify and hold harmless set forth in the preceding sentence may be
unenforceable, ASI shall contribute the maximum portion which it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all
indemnified liabilities incurred by the Indemnitees or any of them.
SECTION 10.02. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time and from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Lender (including by branches and agencies of
such Lender wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of such Credit
Party to such Lender under this Agreement or under any of the other Credit
Documents, including all interests in Obligations of such
<PAGE>
Credit Party purchased by such Lender pursuant to Section 2.16, and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Lender shall have made any demand hereunder or thereunder or whether said
Obligations, liabilities or claims, or any of them, are contingent or unmatured.
SECTION 10.03. Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telecopy or cable communications) and telecopied or delivered, if to
a Credit Party, at the address specified opposite such Credit Party's signature
below; if to the Administrative Agent or any Lender, at its address specified in
Schedule II; or at such other address as shall be designated by any party in a
written notice to the other parties hereto; provided that all notices to any
Credit Party by any Lender or the Administrative Agent or Collateral Agent may
be delivered to such Credit Party in care of ASI at ASI's address. All such
notices and communications shall be effective when delivered to a reputable
overnight courier or sent by telecopier, except that notices and communications
to the Administrative Agent or any Lender shall not be effective until received.
SECTION 10.04. Benefit of Agreement. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Borrowers, the Administrative Agent or the Lenders that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more banks or other financial
institutions all or a portion of its interests, rights and obligations under
this Agreement (including all or a portion of any of its Commitments and the
Loans at the time owing to it); provided, however, that (i) except in the case
of an assignment to an Affiliate of such Lender or a transfer of interests as
part of the CAM Exchange, ASI (and (x) in the case of an assignment of a U.S. $
Revolving Credit Commitment, the Issuing Banks and (y) in the case of a
Multi-Currency Revolving Credit Commitment, the Issuing Banks and the Swingline
Lender) must give their prior written consent to such assignment (which consent
will not be unreasonably withheld), (ii) unless ASI shall otherwise agree, the
amount of the Loans and Commitments (excluding Swingline Loans and Swingline
Commitments) of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $10,000,000 (or
the remaining amount of such Lender's Loans and Commitments), (iii) the parties
to each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with the Note or Notes subject to such
assignment and a processing and recordation fee of $3,500 (provided that payment
of such fee shall not be required in the case of a CAM Exchange or an assignment
by a Lender to an Affiliate of such Lender or an assignment described in
paragraph (h) below), (iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire and (v)
after the CAM Exchange Date, each such assignment shall be of a single, and not
a varying, percentage of all the assigning Lender's rights and obligations under
this Agreement. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof unless ASI and the Administrative Agent shall otherwise
agree to an earlier date, which earlier date shall not precede the date of such
acceptance and recording, (A) the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement, other than any obligation it may have under Section 2.18(g) (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto (but shall continue to be entitled to
the benefits of Sections 2.12, 2.14, 2.18, 10.01 and 10.05, as well as to any
Fees accrued for its account hereunder and not yet paid)).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
<PAGE>
Commitments, andthe outstanding balances of its Loans, in each case without
giving effect toassignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Credit Document or any other instrument or document
furnished pursuant hereto or thereto, or the financial condition of any Borrower
or any Subsidiary thereof or the performance or observance by any Borrower or
any Subsidiary thereof of any of its obligations under this Agreement, any other
Credit Document or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 5.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v)
such assignee will independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Credit Documents as are delegated to the
Administrative Agent and the Collateral Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender. In the case of any assignment to an Affiliate of the assigning
Lender, such Lender will also represent in the Assignment and Acceptance that
such assignment is being made for a valid business purpose, specifying the same
in reasonable detail if requested by ASI, and is not inconsistent with the
obligations of such Lender under Section 2.22(b).
(d) The Administrative Agent, acting for this purpose as an agent of each
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register absent
manifest error shall be conclusive and the Borrowers, the Administrative Agent
and the Lenders shall treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement. All payments under the Credit Documents in respect of principal or
interest shall be made to the appropriate person named in the Register and
recorded in the Register. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee together with the Note or Notes subject
to such assignment, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and, if
required, the written consent of ASI, the Administrative Agent, the Issuing
Banks and the Swingline Lender to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders. No assignment shall be effective unless it has been recorded in the
Register as provided in this paragraph (e). Within five Business Days after
receipt of notice, (i) the Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent new Notes, if requested by such assignee,
payable to the order of such assignee (or, if such assignee shall so request, to
such assignee and registered assigns) representing Loans made pursuant to the
Commitments assumed by it or Term Loans acquired by it, as the case may be,
pursuant to such Assignment and Acceptance and (ii) the assigning Lender, if it
shall cease to be a party hereto as provided in paragraph (a) above, shall
deliver the Notes, if previously issued, held by it to ASI for cancellation by
the appropriate Borrower. The new Notes delivered to such assignee and its
registered assigns shall be dated the Effective Date and shall otherwise be in
substantially the form of the appropriate Exhibit or Exhibits hereto.
<PAGE>
(f) Each Lender may without the consent of the Borrowers or the
Administrative Agent or any Issuing Bank or the Swingline Lender sell
participations to one or more banks or other financial institutions in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of any of its Commitments and the Loans owing to it); provided, however,
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) any participating bank or other
financial institution shall be entitled to the benefit of the cost protection
and other provisions contained in Sections 2.12, 2.14, 2.18 and 10.01 to the
same extent as if it were a Lender provided that it shall not be entitled to
receive any more than the selling Lender would have received had it not sold the
participation unless and to the extent that the additional amount (x) is the
result of a change in applicable law, regulation or treaty, or the
interpretation or administration of any of the foregoing by any authority
charged with the administration or interpretation thereof, or court of competent
jurisdiction, subsequent to the date of the sale of the participation to such
bank or other financial institution or (y) results from or is occasioned by any
action or actions of the applicable Borrower subsequent to the date of such sale
(other than a change of the applicable Borrower pursuant to a Periodic Access
Borrowing or Revolving Credit Borrowing or by virtue of assignments and
transfers among the Borrowers of Term Loans) and (iv) the Borrowers, the
Administrative Agent, the Swingline Lender, the Issuing Banks and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrowers and the other Credit Parties relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers referred to in the first proviso appearing
in Section 10.10(b), but in each case only to the extent that the participating
bank or other entity would be affected thereby) or any other Credit Document.
For purposes of clause (iii) of the preceding sentence, a change shall not be
considered a change subsequent to the date of sale if such change was (x)
proposed or pending on or prior to the date of sale and subsequently enacted in
materially the same form within one year of the date such change was proposed or
pending or (y) enacted on or prior to the date of sale.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers and the other Credit
Parties furnished to such Lender by or on behalf of the Borrowers; provided
that, prior to any such disclosure of information designated by the Borrowers as
confidential, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the Notes issued to it to a Federal Reserve Bank to
secure extensions of credit by such Federal Reserve Bank to such Lender;
provided that no such assignment shall release a Lender from any of its
obligations hereunder.
(i) In determining whether to give its consent to an assignment pursuant to
this Section 10.04, ASI shall not take into account whether or not such
assignment would result in increased costs under Section 2.12, 2.14, 2.18 or
10.01 unless such assignment would result in an increase of at least 1.00% per
annum in the aggregate borrowing cost associated with the Loans or Commitments
subject to such assignment.
(j) In exercising its right to assign its interests hereunder to one or
more Affiliates or to cause one or more branches or Affiliates to make Loans on
its behalf as contemplated by Section 2.02(b), each Lender agrees to endeavor in
good faith to avoid increased costs or withholding taxes for which ASI has
agreed to reimburse the Lenders hereunder to the extent such avoidance does not
result in costs for which such Lender shall not be entitled to reimbursement
hereunder and is not, in the judgment of such Lender, otherwise disadvantageous
to it.
(k) Other than as expressly permitted hereunder, the Borrowers shall not
assign or delegate any of their rights or duties hereunder.
<PAGE>
SECTION 10.05. No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Lender or any holder of a Note or any
Issuing Bank or the Collateral Agent in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and the Administrative Agent, any Lender or the holder of any
Note or any Issuing Bank or the Collateral Agent shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein and in the other
documents expressly provided are cumulative and not exclusive of any rights or
remedies which the Administrative Agent, or any Lender or any Issuing Bank or
the Collateral Agent, would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent, any Lender or the holder of any Note or any Issuing
Bank or the Collateral Agent to any other or further action in any circumstances
without notice or demand.
SECTION 10.06. Calculations; Computations. (a) To the extent that the
determination of compliance with any covenant contained herein or other
provision hereof requires the conversion to Dollars of foreign currency amounts,
such Dollar amount shall be the Dollar Equivalent of the amount of such foreign
currency at the time such item is to be calculated or is to be or was incurred,
created or suffered or permitted to exist or assumed or transferred or sold for
purposes of this Agreement (except if such item was incurred, created or
assumed, or suffered or permitted to exist or transferred or sold prior to the
date hereof, such conversion shall be made based on the Dollar Equivalent of the
amounts of such foreign currency at the date hereof); provided that in
determining Consolidated Rental Payments for purposes of Section 6.06,
Indebtedness or purchase price for purposes of Section 6.04, rental payments,
Indebtedness and purchase price incurred in currencies other than Dollars for
local operations and in the ordinary course of business shall be converted into
Dollars at the Dollar Equivalent determined as of the Effective Date, except
that, with respect to "Highly Inflationary Countries" (as defined in Financial
Accounting Standards Board No. 52), such determinations shall be made using the
Dollar Equivalent at the time such item was incurred, created or suffered or
permitted to exist or assumed or transferred or sold for purposes of this
Agreement.
(b) Notwithstanding anything herein to the contrary, but without prejudice
to the first sentence of Section 10.07(a), if at any time the applicable
interest rate, together with all fees and charges which are treated as interest
under applicable law (collectively the "Charges"), as provided for herein or in
any other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable, together with all Charges payable to such Lender, shall be
limited to the Maximum Rate.
SECTION 10.07. Governing Law; Submission to Jurisdiction; Venue. (a) This
Agreement and the other Credit Documents (other than Letters of Credit and other
than as expressly set forth in the other Credit Documents) and the rights and
obligations of the parties hereunder and thereunder shall be construed in
accordance with and governed by the laws of the State of New York. Each Letter
of Credit shall be governed by, and shall be construed in accordance with, the
laws or rules designated in such Letter of Credit, or if no such laws or rules
are designated, the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce, Publication No. 500 (the "Uniform
Customs") and, as to matters not governed by the Uniform Customs, the laws of
the State of New York. Any legal action or proceeding with respect to this
Agreement or any other Credit Document may be brought in the courts of the State
of New York or of the United States for the Southern District of New York, and
by execution and delivery of this Agreement (including by execution and delivery
of a Guarantee), each Credit Party hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Credit Party further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the respective Credit Party at its address for notices
pursuant to Section 10.03, such service to become effective 15 days after such
mailing, and each Credit Party residing outside of the State of New York hereby
irrevocably appoints ASI at the following address as its agent for service of
process out of any of
<PAGE>
the aforementioned courts: American Standard Inc., 15 West 54th Street, New
York, NY 10019, Attention: Legal Department. Nothing herein shall affect the
right of the Administrative Agent, any Lender or the holder of any Note or any
Issuing Bank or the Collateral Agent to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
SECTION 10.08. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with ASI and the
Administrative Agent.
SECTION 10.09. Headings Descriptive; Entire Agreement. (a) The headings of
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
(b) This Agreement and the other Credit Documents and the other agreements
or documents specifically referred to herein constitute the entire agreement
among the parties hereto and thereto regarding the subject matter hereof and
thereof and supersede all prior agreements, representations and understandings
relating to such subject matter.
SECTION 10.10. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender, any Issuing Bank or the Collateral Agent in
exercising any power or right hereunder or under any other Credit Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders, the Issuing Banks and the Collateral Agent
hereunder and under the other Credit Documents are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Credit Document or consent to
any departure by any Credit Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any Credit Party in any case shall
entitle such Credit Party to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any other Credit Document, nor any provision
hereof or thereof, may be waived, amended or modified (including by the release
of any Obligations of any Credit Party under a Credit Document) except pursuant
to an agreement or agreements in writing entered into by, or approved in writing
by, ASI, any other affected Borrower and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date (it being
understood that, for purposes of this clause, principal payments required by
Section 2.06 and reductions of the Periodic Access Loan Commitments required by
Section 2.10(b), and any related principal payments required by paragraph
(b)(ii) of Section 2.11, shall constitute scheduled principal payments; but
principal payments required by paragraphs (b)(i) and (iii), (c), (d) and (e) of
Section 2.11 shall not constitute scheduled principal payments) or date for the
payment of any interest in respect of, any Loan, or any date for reimbursement
of an L/C Disbursement, or waive or excuse any such payment or any part thereof,
or decrease the rate of interest on any Loan or L/C Disbursement, without the
prior written consent of each Lender affected thereby, (ii) increase the amount
of any Commitment of or impose any additional obligations on any Lender without
the prior written consent of such Lender, or extend any Commitment or decrease
the Fees of any Lender without the prior written consent of such Lender, (iii)
amend or modify the provisions of Section 2.15, the provisions of this Section
or the definition of "Required Lenders", without the prior written consent of
each affected Lender,
<PAGE>
(iv) change the allocation among the Lenders of any prepayment made under
Section 2.11 without the prior written consent of each Lender affected thereby
(provided that this clause (iv) shall not be construed to require any consent,
other than the consent of the Required Lenders or any consent expressly required
by clause (i) above, to an agreement that would change the amount of, or extend
the date for, or waive or excuse, any such prepayment or that would permit any
new tranche of Indebtedness incurred hereunder to share not more than ratably in
any such prepayment), (v) effect the release of any Lien granted under any
Security Document with respect to any Collateral with a book value in excess of
$50,000,000 during any fiscal year or $100,000,000 during the term of this
Agreement (in each case net of any released Collateral which shall subsequently
have been re-pledged under the Security Documents), other than as permitted
under the Credit Documents, or effect the release of any of ASI, the other
Borrowers, or any other Credit Party, collectively or individually, from any
monetary obligations under the Credit Documents (except as permitted under the
Credit Documents, or under circumstances where any Credit Party to be released
would not have been required to issue a Supplemental Guarantee under Section
5.12 if the facts on the date of release had existed immediately prior to the
incurrence by such Credit Party of the obligations to be released), in each case
without the prior written consent of each Lender or as permitted under the
Credit Documents, (vi) amend Article IX in a manner adverse to any Lender
without the consent of such Lender or (vii) effect any waiver, amendment or
modification that by its terms adversely affects the rights of Lenders
participating in certain of the Credit Facilities differently from those of
Lenders participating in other Credit Facilities, without the consent of a
majority in interest of the Lenders participating in the adversely affected
Credit Facilities or change the relative rights of the Lenders participating in
different Credit Facilities (other than as contemplated by clause (iv) above)
without the consent of a majority in interest of Lenders participating in each
adversely affected Credit Facility; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or any Issuing Bank or the Swingline Lender hereunder or of
the Collateral Agent under any Security Document without the prior written
consent of the Administrative Agent or such Issuing Bank, the Swingline Lender
or the Collateral Agent, as the case may be. Each Lender shall be bound by any
waiver, amendment or modification authorized by this Section regardless of
whether any Note held by it shall have been marked to make reference thereto,
and any consent by any Lender pursuant to this Section shall bind any person
subsequently acquiring a Note from it, whether or not such Note shall have been
so marked.
(c) Notwithstanding the foregoing, any Security Document may, and upon the
request of ASI shall, be amended or modified, without the necessity of any
further approval, in order to effect the release of the Liens granted under the
Security Documents with respect to any Collateral that is being sold or
otherwise disposed of to a person other than Holding, ASI or a Subsidiary
thereof (or to ASI or any Subsidiary to the extent expressly contemplated by
Section 6.02) in a transaction permitted by this Agreement. Upon the request of
ASI, the Collateral Agent will, at ASI's expense, confirm any such release in
writing, but without representation or warranty. In the event ASI shall request
that the Collateral Agent subordinate the Lien of any Mortgage to an easement
over a portion of the affected Real Property granted to any public utility,
private utility, private utility company or similar entity for the purpose of
installing or maintaining utility lines or a similar function, the Collateral
Agent shall grant such subordination if ASI (i) shall have made such request in
a written application to the Collateral Agent signed by an officer of ASI (who
would be permitted to sign an Officers' Certificate), which application shall be
accompanied by the form of the instrument of subordination which the Collateral
Agent is requested to execute, and (ii) shall have certified that, and provided
documentation satisfactory to the Collateral Agent that, such easement is
necessary for the efficient conduct of the mortgagor's business at the affected
Real Property and such subordination will not impair the value of such Real
Property or the security afforded by the applicable Mortgage. In the event ASI
shall request that the Collateral Agent subordinate the Lien of the Domestic
Security Agreement on assets acquired by ASI or any Subsidiary in connection
with the purchase of sales offices from third parties to Liens securing purchase
money Indebtedness incurred to finance the purchase of such assets, the
Collateral Agent shall grant such subordination.
(d) Notwithstanding the foregoing, any Swingline Loan Agreement or Issuing
Bank Agreement may be waived, amended or modified by the parties thereto with
the written approval of the Administrative Agent if and to the extent that such
waiver, amendment or modification would be permitted in connection with the
execution and delivery of a replacement of such agreement.
<PAGE>
SECTION 10.11. Survival. (a) All representations and warranties made herein
and in the other Credit Documents shall survive the execution and delivery of
this Agreement and the other Credit Documents, the making of the Loans hereunder
and the execution and delivery of any Notes issued and the issuance of the
Letters of Credit.
(b) Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of the Borrowers set forth in Sections 2.12, 2.14, 2.18
and 10.01 shall survive the repayment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amount drawn
thereunder and the termination of this Agreement.
SECTION 10.12. Severability. In case any provision in or obligation under
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 10.13. Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 10.14. Judgment Currency. (a) The Borrowers' obligations hereunder
and under the other Credit Documents to make payments in Dollars or in any
Alternative Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender under this
Agreement or the other Credit Documents. If, for the purpose of obtaining or
enforcing judgment against any Borrower or any other Credit Party in any court
or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made, at the Alternative Currency
Equivalent or Dollar Equivalent, in the case of any Alternative Currency or
Dollars, and, in the case of other currencies, the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a rate
of exchange on such currency, by a known dealer in such currency designated by
the Administrative Agent) determined, in each case, as of the date immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrowers covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Alternative Currency Equivalent or
Dollar Equivalent or rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
SECTION 10.15. Confidentiality. Each Lender agrees (which agreement shall
survive the termination of this Agreement) that financial information,
information from any Borrower's books and records, information concerning any
Borrower's trade secrets and patents and any other information received from the
Borrowers hereunder which at the time of receipt is clearly labeled as
confidential and subject to this Section 10.15 shall be treated as confidential
by such Lender, and each Lender agrees to use its best efforts to ensure that
such information is not published, disclosed or otherwise divulged to anyone
other than employees or officers of such Lender and its counsel and agents;
provided it is understood that the foregoing shall not apply to:
<PAGE>
(i) disclosure made with the prior written authorization of a Borrower;
(ii) disclosure of information (other than that received from the Borrowers
prior to or under this Agreement) already known by, or in the possession of such
Lender without restrictions on the disclosure thereof at the time such
information is supplied to such Lender by the Borrowers hereunder;
(iii) disclosure of information which is required by applicable law or legal
process or to a governmental agency having supervisory authority over any party
hereto;
(iv) disclosure of information to the extent necessary or advisable in
connection with any suit, action or proceeding in connection with the
enforcement of rights hereunder or under any other Credit Document or in
connection with the transactions contemplated hereby or thereby;
(v) disclosure to any bank (or other financial institution) which may
acquire a participation or other interest in the Loans or rights of any Lender
hereunder or under the other Credit Documents; provided that such bank (or other
financial institution) agrees to maintain any such information to be received in
accordance with the provisions of this Section 10.15;
(vi) disclosure by any party hereto to any other party hereto or their
counsel or agents;
(vii) disclosure by any party hereto to its Affiliates subject to the
confidentiality obligations of this Section; or
(viii) disclosure of information that prior to such disclosure has become
public knowledge through no violation of this Agreement.
<PAGE>
SECTION 10.16. Negotiation in the Event of Certain Tax Law Changes. Each of
ASI, each other Borrower and each Lender agrees that in the event any change in
the tax laws of any jurisdiction outside the United States shall limit the
deductibility of interest on any of the Loans in determining the taxable income
of ASI or any Subsidiary, it will, at the request of ASI, negotiate in good
faith with the other parties hereto with a view to agreeing in a timely manner
upon changes acceptable in good faith to ASI and the Required Lenders to the
Credit Documents and the guarantee and collateral arrangements provided for
herein that would restore such deductibility without imposing any material
additional risk upon any party hereto or any fee or other similar cost on ASI.
Notwithstanding any provision of Section 10.10(b) to the contrary, any changes
contemplated by the preceding sentence shall be effected by a waiver, amendment
or modification entered into by, or approved in writing by, ASI, any other
affected Borrower and the Required Lenders.
SECTION 10.17. Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement or any of the other Credit Documents.
Each party hereto (a) certifies that no representative, agent or attorney or any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement and the other Credit Documents, as applicable, by, among
other things, the mutual waivers and certifications in this Section 10.17.
SECTION 10.18. Miscellaneous. For the purposes of disclosure pursuant to
the Interest Act (Canada) the yearly rate of interest to which any rate of
interest calculated on the basis of a year of 360 days is equivalent may be
determined by multiplying the applicable rate by a fraction, the numerator of
which is the number of days in the calendar year in which the period for which
interest at such rate is payable ends and the denominator of which is 360.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
Notice Address: AMERICAN STANDARD COMPANIES INC.,
One Centennial Avenue
Piscataway, NJ 08855
Attention: Treasurer /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
BORROWERS:
Notice Address: AMERICAN STANDARD INC.,
One Centennial Avenue
Piscataway, NJ 08855 by
Attention: Treasurer /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
Notice Address: AMERICAN STANDARD CREDIT INC.,
13-15 West 54th Street
New York, NY 10019 by
Attention: Secretary /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
<PAGE>
*Notice Address: WABCO STANDARD GMBH,
Euskirchener Strasse 80
5300 Bonn 1, Germany by
Attention: Director Finance /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Attorney-in-Fact
*Notice Address: AMERICAN STANDARD (UK)
LIMITED,
90 Newbold Road
Rugby, Warwickshire by
CV21 2ND /s/ Thomas S. Battaglia
UNITED KINGDOM Name: Thomas S. Battaglia
Attention: Vice President and General Manager Title: Attorney-in-Fact
*Notice Address: STANDARD EUROPE, a European
Economic Interest Grouping,
c/o WABCO Westinghouse
Equipments Automobiles by
Avenue Aristide Briand 44 /s/ Thomas S. Battaglia
77411 Claye-Souilly Name: Thomas S. Battaglia
FRANCE Title: Attorney-in-Fact
Attention: Director Finance and Administration
*Notice Address: WABCO STANDARD TRANE INC.,
1401 Dupont Street
Toronto, Ontario by
CANADA M6H 2B1 /s/ Thomas S. Battaglia
Attention: Vice President Control and Finance Name: Thomas S. Battaglia
Title: Authorized Signing
Officer
*Notice Address: WABCO STANDARD TRANE B.V.,
Jupiterstraat 254
2132 HK Hoofddorp by
The Netherlands /s/ Thomas S. Battaglia
Attention: Managing Director Name: Thomas S. Battaglia
Title: Attorney-in-Fact
ADMINISTRATIVE AGENT:
CHEMICAL BANK, individually and as
Administrative Agent,
by
/s/ Robert Gaynor
Name: Robert Gaynor
Title: Vice President
<PAGE>
SENIOR MANAGING AGENTS:
CITIBANK, N.A., individually and as Senior
Managing Agent,
by
/s/ Judith C. Fishlow
Name: Judith C. Fishlow
Title: Vice President
NATIONSBANK, N.A. (CAROLINAS),
individually and as Senior Managing Agent,
by
/s/ Christopher C. Browder
Name: Christopher C. Browder
Title: Vice President
MANAGING AGENTS:
BANK OF AMERICA ILLINOIS, individually and
as Managing Agent,
by
/s/ Phillip F. Van Winkle
Name: Phillip F. Van Winkle
Title: Vice President
THE BANK OF NOVA SCOTIA, individually and
as Managing Agent,
by
/s/ J. W. Campbell
Name: J. W. Campbell
Title: Vice President/Agent
BANKERS TRUST COMPANY, individually and as
Managing Agent,
by
/s/ Mary Kay Coyle
Name: Mary Kay Coyle
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.,
individually and as Managing Agent,
by
/s/ Carol A. Ulmer
Name: Carol A. Ulmer
Title: Vice President
<PAGE>
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, individually and as
Managing Agent,
by
/s/ Sean Mounier
Name: Sean Mounier
Title: First Vice President
by
/s/ Brian O'Leary
Name: Brian O'Leary
Title: Vice President
CREDIT SUISSE, individually and as Managing
Agent,
by
/s/ Andrea Shkane
Name: Andrea Shkane
Title: Associate
by
/s/ Christopher J. Eldin
Name: Christopher J. Eldin
Title: Member of Senior Management
DEUTSCHE BANK AG, New York and/or Cayman Islands Branch, individually and as
Managing Agent,
by
/s/ Christopher S. Hall
Name: Christopher S. Hall
Title: Vice President
by
/s/ Daphne K. Lee
Name: Daphne K. Lee
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY, individually and as Managing Agent,
by
/s/ Junri Oda
Name: Junri Oda
Title: Senior Vice President and Senior
Manager
THE LONG TERM CREDIT BANK OF JAPAN,
LIMITED, individually and as Managing Agent,
by
/s/ Rene O. LeBlanc
Name: Rene O. LeBlanc
Title: Deputy General Manager
<PAGE>
THE SUMITOMO BANK, LTD., individually and
as Managing Agent,
by
/s/ Yoshinori Kawamura
Name: Yoshinori Kawamura
Title: Joint General Manager
CO-AGENTS:
THE BANK OF NEW YORK, individually and as
Co-Agent,
by
/s/ Peter H. Abdill
Name: Peter H. Abdill
Title: Assistant Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as Co-Agent,
by
/s/ E. Lindsay Gordon
Name: E. Lindsay Gordon
Title: Authorized Signatory
THE FUJI BANK, LIMITED, individually and as
Co-Agent,
by
/s/ Katsunori Nozawa
Name: Katsunori Nozawa
Title: Vice President and Manager
THE SANWA BANK LIMITED, individually and as
Co-Agent,
by
/s/ Paul Judicke
Name: Paul Judicke
Title: Assistant Vice President
LENDERS:
BANCA COMMERCIALE ITALIANA,
by
/s/ Charles Dougherty
Name: Charles Dougherty
Title: Vice President
by
/s/ Sarah Kim
Name: Sarah Kim
Title: Assistant Vice President
<PAGE>
BANK OF SCOTLAND,
by
/s/ Catherine M. Oniffrey
Name: Catherine M. Oniffrey
Title: Vice President
BANQUE PARIBAS,
by
/s/ David C. Buseck
Name: David C. Buseck
Title: Vice President
by
/s/ Jeffrey J. Youle
Name: Jeffrey J. Youle
Title: Senior Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by
/s/ Frederick Haddad
Name: Frederick Haddad
Title: Senior Vice President
CREDITO ITALIANO,
by
/s/ Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President
by
/s/ Saiyed A. Abbas
Name: Saiyed A. Abbas
Title: Assistant Vice President
DRESDNER BANK AG, NEW YORK AND
CAYMAN BRANCHES,
by
/s/ Richard W. Conroy
Name: Richard W. Conroy
Title: Vice President
by
/s/ Andrew K. Mittag
Name: Andrew K. Mittag
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.,
by
/s/ Kimberly S. Kersten
Name: Kimberly S. Kersten
Title: Assistant Vice President
<PAGE>
THE HOKKAIDO TAKUSHOKU BANK, LTD.,
by
/s/ Hiromoto Ishizuka
Name: Hiromoto Ishizuka
Title: Vice President and Manager
THE MITSUBISHI BANK, LTD.,
by
/s/ Naoto Hirota
Name: Naoto Hirota
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by
/s/ Patricia Loret de Mola
Name: Patricia Loret de Mola
Title: Senior Vice President
NATIONAL CITY BANK,
by
/s/ Jeffrey J. Tengel
Name: Jeffrey J. Tengel
Title: Vice President
NBD BANK,
by
/s/ Timothy J. King
Name: Timothy J. King
Title: Assistant Vice President
THE SAKURA BANK, LIMITED,
by
/s/ Masahiro Nakajo
Name: Masahiro Nakajo
Title: Senior Vice President and Manager
SOCIETE GENERALE,
by
/s/ Salvatore Galatioto
Name: Salvatore Galatioto
Title: Vice President
THE SUMITOMO TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH,
by
/s/ Suraj P. Bhatia
Name: Suraj P. Bhatia
Title: Senior Vice President
<PAGE>
THE TORONTO-DOMINION BANK,
by
/s/ Kimberly Burleson
Name: Kimberly Burleson
Title: Manager Credit Administration
UNION BANK OF FINLAND, LTD.,
by
/s/ Pentti Mansukoski
Name: Pentti Mansukoski
Title: Senior Vice President
by
/s/ Eric I. Mann
Name: Eric I. Mann
Title: Vice President
UNITED STATES NATIONAL BANK OF
OREGON,
by
/s/ Chris J. Karlin
Name: Chris J. Karlin
Title: Vice President
<PAGE>
EXHIBIT A to the
Credit Agreement
FORM OF BORROWING REQUEST
Chemical Bank,
Administrative Agent
for the Lenders referred to below,
[270 Park Avenue
New York, NY 10017]
Attention: [Date]
Dear Sirs:
The undersigned (the "Borrower") refers to the Amended and Restated Credit
Agreement dated as of February 9, 1995 (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), among American Standard
Companies Inc., American Standard Inc., certain subsidiaries of American
Standard Inc., the Lenders, Senior Managing Agents, Managing Agents and Co-
Agents named therein, and Chemical Bank, as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 2.03 of the Credit Agreement that it requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the terms on which such Borrowing is requested to be made:
1.Name of Borrower: _____________________
2.Credit Facility under which Borrowing is to be made: _______________________ /
3.Interest Rate Option: ____________________ /
4.Funds are requested to be disbursed to the following:
Bank Name: ______________________________
Bank Address: ___________________________
For Credit to:
Account Name: ___________________________
Account Number: _________________________ /
5. Date of Borrowing (which is a Business Day): __________________
1/ $ U.S. Revolving Credit Borrowing; Multi-Currency Revolving Credit
Borrowing; Periodic Access Borrowing (only on Effective Date or during a
Periodic Access Availability Period); or Term Borrowing (only on Effective
Date).
2/ LIBOR Borrowing or (if denominated in Dollars or Lenders consent) ABR
Borrowing.
3/ See Section 2.02(c) of Credit Agreement.
<PAGE>
6. Principal Amount of Borrowing: ________________ /
7. Currency of Borrowing: ________________________ /
8. Interest Period (if a LIBOR Borrowing): __________________ /
Upon acceptance of any or all of the Loans made by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted
that the conditions to lending specified in Sections 4.01(b) and (c) of the
Credit Agreement have been satisfied.
Without limiting the foregoing, the Borrower shall further be deemed to
have represented, upon such acceptance, that on the basis of (i) such inquiries
as one or more Financial Officers of ASI shall have deemed necessary and (ii)
advice of counsel (which may be general advice or advice as to a particular
Borrowing), the requested Borrowing is permitted under the provisions limiting
Indebtedness in each Indenture to which ASI is party.
Very truly yours,
[NAME OF BORROWER],
by
-----------------------------
Title: [Responsible Officer]
--------
4/ Expressed in Dollars. See Section 2.02(a) of Credit Agreement for
restrictions.
5/ Dollars or an Alternative Currency; must be Dollars for Term Borrowings.
6/ Which shall be subject to the definition of "Interest Period" and end not
later than the applicable Maturity Date.
<PAGE>
EXHIBIT B-1
FORM OF TERM NOTE
New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [] corporation
(the "Borrower"), hereby promises to pay to [the order of [NAME OF LENDER]]
[[NAME OF LENDER] or registered assigns] (the "Lender"), at the office of
Chemical Bank (the "Administrative Agent"), at 270 Park Avenue, New York, New
York 10017 or such other place as the Administrative Agent shall have specified,
on the Term Facility Maturity Date (as defined in the Credit Agreement referred
to below), the aggregate unpaid principal amount of all Term Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, in Dollars, in same day
funds, and to pay interest from the date hereof on such principal amount from
time to time outstanding, in like funds, at said office, at a rate or rates per
annum and payable on such dates as determined pursuant to the Credit Agreement.
This Note is one of the Term Notes referred to in the Amended and Restated
Credit Agreement dated as of February 9, 1995 (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), among American Standard
Companies Inc., American Standard Inc., certain subsidiaries of American
Standard Inc., the Lenders, Senior Managing Agents, Managing Agents and
Co-Agents named therein, and Chemical Bank, as Administrative Agent. This Note
is entitled to the benefits under the Credit Agreement and is secured as
provided therein. Capitalized terms used in this Note and not defined herein are
used as defined in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments in respect of the principal of and interest on this Note shall
be made to the person named in the Register and recorded in the Register as the
holder of this Note, as described more fully in Section 10.04(d) of the Credit
Agreement, and such person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof, for the assignment hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA.
<PAGE>
[NAME OF BORROWER],
by ________________________________
Title:
<PAGE>
Loans and Payments
Date Amount Interest Payments Unpaid Name of
and Type Period Principal Interest Principal Person
of Loan Balance Making
of Note Notation
<PAGE>
EXHIBIT B-2
FORM OF PERIODIC ACCESS NOTE
New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [ ] corporation
(the "Borrower"), hereby promises to pay to [the order of [NAME OF LENDER]]
[[NAME OF LENDER] or registered assigns] (the "Lender"), at the office of
Chemical Bank (the "Administrative Agent"), at 270 Park Avenue, New York, New
York 10017 or such other place as the Administrative Agent shall have specified,
on the Periodic Access Maturity Date (as defined in the Credit Agreement
referred to below), the aggregate unpaid principal amount of all Periodic Access
Loans made by the Lender to the Borrower pursuant to the Credit Agreement, in
the respective currency or currencies in which such Periodic Access Loans were
made, in same day funds, and to pay interest from the date hereof on such
principal amount from time to time outstanding, in like funds, at said office,
at a rate or rates per annum and payable on such dates as determined pursuant to
the Credit Agreement. This Note is one of the Periodic Access Notes referred to
in the Amended and Restated Credit Agreement dated as of February 9, 1995 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among American Standard Companies Inc., American Standard Inc.,
certain subsidiaries of American Standard Inc., the Lenders, Senior Managing
Agents, Managing Agents and Co-Agents named therein, and Chemical Bank, as
Administrative Agent. This Note is entitled to the benefits under the Credit
Agreement and is secured as provided therein. Capitalized terms used in this
Note and not defined herein are used as defined in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments in respect of the principal of and interest on this Note shall
be made to the person named in the Register and recorded in the Register as the
holder of this Note, as described more fully in Section 10.04(d) of the Credit
Agreement, and such person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
<PAGE>
All borrowings evidenced by this Note and the currency or currencies in
which such borrowings were made and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof, for the assignment hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA.
[NAME OF BORROWER],
by________________________________
Title:
<PAGE>
Loans and Payments
Date Amount Interest Payments Unpaid Name of
and Type Period Principal Interest Principal Person
of Loan Balance Making
of Note Notation
<PAGE>
EXHIBIT B-3
FORM OF U.S. $ REVOLVING CREDIT NOTE
New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [ ] corporation
(the "Borrower"), hereby promises to pay to [the order of [NAME OF LENDER]]
[[NAME OF LENDER] or registered assigns](the "Lender"), at the office of
Chemical Bank (the "Administrative Agent"), at 270 Park Avenue, New York, New
York 10017 or such other place as the Administrative Agent shall have specified,
on (i) the last day of the Interest Period (as defined in the Credit Agreement
referred to below) in respect of each U.S. $ Revolving Credit Loan made by the
Lender to the Borrower pursuant to the Credit Agreement, the aggregate unpaid
principal amount of such U.S. $ Revolving Credit Loan, and (ii) the U.S. $
Revolving Credit Maturity Date (as defined in the Credit Agreement referred to
below), the aggregate unpaid principal amount of all U.S. $ Revolving Credit
Loans made by the Lender to the Borrower pursuant to the Credit Agreement, in
Dollars, in same day funds, and to pay interest from the date hereof on such
principal amount from time to time outstanding, in like funds, at said office,
at a rate or rates per annum and payable on such dates as determined pursuant to
the Credit Agreement. This Note is one of the U.S. $ Revolving Credit Notes
referred to in the Amended and Restated Credit Agreement dated as of February 9,
1995 (as amended, modified, extended or restated from time to time, the "Credit
Agreement"), among American Standard Companies Inc., American Standard Inc.,
certain subsidiaries of American Standard Inc., the Lenders, Senior Managing
Agents, Managing Agents and Co-Agents named therein, and Chemical Bank, as
Administrative Agent. This Note is entitled to the benefits under the Credit
Agreement and is secured as provided therein. Capitalized terms used in this
Note and not defined herein are used as defined in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments in respect of the principal of and interest on this Note shall
be made to the person named in the Register and recorded in the Register as the
holder of this Note, as described more fully in Section 10.04(d) of the Credit
Agreement, and such person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof, for the assignment hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA.
[NAME OF BORROWER],
by ________________________________
Title:
<PAGE>
Loans and Payments
Date Amount Interest Payments Unpaid Name of
and Type Period Principal Interest Principal Person
of Loan Balance Making
of Note Notation
<PAGE>
EXHIBIT B-4
FORM OF MULTI-CURRENCY REVOLVING CREDIT NOTE
New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [ ] corporation
(the "Borrower"), hereby promises to pay to [the order of [NAME OF LENDER]]
[[NAME OF LENDER] or registered assigns] (the "Lender"), at the office of
Chemical Bank (the "Administrative Agent"), at 270 Park Avenue, New York, New
York 10017 or such other place as the Administrative Agent shall have specified,
on (i) the last day of the Interest Period (as defined in the Credit Agreement
referred to below) in respect of each Multi-Currency Revolving Credit Loan made
by the Lender to the Borrower pursuant to the Credit Agreement, the aggregate
unpaid principal amount of such Multi- Currency Revolving Credit Loan, and (ii)
the Multi-Currency Revolving Credit Maturity Date (as defined in the Credit
Agreement referred to below), the aggregate unpaid principal amount of all
Multi-Currency Revolving Credit Loans made by the Lender to the Borrower
pursuant to the Credit Agreement, in each case in the respective currency or
currencies in which such Multi-Currency Revolving Credit Loans were made, in
same day funds, and to pay interest from the date hereof on such principal
amount from time to time outstanding, in like funds, at said office, at a rate
or rates per annum and payable on such dates as determined pursuant to the
Credit Agreement. This Note is one of the Multi-Currency Revolving Credit Notes
referred to in the Amended and Restated Credit Agreement dated as of February 9,
1995 (as amended, modified, extended or restated from time to time, the "Credit
Agreement"), among American Standard Companies Inc., American Standard Inc.,
certain subsidiaries of American Standard Inc., the Lenders, Senior Managing
Agents, Managing Agents and Co-Agents named therein, and Chemical Bank, as
Administrative Agent. This Note is entitled to the benefits under the Credit
Agreement and is secured as provided therein. Capitalized terms used in this
Note and not defined herein are used as defined in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments in respect of the principal of and interest on this Note shall
be made to the person named in the Register and recorded in the Register as the
holder of this Note, as described more fully in Section 10.04(d) of the Credit
Agreement, and such person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
All borrowings evidenced by this Note and the currency or currencies in
which such borrowings were made and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
<PAGE>
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof, for the assignment hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA.
[NAME OF BORROWER],
by ________________________________
Title:
<PAGE>
Loans and Payments
Date Amount Interest Payments Unpaid Name of
and Type Period Principal Interest Principal Person
of Loan Balance Making
of Note Notation
<PAGE>
EXHIBIT B-5
FORM OF SWINGLINE NOTE
New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [ ] corporation
(the "Borrower"), hereby promises to pay to [the order of [NAME OF LENDER]]
[[NAME OF LENDER] or registered assigns] (the "Lender"), at the office specified
in or pursuant to the Swingline Loan Agreement referred to below, the aggregate
unpaid principal amount of each Swingline Loan made by the Lender to the
Borrower pursuant to the Swingline Loan Agreement and the Credit Agreement
referred to below, in the currency in which such Swingline Loan was made, in
same day funds, on (i) the last day of the Interest Period (as defined in the
Credit Agreement referred to below) with respect to such Swingline Loan, and
(ii) the Multi-Currency Revolving Credit Maturity Date (as defined in the Credit
Agreement referred to below) and to pay interest from the date hereof on the
principal amount of such Swingline Loans from time to time outstanding, in like
funds, at said office, at a rate or rates per annum and payable on such dates as
determined pursuant to the Credit Agreement. This Note is one of the Swingline
Notes referred to in the Amended and Restated Credit Agreement dated as of
February 9, 1995 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among American Standard Companies Inc., American
Standard Inc., certain subsidiaries of American Standard Inc., the Lenders,
Senior Managing Agents, Managing Agents and Co-Agents named therein, and
Chemical Bank, as Administrative Agent. This Note evidences Swingline Loans made
by the Lender pursuant to the Credit Agreement and the Swingline Loan Agreement
dated as of June 1, 1993 (as amended, modified, extended or restated from time
to time, the "Swingline Loan Agreement"), between the Borrower and the Lender,
which supplements the Credit Agreement. This Note is entitled to the benefits
under the Credit Agreement and is secured as provided therein. Capitalized terms
used in this Note and not defined herein are used as defined in the Swingline
Loan Agreement and the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments in respect of the principal of and interest on this Note shall
be made to the person named in the register and recorded in the Register as the
holder of this Note, as described more fully in Section 10.04(d) of the Credit
Agreement, and such person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
All borrowings evidenced by this Note and the currency or currencies in
which such borrowings were made and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note, the Swingline Loan Agreement and the Credit Agreement.
<PAGE>
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof, for the assignment hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA.
[NAME OF BORROWER],
by _________________________________
Title:
<PAGE>
Loans and Payments
Date Amount Interest Payments Unpaid Name of
and Type Period Principal Interest Principal Person
of Loan Balance Making
of Note Notation
<PAGE>
Exhibit C to the
Credit Agreement
AMERICAN STANDARD INC.
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information andreturn via FAX to the
attention of Janet Belden at Chemical Bank as soon as possible.
FAX Number: 212-622-0854
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTAT
---------------------------------------------------------------------------
GENERAL INFORMATION - ALTERNATE BASE RATE LENDING OFFICE:
Institution Name ____________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE: **
Institution Name: _____________________________________________________________
Street Address: ______________________________________________________________
City, State, Zip Code: _______________________________________________________
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact ______________________________________________________________
Street Address _______________________________________________________________
Institution Name: _____________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: _________________________________________________________
Backup Contact ______________________________________________________________
Street Address _______________________________________________________________
Institution Name: _____________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: _________________________________________________________
** Please provide information for borrowings in each Alternative Currency if
different
<PAGE>
TAX WITHHOLDING:
UNITED STATES
Non Resident Alien or Foreign Corporate or other Foreign
Entity _____________ YES ___________________ NO If yes, please
enclose Form 4224, 1001 or W-8. If No, please enclose form
W-9. Tax ID Number ______________________________
UNITED KINGDOM
Non Resident Alien or Foreign Corporate or other Foreign
Entity _____________ YES ___________________ NO Please enclose
relevant tax forms Tax ID Number
______________________________
CONTACTS/NOTIFICATION METHODS:
ADMINISSTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact __________________________________________________________________
Street Address: __________________________________________________________
City, State, Zip Code _____________________________________________________
Phone Number: ____________________________________________________________
FAX Number: ______________________________________________________________
Telex & Answer Back: :____________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be trnasferrred:
-----------------------------------------------------------------------
Routing Transit/ABA number of Bank where funds are to be transferred:
-----------------------------------------------------------------------
Name of Account, if applicable:
-----------------------------------------------------------------------
Account Number: __________________________________________________________
Additional Information: ___________________________________________________
--------------------------------------
MAILINGS:
Please specify whoshould receive financial information:
Name: _________________________________________________________________
Street Address _________________________________________________________
City State, Zip Code ___________________________________________________
It is very important that all of the above information is accurately filled
in and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number
and we will FAX thema copy of the questionnaire. If you have any questions,
please call Janet Belden on 212-622-0011 or Doris Mesa on 212-622-0827.
<PAGE>
EXHIBIT D to the
Credit Agreement
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of February 9, 1995 (as amended and in effect at the date hereof, the
"Credit Agreement"), among American Standard Companies Inc., American Standard
Inc., certain subsidiaries of American Standard Inc., the Lenders, Senior
Managing Agents, Managing Agents and Co-Agents named therein, and Chemical Bank,
as Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Assignment Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Documents, including,
without limitation, the interests set forth on the reverse hereof in the
Commitments of the Assignor on the Assignment Date and the Loans owing to the
Assignor which are outstanding on the Assignment Date, together with unpaid
interest accrued on the assigned Loans to the Assignment Date and the amount, if
any, set forth on the reverse hereof of the Fees accrued to the Assignment Date
for the account of the Assignor. Each of the Assignor and the Assignee hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 10.04(c) of the Credit Agreement, a copy of
which has been received by each such party. 1/ Upon acceptance of this
Assignment and Acceptance by the Administrative Agent and recording of the
information contained herein in accordance with Section 10.04(e) of the Credit
Agreement, from and after the Assignment Date (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Credit Documents and (ii)
the Assignor shall, to the extent of the interests assigned by this Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) the Notes previously issued to Assignor,
(ii) if the Assignee is organized under the laws of a jurisdiction outside the
United States, the forms specified in Section 2.18(e)(i) of the Credit
Agreement, duly completed and executed by the Assignee, (iii) the form or
certificate, as applicable, specified in Section 2.18(e)(ii) of the Credit
Agreement, duly completed and executed by the Assignee, (iv) if the Assignee is
not already a Lender under the Credit Agreement, an Administrative Questionnaire
in the form of Exhibit C to the Credit Agreement and (v) a processing and
recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment Date (may not be fewer than 5 Business Days after the Date of
Assignment):
Percentage
Assigned
of Credit
Facility
(set
forth, to
at least
8
decimals,
as a
percentage
of the
Credit
Facility
and the
aggregate
Principal Amount Commitments/Term Loans
Credit Facility Assigned of all Lenders thereunder)
Multi-Currency Revolving Credit
Commitment: $ %
U.S. $ Revolving Credit Commitment
Periodic Access Loan Commitment:
Term Loan Commitment:
Fees Assigned (if any):
The terms set forth above and on the reverse side hereof are hereby agreed to:
Accepted: */
, as Assignor AMERICAN STANDARD INC.,
By: By:
Name: Name:
Title: Title:
, as Assignee
By:
Name:
Title:
--------------------
*/ To be completed only if consents are required under Section 10.04(b) of the
Credit Agreement. If such consents are required and the assignment includes a
Revolving Credit Commitment, consents also must be obtained from the Issuing
Banks and Swingline Lenders.
1/ If the Assignee is an Affiliate of the Assignor, the Assignor also must
represent to ASI that the assignment is being made for a valid business purpose
(and at the request of ASI will advise ASI of such purpose in reasonable detail)
and is not inconsistent with the obligations of the Assignor under Section
2.23(b) of the Credit Agreement.
<PAGE>
EXHIBIT E to the
Credit Agreement
ISSUING BANK AGREEMENT dated as of [ ], 1995, between AMERICAN STANDARD
INC., a Delaware corporation ("ASI") and the financial institution identified on
Schedule I hereto as the Issuing Bank (the "Issuing Bank").
Reference is made to the Amended and Restated Credit Agreement dated as of
February 9, 1995 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among American Standard Companies Inc., ASI, certain
subsidiaries of ASI, the Lenders, Senior Managing Agents, Managing Agents and
Co-Agents named therein and Chemical Bank, as Administrative Agent. ASI and the
Issuing Bank desire to enter into this Agreement in order to provide for Letters
of Credit to be issued by the Issuing Bank as contemplated by the Credit
Agreement. Accordingly, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings specified in the Credit
Agreement. The provisions of Section 1.02 of the Credit Agreement shall apply to
this Agreement as though set forth herein.
SECTION 2. Letter of Credit Commitment. The Issuing Bank hereby agrees to
be an "Issuing Bank" under, and, subject to the terms and conditions hereof and
of the Credit Agreement, to issue Letters of Credit under, the Credit Agreement;
provided, however, that Letters of Credit issued by the Issuing Bank hereunder
shall be subject to the limitations, if any, set forth on Schedule I hereto, in
addition to the limitations set forth in the Credit Agreement.
SECTION 3. Issuance Procedure. In order to request the issuance of a Letter
of Credit hereunder, the Account Party (or ASI on behalf of the applicable
Account Party) shall hand deliver or telecopy a notice (specifying the
information required by Section 2.19(b) of the Credit Agreement) to the Issuing
Bank, at its address or telecopy number specified on Schedule I hereto (or such
other address or telecopy number as the Issuing Bank may specify by notice to
ASI), not later than the time of day (local time at such address) specified on
Schedule I hereto prior to the proposed date of issuance of such Letter of
Credit. A copy of such notice shall be sent, concurrently, by the applicable
Account Party (or ASI on behalf of the applicable Account Party) to the
Administrative Agent in the manner specified for Borrowing Requests under the
Credit Agreement. Upon receipt of such notice, the Issuing Bank shall consult
the Administrative Agent by telephone in order to determine (i) whether the
conditions specified in the last sentence of Section 2.19(b) of the Credit
Agreement will be satisfied in connection with the issuance of such Letter of
Credit and (ii) whether the requested expiration date for such Letter of Credit
complies with the proviso to Section 2.19(c) of the Credit Agreement.
SECTION 4. Issuing Bank Fees, Interest and Payments. (a) The Issuing Bank
Fees payable to the Issuing Bank in respect of Letters of Credit issued
hereunder are specified on Schedule I hereto (and such fees shall be in addition
to the Issuing Bank's customary documentary and processing charges in connection
with the issuance, amendment or transfer of any Letter of Credit issued
hereunder). Each payment of Issuing Bank Fees payable hereunder shall be made
not later than 12:00 (noon), local time at the place of payment, on the date
when due, in immediately available funds, to the account of the Issuing Bank
specified on Schedule I hereto (or to such other account of the Issuing Bank as
it may specify by notice to ASI).
(b) If this Agreement permits Letters of Credit to be denominated in
Alternative Currencies, then it will be necessary to establish the Swingline
Base Rate and the Swingline Margin that will apply to unreimbursed L/C
Disbursements denominated in such Alternative Currencies for purposes of
determining interest thereon. The Issuing Bank agrees to determine the Swingline
Base Rate for each day that any such L/C Disbursement denominated in an
Alternative Currency is outstanding hereunder and to notify ASI, the applicable
Account Party and the Administrative Agent thereof. The parties hereto
<PAGE>
understand and agree that the Applicable Margin was negotiated for purposes
of determining interest on ABR Loans denominated in Dollars and that it may be
necessary from time to time to adjust the Applicable Margin, based upon
differences between prevailing interest rates on obligations denominated in
Dollars compared to prevailing interest rates on obligations denominated in the
Alternative Currency or Currencies in which unreimbursed L/C Disbursements may
be made hereunder (any such Alternative Currency being referred to as an "L/C
Alternative Currency"), in order to arrive at the Swingline Margin for such L/C
Alternative Currency, which is intended to provide a marginal interest rate in
the L/C Alternative Currency comparable to the Applicable Margin on Revolving
Credit Borrowings comprised of ABR Loans denominated in Dollars. If this
Agreement permits Letters of Credit to be denominated in an Alternative
Currency, then (i) Schedule I hereto specifies the initial conversion factor
(expressed as a percentage to be multiplied by the Applicable Margin on
Revolving Credit Borrowings comprised of ABR Loans) with respect to each L/C
Alternative Currency and (ii) the Issuing Bank may from time to time adjust any
such conversion factor by notice to ASI and the Administrative Agent (each such
notice to be effective upon the date given) based upon changes in the
differences between prevailing interest rates in the relevant currencies, and
each such adjustment by the Issuing Bank shall be conclusive absent manifest
error.
SECTION 5. Credit Agreement Terms. Notwithstanding any provision hereof
which may be construed to the contrary, it is expressly understood and agreed
that (a) this Agreement is supplemental to the Credit Agreement and is intended
to constitute an Issuing Bank Agreement, as defined therein (and, as such,
constitutes an integral part of the Credit Agreement as though the terms of this
Agreement were set forth in the Credit Agreement), (b) each Letter of Credit
issued hereunder and each and every L/C Disbursement made under any such Letter
of Credit shall constitute a "Letter of Credit" and an "L/C Disbursement",
respectively, for all purposes of the Credit Agreement and the other Credit
Documents, (c) the Issuing Bank's commitment to issue Letters of Credit
hereunder and each and every Letter of Credit requested or issued hereunder
shall be subject to the terms and conditions of the Credit Agreement and
entitled to the benefits of the Credit Documents and (d) the terms and
conditions of the Credit Agreement are hereby incorporated herein as though set
forth herein in full and shall supersede any contrary provisions hereof.
SECTION 6. Assignment. The Issuing Bank may not assign its commitment to
issue Letters of Credit hereunder without the consent of ASI and prior notice to
the Administrative Agent. In the event of an assignment by the Issuing Bank of
all its other interests, rights and obligations under the Credit Agreement, then
the Issuing Bank's commitment to issue Letters of Credit hereunder shall
terminate unless the Issuing Bank, ASI and the Administrative Agent otherwise
agree.
SECTION 7. Effectiveness. This Agreement shall not be effective until
counterparts hereof executed on behalf of each of ASI and the Issuing Bank have
been delivered to and accepted by the Administrative Agent.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
AMERICAN STANDARD INC.,
by
--------------------------------
Name:
Title:
[ISSUING BANK],
by
--------------------------------
Name:
Title:
Accepted:
CHEMICAL BANK, as
Administrative Agent,
by
----------------------------
<PAGE>
SCHEDULE I to
Issuing Bank Agreement
A.Issuing Bank:
B.Issuing Bank's Address and
Telecopy Number for Notices:
C.Scheduled Letters of Credit: This Agreement shall apply
to the Scheduled Letters of Credit issued by
the Issuing Bank and set forth on Schedule IV.
The Issuing Bank shall be under no obligation
to extend or renew any Scheduled Letter of
Credit, except in accordance with the terms of
such Scheduled Letter of Credit.
D.Time of Day by Which Notices Other than Scheduled Letters of Credit, a Must be
Received notice requesting the issuance of a Letter of
of Credit must be received by the ssuing
Bank by 10:00 a.m. (New York time) not less
than five Business Days prior to the proposed
date of issuance
<PAGE>
.
E.Special Terms:
The Letters of Credit issued pursuant to the Agreement
shall be denominated in Dollars or any Alternative
Currency. The aggregate L/C Exposure in respect of
Letters of Credit (including Scheduled Letters of
Credit) issued pursuant to this Agreement shall not
exceed $200,000,000.
F.Issuing Bank Fees:
[ ]% per annum on the average daily undrawn amount of
the Scheduled Letters of Credit, payable on the same
dates that L/C Participation Fees are payable under
the Credit Agreement.
G.Issuing Bank's Account for
Payment of Issuing Bank Fees:
H.Initial Conversion Factor(s) for To be determined in the event of an issuance
Determining Swingline of a Letter of Credit the stated amount of Margin(s)
which is not denominated in Dollars.
<PAGE>
Credit Agreement
[FORM OF MORTGAGE]
AMENDED AND RESTATED TERM LOAN AND
REVOLVING CREDIT MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
BY
AMERICAN STANDARD INC.,
Mortgagor,
TO
CHEMICAL BANK, as collateral agent,
Mortgagee,
Relating to Premises at
DATED AS OF:
This instrument prepared by and, after
recording, please return to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
Attention: Martin R. Levine, Esq.
<PAGE>
AMENDED AND RESTATED TERM LOAN AND REVOLVING CREDIT OPEN-END
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
("Mortgage"), dated as of , made by AMERICAN STANDARD INC. ("ASI" or
"Mortgagor"), a Delaware corporation having an office at 1114 Avenue of the
Americas, New York, New York 10036, as mortgagor, assignor and debtor, in favor
of CHEMICAL BANK a New York banking corporation, having its principal offices at
270 Park Avenue, New York, New York 10017, as Collateral Agent (together with
any successors or assigns in such capacity, "Mortgagee") for (i) the financial
institutions and their successors and assigns (collectively, "Lenders")
identified in the "Credit Agreement" (as such term is defined in paragraph 3 of
the RECITALS below), (ii) WABCO-STANDARD TRANE B.V., a Netherlands corporation
("BV Borrower"), and (iii) the Swap Providers (as defined in the Domestic
Guarantee), as mortgagee, assignee and secured party. (All capitalized terms
used and not defined herein shall have the meanings ascribed in the Credit
Agreement.)
R E C I T A L S:
1. Mortgagor is the owner in fee simple absolute of the
property described in Schedule A and the Improvements and Equipment
(each as hereinafter defined).
2. ASI entered into a Term Loan and Revolving Credit Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing with respect to the
property described in Schedule A on June 29, 1988, and recorded in the land
records of on at [list amendments] (as so amended, the "1988 Mortgage"), and
which secured certain obligations of ASI as set forth in the Recitals to the
1988 Mortgage.
3. ASI Holding Corporation, ASI and certain subsidiaries of
ASI are entering into an Amended and Restated Credit Agreement dated as of June
1, 1993 with the Lenders named therein (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), pursuant to which
outstanding loans and commitments are being restructured.
4. Pursuant to the terms of the Credit Agreement, the Lenders have agreed
to make loans ("Loans") and to issue from time to time certain letters of credit
to or for the account of the obligors thereunder in the aggregate principal
amount of $1,000,000,000, including revolving credit loans in the aggregate
principal amount of $[ ], which Loans will continue to be, inter alia, secured
by the 1988 Mortgage.
5. Mortgagor and others have executed and delivered to the
Lenders a certain Amended, Consolidated and Restated Guarantee ("Guarantee"),
dated as of the date hereof, pursuant to which Mortgagor has agreed to guarantee
certain obligations arising under the Credit
Agreement.
6. The BV Borrower, having an address at Jupiter Straat
262, 2132 UK Hoofddorp, The Netherlands, is the owner and holder of the
<PAGE>
ASI-BV Intercompany Note (as defined in the Credit Agreement), being amended as
of the date hereof.
7. This Mortgage is given by Mortgagor to confirm to Mortgagee
the continuing security of the 1988 Mortgage and to secure payment by Mortgagor
(i) to the Lenders of all principal, interest and other sums due or to become
due from Mortgagor under the Credit Agreement and the Guarantee; (ii) to the BV
Borrower of all principal, interest and other sums due or to become due or
amounts outstanding from time to time under the ASI-BV Intercompany Note and the
Guarantee; (iii) all of Mortgagor's obligations under the Swap Agreements (as
defined in the Domestic Guarantee); and (iv) all other obligations of Mortgagor
which together with the foregoing comprise the Obligations.
G R A N T I N G C L A U S E S :
Mortgagor hereby grants, bargains, sells, mortgages and
creates a security interest in and first mortgage lien upon, all Mortgagor's
right, title and interest in and to the following property whether now owned or
held or hereafter acquired except as otherwise provided in this Mortgage or the
Credit Agreement (collectively, "Mortgaged Property"):
A. The fee simple estate in the land described in Schedule A,
together with any and all easements, rights-of-way, sidewalks, gores of land,
streets, ways, alleys, passages, passageways, sewer rights, waters, water
courses, water rights and powers, air, light and other rights, estates, titles,
interests, privileges, liberties, servitudes, licenses, tenements, hereditaments
and appurtenances whatsoever, in any way belonging, relating or appertaining
thereto, or any part thereof, or which hereafter shall in any way belong, relate
or be appurtenant thereto, and all reversions, remainders, income, rents,
issues, revenues and profits thereof (collectively, "Land");
B. The buildings, structures and other improvements and any
and all Alterations (as hereinafter defined) now or hereafter located or
erected on the Land, including, without limitation, attachments, walks
and ways (collectively, "Improvements"; together with the Land,
"Premises");
C. Any and all permits, certificates, approvals and
authorizations, however characterized, issued or in any way furnished, whether
necessary or not for the operation and use of the Premises, including, without
limitation, permits, building permits, certificates of occupancy, environmental
certificates, industrial permits or licenses and certificates of operation;
D. All machinery, apparatus, equipment, fittings, fixtures,
improvements and articles of personal property of every kind and nature
whatsoever now or hereafter attached or affixed to the Premises or used in
connection with the use and enjoyment of the Premises or the maintenance or
preservation thereof, including, without limitation, all manufacturing
equipment, tools, utility systems, fire sprinkler and
<PAGE>
alarm systems, HVAC equipment, boiler, electronic data processing,
refrigeration, electronic monitoring, water or lighting systems, power,
sanitation, waste removal, window cleaning, maintenance or other systems or
equipment, lobby and all other indoor or outdoor furniture, appliances or
supplies, and all other articles used or useful in connection with the use or
operation of any part of the Premises (collectively, "Equipment");
E. Mortgagor's interest, as landlord, franchisor, licensor or
grantor, in all leases of space, franchise agreements, licenses, occupancy or
concession agreements (collectively, "Leases"; each, a "Lease") now existing or
hereafter entered into relating in any manner to the Premises or Equipment and
any and all amendments, modifications, supplements and renewals of Leases,
whether now in effect or hereafter coming into effect, including, without
limitation, all rents, additional rents, cash or securities deposited thereunder
to secure performance of the lessee's, franchisee's, licensee's or obligee's
obligations thereunder, revenues, earnings, profits and income, advance rental
payments, payments incident to assignment, sublease or surrender of a Lease,
claims for forfeited deposits and claims for damages, now due or hereafter to
become due, with respect to any Lease;
F. All general intangibles and contract rights relating to the
Premises and the Equipment, other than tradenames and trademarks owned by
Mortgagor, and all reserves, deferred payments, deposits, refunds and claims of
every kind or character relating thereto;
G. All drawings, plans, specifications, file materials,
operating and maintenance records, catalogues, tenant lists, correspondences,
advertising materials, operating manuals, warranties, guaranties, appraisals,
studies and data relating to the Premises or the Equipment or the construction
of any Alteration or the maintenance of any Permit (as hereinafter defined); and
H. All proceeds of the conversion, voluntary or involuntary,
of any of the foregoing into cash or liquidated claims, including, without
limitation, proceeds of insurance and condemnation or other awards or payments
with respect thereto, including interest thereon;
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee and
Mortgagee's successors and assigns forever, for the purpose of securing payment
and performance of the Obligations.
<PAGE>
C O V E N A N T S :
Mortgagor warrants, represents and covenants as follows:
ARTICLE I
WARRANTIES, REPRESENTATIONS AND
COVENANTS OF MORTGAGOR
SECTION 1.l Good Title. Mortgagor represents, warrants and
covenants that: (i) it has good and marketable title to an indefeasible fee
simple estate in the Mortgaged Property subject to no mortgage, pledge, security
interest, encumbrance, lien, lease, license, easement, assignment, collateral
assignment or charge of any kind, including, without limitation, any conditional
sale or other title retention agreement or lease in the nature thereof, any
filing or agreement to file a financing statement as debtor under the Uniform
Commercial Code or any similar statute or any subordination arrangement in favor
of any party other than Mortgagor (collectively, "Liens"; each, a "Lien"),
except for those Liens identified on Schedule B (collectively, "Prior Liens");
(ii) it will keep in effect all rights and appurtenances to or that constitute a
part of the Mortgaged Property; (iii) it will protect, preserve and defend its
interest in the Mortgaged Property and title thereto; (iv) it will comply with
each of the terms, conditions and provisions of any obligation of Mortgagor
which is secured by the Mortgaged Property the noncompliance with which may
result in the imposition of a Lien on the Mortgaged Property; (v) it will appear
and defend the Lien and validity of this Mortgage in any action or proceeding
affecting or purporting to affect the Mortgaged Property or any of the rights of
Mortgagee hereunder; (vi) this Mortgage creates and constitutes a valid and
enforceable first Lien on the Mortgaged Property, and, to the extent any of the
Mortgaged Property shall consist of personalty, a first security interest in the
Mortgaged Property, subject only to (a) Prior Liens (but not to extensions,
amendments, supplements or replacements of Prior Liens), and (b) Liens hereafter
created and which, pursuant to the provisions of Section 1.10, are superior to
the Lien hereof, and Mortgagor does now and will forever warrant and defend to
Mortgagee and all its successors and assigns such title and the validity and
priority of the Lien hereby created and evidenced against the claims of all
persons and parties whomsoever; and (vii) it is duly authorized and has full
power to execute this Mortgage and enter into the transaction described herein.
SECTION 1.2 Further Documentation to Assure Lien; Fees and
Expenses.
1.2.1 Mortgagor shall, at the sole cost and expense
of Mortgagor, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as Mortgagee shall from time to time request, which may
be necessary in the judgment of the requesting party from time time to assure,
perfect, convey, assign, transfer and
<PAGE>
confirm unto Mortgagee, the property and rights hereby conveyed or assigned, or
which Mortgagor may be or may hereafter become bound to convey or assign to
Mortgagee or which may facilitate the performance of the term of this Mortgage,
or the filing, registering or recording of his Mortgage.
1.2.2 Mortgagor shall pay all filing, registration or recording fees and
all expenses incident to the execution and delivery of this Mortgage, any
mortgage instrument supplemental hereto, any security instrument with respect to
the Personal Property, (as hereinafter defined), any Uniform Commercial Code
financing statements and continuation statements, and any instrument of further
assurance required by Mortgagee to be filed, registered or recorded pursuant to
this Mortgage.
SECTION 1.3 Payment of Taxes, Insurance Premiums, Assessments;
Compliance with Law and Insurance Requirements.
1.3.1 Unless contested in accordance with the
provisions of subsection 1.3.5, Mortgagor shall pay and discharge, from time to
time when the same shall become due, all real estate and other taxes, special
assessments, levies, permits, inspection and license fees, all premiums for
insurance, all water and sewer rents and charges, and all other public charges,
imposed upon or assessed against the Mortgaged Property or any part thereof or
upon the revenues, rents, issues, income and profits of the Mortgaged Property,
including, without limitation, those arising in respect of the occupancy, use or
possession thereof.
1.3.2 From and after the occurrence of an Event of
Default (as hereinafter defined), at the option of Mortgagee, Mortgagor shall
deposit with Mortgagee, on the first day of each month, an amount estimated by
Mortgagee to be equal to one-twelfth (1/12th) of the annual taxes, assessments
and other items required to be discharged by Mortgagor under subsection 1.3.1.
Such amounts shall be held by Mortgagee without interest to Mortgagor and
applied to the payment of the obligations in respect of which such amounts were
deposited, in such order or priority as Mortgagee shall determine, on or before
the respective dates on which such obligations or any thereof would become
delinquent. Nothing contained in this Section 1.3 shall affect any right or
remedy of Mortgagee under any provision of this Mortgage or of any statute or
rule of law to pay any such amount from its own funds and to add the amount so
paid, together with interest at a rate ("Default Rate") per annum equal to two
percent in excess of the rate payable under the Credit Agreement in respect of
LIBOR Loans with a maturity of one hundred eighty (180) days, to the other
amounts outstanding in respect of the Obligations or relieve Mortgagor of its
obligations to make or provide for the payment of the annual taxes, assessments
and other charges required to be discharged by Mortgagor under subsection 1.3.1.
Mortgagor hereby grants to Mortgagee a security interest in all sums held
pursuant to this subsection 1.3.2 to secure payment and performance of the
Obligations. During the continuance of any Event of Default, Mortgagee may apply
all or any part of the sums held pursuant to this subsection 1.3.2 to payment
and performance of the Obligations.
<PAGE>
Mortgagor shall redeposit with Mortgagee an amount equal to all amounts so
applied as a condition to the cure, if any, of such Event of Default in addition
to fulfillment of any other required conditions.
1.3.3 Unless contested in accordance with the
provisions of subsection 1.3.5, Mortgagor shall timely pay all lawful claims and
demands of mechanics, materialmen, laborers, government agencies administering
worker's compensation insurance, old age pensions and social security benefits
and all other claims, judgments, demands or amounts of any nature which, if
unpaid, might result in, or permit the creation of, a Lien on the Mortgaged
Property or any part thereof, or on the revenues, rents, issues, income and
profits arising therefrom or which might result in forfeiture of all or any part
of the Mortgaged Property.
1.3.4 Mortgagor shall maintain in full force and
effect all permits, consents, approvals, licenses, franchises or other
instruments (collectively, "Permits"; each, a "Permit") now or hereafter
required by any federal, state, municipal or local government or
quasi-governmental agency or authority to operate or use and occupy the Premises
and the Equipment for its intended uses. Unless contested in accordance with the
provisions of subsection 1.3.5, Mortgagor shall comply promptly with all
requirements set forth in the Permits and all requirements of any law,
ordinance, rule, regulation or requirement of any federal, state, municipal or
local government or quasi-governmental agency or authority applicable to all or
any part of the Mortgaged Property or the condition, use or occupancy of all or
any part thereof or any recorded deed of restriction, declaration, covenant
running with the land or otherwise, now or hereafter in force. Mortgagor shall
not initiate or consent to any change in the zoning or any other permitted use
classification of the Land without the written consent of Mortgagee.
1.3.5 Mortgagor may at its own expense contest the amount or applicability
of any of the obligations described in subsections 1.3.1, 1.3.3 and l.3.4 by
appropriate legal proceedings, prosecution of which operates to prevent the
collection thereof and the sale or forfeiture of the Mortgaged Property or any
part thereof to satisfy the same; provided, however, that in connection with
such contest, Mortgagor shall, at the option of Mortgagee, have made provision
for the payment of such contested amount on Mortgagor's books if and to the
extent required by generally accepted accounting principles or deposited with
Mortgagee a sum sufficient to pay and discharge such obligation and Mortgagee's
estimate of all interest and penalties related thereto. Notwithstanding the
foregoing provisions of this subsection 1.3.5, if at any time payment of any
obligation imposed upon Mortgagor by this Section 1.3 shall become necessary to
prevent the delivery of a tax deed conveying the Mortgaged Property or any
portion thereof because of nonpayment, Mortgagor shall pay the same in
sufficient time to prevent the delivery of such tax deed.
l.3.6 Mortgagor shall not in its use and occupancy of the Premises or the
Equipment (including, without limitation, in the making of any Alteration) take
any action that could be the basis for termination, revocation or denial of any
insurance coverage required to
<PAGE>
be maintained under this Mortgage or that could be the basis for a defense to
any claim under any insurance policy maintained in respect of the Premises or
the Equipment and Mortgagor shall otherwise comply in all respects with the
requirements of any insurer that issues a policy of insurance in respect of the
Premises or the Equipment.
1.3.7 Mortgagor shall, immediately upon receipt of
any written notice regarding any failure by Mortgagor to pay or discharge any of
the obligations described in subsection 1.3.1, 1.3.3, 1.3.4 or 1.3.6, furnish a
copy of such notice to Mortgagee.
SECTION 1.4 Payment of Certain Taxes. If the United States, the state in
which the Land is located or any political subdivision thereof shall levy,
assess or charge any tax, imposition or assessment upon this Mortgage or the
interest of Mortgagee in the Mortgaged Property, Mortgagor shall pay all such
taxes, assessments and impositions to, for, or on account of Mortgagee when due
and payable and shall furnish to Mortgagee proof of such payment satisfactory to
Mortgagee.
SECTION 1.5 Required Insurance Policies.
1.5.1 Mortgagor shall maintain in full force the following insurance
coverages in respect of the Premises and the Equipment:
(i) Physical hazard insurance on an "all risk" basis covering
fire and extended coverage in an amount equal to the full replacement
cost of the Improvements and Equipment, with such deductibles as
Mortgagee may from time to time require, and, if Mortgagee shall not
have imposed any such requirements, with such deductibles as would be
maintained by a prudent operator of property similar in use and
configuration to the Premises and located in the locality where the
Premises are located. "Full replacement cost" means the cost to replace
the Improvements and the Equipment, exclusive of excavation, foundation
and footings, as determined from time to time (but not less frequently
than once each year) by a person satisfactory to Mortgagee;
(ii) Liability insurance against claims for bodily injury,
death or property damage occurring on, in or about the Premises and any
adjoining streets, sidewalks and passageways, with policy limits and
deductibles in such amounts as Mortgagee may from time to time require,
and, if Mortgagee shall not have imposed any such requirements, in such
amounts as from time to time would be maintained by a prudent operator
of property similar in use and configuration to the Premises and
located in the locality where the Premises are located;
(iii) Pollution and hazardous waste liability insurance with a
coverage amount not less than $25,000,000 for clean-up expenses and
$15,000,000 for legal liability, if the Premises are subject to rules
and regulations of the Federal Environmental Protection Agency
requiring insurance of this type or if such insurance would
<PAGE>
ordinarily be maintained in accordance with commercially reasonable
business practices; provided, however, that to the extent the rules and
regulations of the federal Environmental Protection Agency from time to
time in effect permit Mortgagor to maintain lesser coverage amounts or
to self-insure against liabilities contemplated by this subsection,
compliance by Mortgagor with such rules and regulations shall be deemed
compliance with the provisions of this subsection;
(iv) Worker's compensation insurance as required by the laws
of the state where the Premises are located, or, to the extent
permitted by local law, appropriate self insurance arrangements, to
protect Mortgagor against claims for injuries sustained in the course
of employment at the Premises;
(v) Explosion insurance in respect of any boilers and similar
apparatus located on the Premises, with policy limits and deductibles
in such amounts as Mortgagee may from time to time require, and, if
Mortgagee shall not have imposed any such requirements, in such amounts
as would be maintained by a prudent operator of property similar in use
and configuration to the Premises and located in the locality where the
Premises are located;
(vi) If all or any portion of the Premises or the Equipment
shall be subject to a Lease or Leases, rental value insurance to the
extent, and in the amount, required by the terms of the respective
Lease;
(vii) Business interruption insurance with policy limits and
deductibles in such amounts as Mortgagee may from time to time require,
and, if Mortgagee shall not have imposed any such requirements, in such
amounts as would be maintained by a prudent operator of property
similar in us and configuration to the Premises and located in the
locality where the Premises are located;
(viii) If the Premises are located in an area designated by
the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968, as amended,
such insurance covering the interests of Mortgagee in such amounts as
Mortgagee may from time to time require, and, if Mortgagee shall not
have imposed any such requirements, in such amounts as would be
maintained by a prudent operator of property similar in use and
configuration to the Premises and located in the locality where the
Premises are located; and
(ix) Such other insurance, against such risks and with policy
limits and deductibles in such amounts as Mortgagee may from time to
time require, and, if no such requirements shall have been imposed, in
such amounts as would be maintained by a prudent operator of property
similar in use and configuration to the
<PAGE>
Premises and located in the locality where the premises are located.
l.5.2 All insurance policies required by this Section 1.5 shall be in form
and issued by companies satisfactory to Mortgagee. Mortgagor may maintain the
coverages required by this Section 1.5 under blanket policies covering the
Premises and other locations owned or operated by Mortgagor if the terms of such
blanket policies otherwise comply with the provisions of this Section 1.5 and
contain specific coverage allocations in respect of the Premises determined in
accordance with the provisions of this Section 1.5. All insurance policies in
respect of the coverages required by subsections 1.5.1(i), 1.5.1(v), l.5.l(vii)
and, if applicable, l.5.l(viii), shall be in amounts at least sufficient to
prevent coinsurance liability. All insurance policies required by the foregoing
enumerated subsections shall name Mortgagee as an additional named insured. All
insurance policies in respect of the coverages required by subsections l.5.l(ii)
and 1.5.1(iii) shall name Mortgagee as an additional insured. Each policy of
insurance required under this Section 1.5 shall provide that it may not be
cancelled or otherwise terminated without at least thirty (30) days prior
written notice to Mortgagee and shall permit Mortgagee to pay any premium
therefor within thirty (30) days after receipt of any notice stating that such
premium has not been paid when due. The policy or policies of such insurance or
certificates of insurance evidencing the required coverages shall be delivered
to Mortgagee. Settlement of any claim under any of the insurance policies
referred to in this Section 1.5, if such claim involves (in the reasonable
judgment of Mortgagee) loss of $250,000 or more, shall require the prior
approval of Mortgagee.
1.5.3 At least ten (10) days prior to the expiration of any insurance
policy, an extension or renewal policy or an insurance certificate evidencing
such extension or renewal shall be delivered to Mortgagee.
1.5.4 Mortgagor shall not purchase separate insurance policies concurrent
in form or contributing in the event of loss with those policies required to be
maintained under this Section 1.5, unless Mortgagee is included thereon as a
named insured and, if applicable, with loss payable to Mortgagee under a
standard endorsement of the character described in subsection 1.5.2 and the
policy evidencing such insurance otherwise complies with the requirements of
subsection 1.5.2. Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance policy is obtained and shall promptly deliver to Mortgagee
the policy or certificate evidencing such insurance.
l.5.5 Mortgagor shall, immediately upon receipt of any written notice of
any failure by Mortgagor to pay any insurance premium in respect of any
insurance required to be maintained under this Section 1.5, furnish a copy of
such notice to Mortgagee.
SECTION 1.6 Failure to Make Certain Payments. If Mortgagor shall fail to
perform any of the covenants contained in this Mortgage, including, without
limitation, Mortgagor's covenants to pay any amounts referred to in subsection
1.3.3 and the premiums in respect of all
<PAGE>
required insurance coverages, Mortgagee may make advances to perform such
covenant on Mortgagor's behalf, and all sums so advanced shall, notwithstanding
any provision of Recital 6 or Section 4.11 hereof to the contrary, be included
in the Obligations and be secured hereby. Mortgagor shall repay on demand all
sums so advanced by Mortgagee on behalf of Mortgagor, with interest at the
Default Rate. Neither the provisions of this Section 1.6 nor any action taken by
Mortgagee pursuant to the provisions of this Section 1.6 shall prevent any such
failure to observe any covenant contained in this Mortgage from constituting an
Event of Default.
SECTION 1.7 Inspection. Mortgagor shall permit Mortgagee, by its agents,
accountants and attorneys, to visit and inspect the Premises at such reasonable
times as may be requested by Mortgagee.
SECTION 1.8 Mortgagor to Maintain Improvements. Mortgagor shall not commit
any waste on the Premises or make any change in the use of the Premises.
Mortgagor represents and warrants that: (i) the Premises are served by all
utilities required or necessary for the current use thereof; (ii) all streets
necessary to serve the Premises are completed and serviceable and have been
dedicated and accepted as such by the appropriate governmental entities; and
(iii) Mortgagor has access to the Premises from public roads sufficient to allow
Mortgagor to conduct its business at the Premises in accordance with sound
commercial and industrial practices. Mortgagor shall, at all times, maintain the
Premises in good operating order, condition and repair. Mortgagor shall (a) not
alter the occupancy or use of all or any part of the Premises without the prior
written consent of Mortgagee, and (b) do all other acts which from the character
or use of the Premises may be necessary or appropriate to maintain and preserve
its value. The Premises shall not be demolished nor shall any Equipment having a
value of more than $1,000,000 be removed without the prior written consent of
Mortgagee, except that items constituting Equipment may be removed if
immediately replaced with similar items of Equipment having a value and utility
for their intended purposes that is not less than the value and such utility of
the Equipment so removed.
<PAGE>
SECTION 1.9 Mortgagor's Obligations with Respect to Leases.
1.9.1 If, in accordance with the provisions of Section 1.10, Mortgagor
shall be permitted to enter into any Leases or any Leases exist on the date
hereof, Mortgagor shall not (i) execute any assignment of any Lease or of the
rents or any part thereof from the Mortgaged Property other than the assignment
herein to Mortgagee or as otherwise permitted under Section 1.10, (ii) except
where the lessee, franchisee, licensee or obligee under any Lease is in default
thereunder, terminate or consent to the cancellation or surrender of such Lease,
(iii) modify any Lease so as to change the unexpired term thereof or so as to
decrease the amount of the rents or other amounts payable thereunder, (iv)
accept any prepayments of any installment of rents or other amounts to become
due under any Lease for a period exceeding one (1) month, (v) permit the
deferral of or waive or postpone the payment of any rental or other payment
under any Lease, (vi) permit any transfer or assignment of any Lease or any
sublease thereunder of the property subject to any Lease without the prior
written consent of Mortgagee, unless such Lease is not amended in any respect
and the primary obligor under such Lease is not released in any respect from its
responsibilities or liabilities under such Lease as a result of such sublease,
transfer or assignment or (vii) modify any Lease in any fashion which will
impair the value of the Mortgaged Property or the security provided by this
Mortgage.
1.9.2 Mortgagor shall at all times timely and faithfully perform, or cause
to be performed, all of the covenants, conditions and agreements contained in
all Leases to be kept and performed by the lessor, franchisor, licensor or
grantor thereunder and shall at all times do all things necessary to require
performance by the lessee, franchisee, licensee or grantee under each Lease of
all obligations, covenants and agreements by such party to be performed
thereunder.
1.9.3 Mortgagor shall furnish to Mortgagee, within thirty (30) days after
each request by Mortgagee to do so, a written statement in respect of any or all
of the Leases setting forth the space occupied, if any, the property affected
thereby, the rentals or other amounts payable thereunder, and such other
information as Mortgagee may request.
SECTION 1.10 Transfer Restrictions. Except as provided in Section 1.8,
Mortgagor may not, without the prior written consent of Mortgagee, further
mortgage, encumber, hypothecate, sell, convey or assign all or any part of the
Mortgaged Property or suffer any of the foregoing to occur by operation of law
or otherwise. Notwithstanding the provisions the foregoing sentence, Mortgagor
shall have the right to grant or suffer the following Liens in respect of the
Mortgaged Property:
(i) Liens in respect of amounts payable by Mortgagor pursuant to Section
1.3, provided such amounts are not yet due and payable or are being contested in
accordance with the provisions of subsection 1.3.5.
<PAGE>
(ii) Liens upon Equipment acquired by Mortgagor after the date
hereof created solely for the purpose of securing indebtedness
representing, or incurred to finance, the cost of such Equipment;
provided, however, that no such Lien shall (a) extend to or cover any
of the Mortgaged Property as it existed immediately prior to
acquisition of such property and (b) the principal amount of
indebtedness secured by any such Lien shall at no time exceed the fair
value (as determined by Mortgagee in its reasonable judgment) of such
property at the time it was so acquired.
Each of the Liens and other transfers permitted by this Section shall in
all respects be subject and subordinate in priority to the Lien of this Mortgage
except any Lien permitted by subsection 1.10(i) if and to the extent the law or
regulation creating or authorizing such Lien provides that such Lien must be
superior to the Lien of this Mortgage.
SECTION 1.11 Destruction; Condemnation.
1.11.1 Destruction; Insurance Proceeds. If there shall occur any damage to,
or loss or destruction of, the Improvements and Equipment or any part of either
thereof (each, a "Destruction"), Mortgagor shall promptly send to Mortgagee a
notice setting forth the nature and extent of such Destruction if such
Destruction is in respect of Improvements and Equipment having a value in excess
of $2,000,000. The proceeds of any insurance payable in respect of such
Destruction are hereby assigned and shall be paid to Mortgagee. All such
proceeds, less the amount of any expenses incurred in litigating, arbitrating,
compromising or settling any claim arising out of such Destruction ("Net
Proceeds"), shall be applied in accordance with the provisions of subsections
1.11.3, 1.11.4 and 1.11.5.
1.11.2 Condemnation; Assignment of Award. If there shall occur any taking
of the Mortgaged Property or any part thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason
of the temporary requisition of the use or occupancy of the Mortgaged Property
or any part hereof, by any governmental authority, civil or military (each, a
"Taking"), Mortgagor shall immediately notify Mortgagee upon receiving notice of
such Taking or commencement of proceedings therefor. Any proceeds, award or
payment in respect of any Taking are hereby assigned and shall be paid to
Mortgagee. Mortgagor shall take all steps necessary to notify the condemning
authority of such assignment. Such award or payment, less the amount of any
expenses incurred in litigating, arbitrating, compromising or settling any claim
arising out of such Taking ("Net Award") shall be applied in accordance with the
provisions of subsections 1.11.3, 1.11.4 and 1.ll.5.
1.11.3 Restoration. So long as no Event of Default shall have occurred and
be continuing, in the event there shall be a Net Award or Net Proceeds in an
amount less than or equal to $2,000,000, Mortgagor shall have the right, at
Mortgagor's option, to apply such Net Award or
<PAGE>
Net Proceeds to payment of amounts outstanding in respect of the
Obligations or to perform a restoration (each, a "Restoration") of the Premises
and the Equipment. In the event Mortgagor elects to make such Restoration,
Mortgagor shall give written notice ("Restoration Election Notice") of such
election to Mortgagee within thirty (30) days after the date that Mortgagor
receives notice of such collection by Mortgagee of the Net Proceeds or Net
Award, as the case may be. In the event Mortgagee does not receive a Restoration
Election Notice within such thirty (30) day period, Mortgagee shall apply any
such Net Proceeds or Net Award held by Mortgagee to the prepayment of the
Obligations in the manner set forth in the Credit Agreement (or in the event
this Mortgage shall not then secure amounts due from Mortgagor under the Credit
Agreement or the Guaranty, such prepayment shall De credited against amounts due
in respect of the ASI-BV Intercompany Note) or, at the option of Mortgagee, may
continue to hold such Net Proceeds or Net Award as additional collateral to
secure the performance by Mortgagor of the Obligations. In the event Mortgagor
elects to make such Restoration, Mortgagee shall release such Net Award or Net
Proceeds, exclusive of any interest earned thereon, to Mortgagor as soon as
practicable following receipt of a Restoration Election Notice but in no event
more than sixty (60) days following such receipt. Mortgagor shall, within ten
(10) days following the date of its receipt of any proceeds in respect of a
Destruction or Taking, as the case may be, comment and diligently continue to
perform the Restoration of that portion or portions of the Improvements and
Equipment subject to such Destruction or affected by such Taking so that, upon
the completion of the Restoration, the Mortgaged Property will be in
substantially the same condition and shall be of at least equal value and
utility for its intended purposes as the Mortgaged Property was immediately
prior to such Destruction or Taking. Mortgagor shall so complete such
Restoration with its own funds to the extent that the amount of any Net Award or
Net Proceeds is insufficient for such purpose.
1.11.4 Major Restoration. In the event there shall be a Net Award or Net
Proceeds other than as described in subsection 1.11.3, Mortgagee shall have the
option to apply such Net Award or Net Proceeds, as the case may be, to
prepayment of the Obligations, in accordance with the provisions of the Credit
Agreement (or in the event this Mortgage shall not then secure amounts due from
Mortgagor under the Credit Agreement or the Guaranty, such prepayment shall be
credited against amounts due in respect of the ASI-BV Intercompany Note), or to
continue to hold such Net Award or Net Proceeds as additional collateral to
secure the performance by Mortgagor of the Obligations, or to require
Restoration of the Mortgaged Property. In the event Restoration is required by
Mortgagee under this subsection 1.11.4, Mortgagee shall not release any part of
the Net Award or the Net Proceeds except in accordance with the provisions of
subsection 1.11.5, and Mortgagor shall, prior to commencing any work to effect a
Restoration of the Premises and the Equipment, promptly (but in no event later
than ninety (90) days following any Destruction or Taking) furnish to Mortgagee:
(i) complete plans and specifications ("Plans and Specifications") for the
Restoration;
<PAGE>
(ii) an opinion of counsel to Mortgagor, which shall be independent counsel
acceptable to Mortgagee ("Opinion of Counsel"), (a) listing all permits and
approvals required by law in connection with the Restoration and (b) stating
that all permits and approvals required by law to commence work in connection
with the Restoration have been obtained;
(iii) a certificate ("Architect's Certificate") of an independent,
reputable architect or engineer acceptable to Mortgagee and licensed in the
state where the Premises are located stating (a) that the Plans and
Specifications have been reviewed and approved by the signatory thereto, and (b)
such signatory's estimate ("Estimate") of the costs of completing the
Restoration, and (c) that upon completion of such Restoration in accordance with
the Plans and Specifications, the value and utility of the Premises and the
Equipment will be equal to or greater than the value and utility thereof
immediately prior to the Destruction or Taking relating to such Restoration; and
(iv) if the Estimate exceeds the Net Proceeds or the Net Award, as the case
may be, by $50,000 or more and an Event of Default shall have occurred and be
continuing, a surety bond for, guaranty of, or irrevocable letter of credit
("Letter of Credit") or other irrevocable and unconditional commitment to
provide funds ("Commitment") for the payment of the cost of such Restoration,
payable to or in favor of Mortgagee, as agent for the Lenders, which bond,
guaranty, Letter of Credit or Commitment (a) shall be signed by a surety or
sureties or guarantors(s), as the case may be, acceptable to Mortgagee, and, in
the case of a Letter of Credit or Commitment, shall be provided by a bank or
other financial institution having capital and surplus in excess of $500,000,000
as shown in its most recent available statement of financial condition, and (b)
shall be in an amount not less than the Estimate minus the amount of the Net
Proceeds or the Net Award, as the case may be, then held by Mortgagee for
application toward the cost of such Restoration.
Mortgagee shall have the right to review and approve the Plans and
Specifications. Promptly upon any approval of the Plans and Specifications by
Mortgagee, Mortgagor shall commence and diligently continue to perform the
Restoration in accordance with such approved Plans and Specifications. Mortgagor
shall so complete such Restoration with its own funds o extent that amount of
any Net Award or Net Proceeds is insufficient for such purpose.
<PAGE>
1.11.5 Restoration Advances Following Destruction or Taking of Mortgaged
Property. In the event Mortgagor shall be required to perform a Restoration of
the Premises and Equipment as provided in subsection 1.11.4, Mortgagee shall
apply any Net Proceeds or the Net Award held by Mortgagee on account of the
Destruction or Taking to the payment of the cost of performing such Restoration
and shall pay portions of the same, from time to time, to Mortgagor or, at
Mortgagee' s option, exercised from time to time, directly to the contractors,
subcontractors, materialmen, laborers, engineers, architects, and other persons
rendering services or material for such Restoration, subject to the following
conditions:
(i) Each request for payment shall be made on ten (10) business days prior
notice to Mortgagee and shall be accompanied by an Architect's Certificate
stating (a) that all the Restoration work then completed has been done
substantially in compliance with the approved Plans and Specifications and in
accordance with all provisions of law, (b) the sums requested are required to
reimburse Mortgagor for payments by Mortgagor to, or are due to, the
contractors, subcontractors, materialmen, laborers, engineers, architects, or
other persons rendering services or materials for the Restoration, and that,
when added to the sums, if any, previously paid out by Mortgagee, such sums do
not exceed the cost of the Restoration to the date of such Architect's
Certificate, (c) whether or not the Estimate continues to be accurate, and if
not, what the entire cost of such Restoration is then estimated to be, and (d)
unless Mortgagee received a surety, guaranty, Letter of Credit or Commitment as
referred to in subsection 1.11.4, that the amount of the Net Proceeds or Net
Award, as the case may be, remaining after giving effect to such payment will be
sufficient on completion of the Restoration to pay for the same in full
(including, in reasonable detail, an estimate by trade of the remaining costs of
completion);
(ii) Each request for payment shall be accompanied by an Opinion of Counsel
or a title insurance policy, binder or endorsement satisfactory to Mortgagee
confirming that (a) all Liens covering that part of the Restoration previously
paid for, if any, have been waived and (b) there has not been filed with respect
to all or any part of the Mortgaged Property any Lien, not discharged of record,
which could have priority over the Lien of this Mortgage in respect of any part
of the Obligations; and
(iii) The final request for any payment after the Restoration has been
completed shall be accompanied by an Opinion of Counsel listing all
certificates, permits, licenses, waivers, other documents, or any combination of
the foregoing required by law in connection with or as a result of such
Restoration and stating that all of the same have been obtained.
In the event there shall be any surplus after application of the Net Award
or the Net Proceeds to Restoration of the Premises and the Equipment, such
surplus shall be credited against the amounts outstanding in respect of the
Obligations in accordance with the provisions of the Credit Agreement (or in the
7
<PAGE>
event this Mortgage shall not then secure amounts due from Mortgagor under the
Credit Agreement or the Guaranty, such prepayment shall be credited against
amounts due in respect of the ASI-BV Intercompany Note) or, at the option of
Mortgagee, held by Mortgagee as additional collateral to secure the performance
by Mortgagor of the Obligations.
SECTION 1.12 Alterations. Mortgagor shall not, without the prior written
consent of Mortgagee, make any addition, modification or change (each, an
"Alteration"), structural or nonstructural, to the Premises or the Equipment
that costs more to effect than $2,500,000. Whether or not Mortgagee has
consented to the making of any Alteration, Mortgagor shall (i) complete each
Alteration promptly, in a good and workmanlike manner and in compliance with all
applicable local laws, ordinances and requirements and (ii) pay when due all
claims for labor performed and materials furnished in connection with such
Alteration, unless contested in accordance with the provisions of subsection
1.3.5.
SECTION 1.13 Hazardous Waste. Mortgagor shall (i) comply with any and all
laws, regulations or orders with respect to the discharge and removal of
hazardous or toxic wastes, contaminants or materials (collectively, "Hazardous
Material"), (ii) pay immediately when due the cost of removal of any Hazardous
Materials and keep the Mortgaged Property free of any lien imposed pursuant to
such laws, regulations or orders and (iii) not release or dispose of any
Hazardous Materials on the Mortgaged Property, provided that Mortgagor may
permit such disposal if permitted by applicable laws, regulations or orders
unless to do so would not be consistent with commercially reasonable business
practices. In the event Mortgagor fails to comply with the covenants in the
preceding sentence Mortgagee may, in addition to any other remedies set forth
herein, cause any Hazardous Materials to be removed from the Premises at
Mortgagor's sole cost and expense. Any costs or expenses incurred by Mortgagee
for such purpose shall be immediately due and payable by Mortgagor and shall
bear interest at the Default date. Mortgagor shall provide to Mortgagee and its
agents and employees access to the Mortgaged Property and hereby specifically
grants to Mortgagee a license to remove any Hazardous Material located thereon.
Mortgagee shall have the right, at any time that the Obligations are
outstanding, at the sole cost and expense of Mortgagor, to conduct an
environmental audit of the Mortgaged Property by such persons or firms appointed
by Mortgagee, and Mortgagor shall cooperate in all respects in the conduct of
such environmental audit, including, without limitation, access to the Mortgaged
Property and all records relating thereto. Mortgagor shall have the right to
review such environmental audit of the Mortgaged Property and to dispute the
same. Mortgagor shall indemnify and hold Mortgagee (and each Lender) harmless
from and against all loss, cost, damage (including, without limitation,
consequential damages) or expense (including, without limitation, attorneys'
fees and the allocated costs of staff counsel) that Mortgagee (or such Lender)
may sustain by reason of the assertion against Mortgagee (or such Lender) by any
party of any claim relating to such Hazardous Material or the removal thereof
from the Premises. Mortgagor may, at its own expense, contest such claims by
appropriate legal proceedings provided that, in connection with any such
contest, Mortgagor shall make provision for the payment of such contested claim
on its books, if and to the extent required by generally accepted accounting
principles. The foregoing indemnification shall survive repayment of all amounts
due under the Credit Agreement, the ASI-BV Intercompany Note, the Guaranty and
any release or assignment of this Mortgage.
SECTION 1.14 Asbestos. Mortgagor shall not install nor permit to be
installed in the Mortgaged Property, friable asbestos or any asbestos containing
material (collectively, "ACM") deemed hazardous by federal, state or local laws
or regulations or orders respecting such material, and with respect to any such
material currently present in the Mortgaged Property, Mortgagor shall promptly
either (i) remove any ACM which such laws, regulations or orders deem hazardous
and require to be removed, or (ii) otherwise, at Mortgagor's sole cost and
expense, comply with such federal, state or local laws, regulations or orders.
If Mortgagor shall fail to comply with such laws, regulations or orders,
Mortgagee may, in addition to any other remedies set forth herein, take such
steps as it deems necessary or appropriate to comply with such laws, regulations
or orders. Any costs or expenses incurred by Mortgagee for such purpose shall be
immediately due and payable by Mortgagor and bear interest at the Default Rate.
Mortgagor shall provide to Mortgagee and its agents and employees access to the
Mortgaged Property and hereby specifically grants to Mortgagee a license to
remove such ACM if Mortgagor fails to do so as provided for above. Mortgagor
shall indemnify and hold Mortgagee and each Lender) harmless from and against
all loss, cost, damage, including, without limitation, consequential damages)
and expense including, without limitation, attorney's fees and the allocated
costs of staff counsel) that Mortgagee (or such Lender) may sustain, as a result
of the presence of any ACM and any removal thereof or compliance with any
applicable laws, regulations or orders. The foregoing indemnification shall
survive repayment of all amounts due under the Credit Agreement, the ASI-BV
Intercompany Note, the Guaranty, and any release or assignment of this Mortgage.
ARTICLE II
ASSIGNMENT OF RENTS; SECURITY AGREEMENT
SECTION 2.1 Assignment of Leases; Rents, Issues and
Profits.
2.1.1 Mortgagor hereby irrevocably grants, transfers and assigns to
Mortgagee, and grants to Mortgagee a security interest in, all Mortgagor's
right, title and interest, whether now existing or hereafter acquired, in the
Leases, including, without limitation, the right, power and authority to collect
the rents, issues, income and profits of the Mortgaged Property. The assignment
set forth in the foregoing sentence shall be absolute, unconditional and
irrevocable except as provided to the contrary in subsection 2.1.2.
2.1.2 Notwithstanding the provisions of subsection 2.1.1, Mortgagor shall
have the right, so long as no Event of Default shall have occurred and be
<PAGE>
continuing, to collect and retain all rents, issues and profits relating to the
Mortgaged Property as the same become due and payable. Upon the occurrence and
continuance of any Event of Default, Mortgagee may at any time without notice,
either in person, by agent, or by a receiver to be appointed by a court, and
without regard to the adequacy of any security for the Obligations, (i) enter
upon and take possession of the Premises and Equipment or any part thereof,
and/or (ii) in its own name sue for or otherwise collect such rents, issues and
profits, including those as due and unpaid, and apply the same, less costs and
expenses of operation and collection (including, without limitation, attorneys'
fees and the allocated costs of staff counsel), to all or any part of the
Obligations, and in such order as Mortgagee may determine.
2.1.3 Mortgagee's right to collect the rents, issues and profits upon
default by Mortgagor pursuant to this Section 2.1 is in no manner conditional
upon Mortgagee first taking possession of the Premises. Should Mortgagee enter
and take possession of the Premises, or collect the rents, issues and profits
and apply the same as provided for herein, such act shall not cure or waive any
Event of Default or notice thereof hereunder or invalidate any act done pursuant
to such notice. Nothing contained herein, nor any collection of rents, issues
and profits by Mortgagee or a receiver, shall be construed to make Mortgagee a
"mortgagee-in-possession" so long as Mortgagee has not itself entered into
actual possession of the Premises.
2.1.4 Nothing herein shall be construed to impose any liability or
obligation on Mortgagee under or with respect to any Lease. Mortgagor shall
indemnify and hold Mortgagee (and each Lender) harmless from and against any and
all liabilities, losses and damages (including, without limitation, attorneys'
fees and the allocated costs of staff counsel) incurred under any Lease or by
reason of the provisions of this Section 2.1.
SECTION 2.2 Security Interest in Personal Property.
2.2.1 This Mortgage shall constitute a security agreement and shall create
and evidence a security interest in all the Equipment and in all the other items
of property comprising the Mortgaged Property in which a security interest or
lien may be granted or a common law pledge created pursuant to the Uniform
Commercial Code as in effect in the state in which the Premises are located or
under common law in such state (collectively, "Personal Property").
2.2.2. Mortgagor, immediately upon the execution and delivery of this
Mortgage, and thereafter from time to time, shall cause this Mortgage, any
security instrument creating or evidencing the Lien hereof in the Personal
Property, and each instrument of further assurance, including, without
limitation, Uniform Commercial Code financing statements and continuation
statements, to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and full, to perfect, preserve and protect the Lien hereof upon the
Personal Property. Mortgagor hereby appoints and authorizes Mortgagee to act on
behalf of Mortgagor upon Mortgagor's failure to comply with the provisions of
this subsection 2.2.2.
<PAGE>
2.2.3 Upon the occurrence of any Event of Default, in addition to the
remedies set forth in Article 3, Mortgagee shall have the power to foreclose
Mortgagor's right of redemption in the Personal Property by sale of the Personal
Property in accordance with the Uniform Commercial Code as enacted in the state
in which the Premises are located or under other applicable law in such state.
It shall not be necessary that any Personal Property offered be physically
present at any such sale or constructively in the possession of Mortgagee or the
person conducting the sale.
2.2.4 Upon the occurrence of any Event of Default, Mortgagee may sell the
Personal Property or any part thereof at public or private sale with notice to
Mortgagor as hereinafter provided. The proceeds of any such sale, after
deducting all expenses of Mortgagee in taking, storing, repairing and selling
the Personal Property (including, without limitation, attorneys' fees and the
allocated costs of staff counsel) shall be applied in the manner set forth in
subsection 3.3.3. At any sale, public or private, of the Personal Property or
any part thereof, Mortgagee (or any Lender) may purchase any or all of the
Personal Property offered at such sale.
2.2.5 Mortgagee shall give Mortgagor reasonable notice of any sale of any
of the Personal Property pursuant to the provisions of this Section 2.2.
Notwithstanding the provisions of Section 4.2, any such notice shall
conclusively be deemed to be reasonable and effective if such notice is mailed
at least ten (10) days prior to any sale, by first class or certified mail,
postage prepaid, to Mortgagor at its address determined in accordance with the
provisions of Section 4.2.
2.2.6 As to such portion of the Mortgaged Property as is or may become
fixtures, affixed to the real estate described in Schedule "A" hereto, this
instrument shall constitute a Financing Statement, perfected as to such fixtures
from the time of the filing hereof in the Real Estate Mortgage Records of
Sebastian County, Arkansas.
The following information is accordingly included:
(a) The name of the debtor is American Standard Inc., a
Delaware corporation.
(b) The name of the secured party is Chemical Bank, as
Collateral Agent, a New York banking corporation, having its principal
place of business at 270 Park Avenue, New York, New York 10017.
(c) The address of the secured party from which information
may be obtained is set forth in Section 4.2 of this instrument.
<PAGE>
(d) The mailing address of the debtor is set forth in
Section 4.2 of this instrument.
(e) A description of the collateral is set forth in the
Granting Clauses hereof.
(f) A legal description of the real estate to which the
collateral is or may become fixed is set forth in Schedule "A" hereto.
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES
SECTION 3.l Events of Default. Each of the following shall constitute an
Event of Default:
3.1.1 If there shall occur under (i) the Credit Agreement an "Event of
Default" (as such term is defined in the Credit Agreement, as applicable) by or
relating to Mortgagor or any default in payment by Mortgagor when due under the
Guaranty, or (ii) any lease, deed of trust, mortgage, covenant or agreement
affecting the Mortgaged Property that is superior in priority to the Lien of
this Mortgage, any default by Mortgagor which is not cured prior to the
expiration of any applicable cure period set forth in such lease, mortgage,
covenant or agreement.
3.1.2 If Mortgagor shall fail to perform or observe any term, condition or
covenant hereof and such failure shall continue unremedied for twenty (20) days,
unless such failure requires work to be performed, acts to be done, or
conditions to be removed which cannot, by their nature, reasonably be performed,
done or removed, as the case may be, within such twenty (20) day period, in
which case no Event of Default shall be deemed to exist so long as Mortgagor
shall have commenced cure within such twenty (20) day period and shall
diligently prosecute the same to completion.
SECTION 3.2 Remedies in Case of an Event of Default. If any Event of
Default shall have occurred, Mortgagee may, in addition to any other action
permitted by law, take one or more of the following actions:
3.2.1 by written notice to Mortgagor, declare the entire unpaid amount of
the Obligations to be due and payable immediately;
3.2.2 personally, or by its agents or attorneys, (i) enter into and upon
all or any part of the Mortgaged Property and exclude Mortgagor, its agents and
servants wholly therefrom, (ii) use, operate, manage and control the Premises
and the Equipment and conduct the business thereof, (iii) maintain and restore
the Mortgaged Property, (iv) make all necessary or proper repairs, renewals and
replacements and such useful Alterations thereto and thereon as Mortgagee may
deem advisable, (v) manage, lease and operate the Mortgaged Property and carry
on the business thereof and exercise all rights and powers of Mortgagor with
respect thereto either in the name of Mortgagor or otherwise, or (vi) collect
and receive all earnings, revenues, rents, issues, profits and income of the
Mortgaged Property and every part thereof;
11
<PAGE>
3.2.3 with or without entry, personally or by its agents or attorneys, (i)
sell the Mortgaged Property and all estate, right, title and interest, claim and
demand therein at one or more sales as an entity or in parcels, and at such time
and place upon such terms and after such notice thereof as may be required or
permitted by law, or (ii) institute and prosecute proceedings for the complete
or partial foreclosure of the Lien of this Mortgage; or
3.2.4 take such steps to protect and enforce its rights whether by action,
suit or proceeding at law or in equity for the specific performance of any
covenant, condition or agreement in the Credit Agreement, the Guaranty, or in
aid of the execution of any power granted in this Mortgage, or for any
foreclosure hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as Mortgagee shall elect.
SECTION 3.3 Sale of Mortgaged Property if Event of Default Occurs; Proceeds
of Sale.
3.3.1 On the completion of any sale or sales by Mortgagee made under or by
virtue of this Article 3, Mortgagee, or an officer of any court empowered to do
so, shall execute and deliver to the accepted purchaser or purchasers a good and
sufficient instrument or instruments conveying, assigning and transferring all
estate, right, title and interest in and to the property and rights sold.
Mortgagee is hereby irrevocably appointed the true and lawful agent and attorney
of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold, and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, and Mortgagor hereby ratifies and confirms all that Mortgagee or any
such substitute shall lawfully do by virtue hereof. This power of attorney is
coupled with the interest of Mortgagee created by this Mortgage. Mortgagor shall
ratify and confirm any such sale or sales by executing and delivering to
Mortgagee or such purchaser or purchasers all instruments as may be requested
for such purpose. Any such sale or sales made under or by virtue of this Article
3 shall operate to divest all the estate, right, title, interest, claim and
demand whatsoever, whether at law or in equity, of Mortgagor in and to the
properties and rights so sold, and shall be a perpetual bar both at law and in
equity against Mortgagor and against any and all persons claiming or who may
claim the same, or any part thereof from, through or under Mortgagor.
3.3.2 In the event of any sale made under or by virtue of this Article 3,
the entire principal of, and interest in respect of the Obligations, if not
previously due and payable, shall, at the option of Mortgagee, immediately
become due and payable, anything in this Mortgage to the contrary
notwithstanding.
<PAGE>
3.3.3 The proceeds of any sale made under or by virtue of this Article 3,
together with any other sums which then may be held by Mortgagee under this
Mortgage, whether under the provisions of this Article 3 or otherwise, shall be
applied as follows:
First: to the payment of the costs and expenses of such sale, including
compensation to Mortgagee, its agents and attorneys, and of any judicial or
private proceedings in which such sale may be made, and of all other expenses,
liabilities and advances made or incurred by Mortgagee under this Mortgage,
together with interest at the Default Rate on such costs, expenses and
liabilities and on all advances made by Mortgagee from the date any such cost,
expense or liability is due, owing or unpaid or any such advance is made, in
each case until paid in full;
Second: to the payment of all amounts whether or not then due, owing or
unpaid by Mortgagor under the Credit Agreement, the Guaranty and all amounts
whether or not then due, owing or unpaid under ASI-BV Intercompany Note, other
than interest and principal and amounts payable under subparagraph "First"
above, together with interest on each such amount at the Default Rate from and
after the date such amount is due, owing or unpaid until paid in full, all of
which amounts shall be distributed to the Lenders and the BV Borrower,
respectively, so that each receives an amount equal to the product of (i) the
total amount available for payment under this subparagraph, and (ii) a fraction,
the numerator of which is the total amount of the Obligations then outstanding
to the BV Borrower or such Lender, as the case may be, and the denominator of
which is the total amount of the Obligations then outstanding;
Third: to the payment of the interest whether or not then due, owing or
unpaid in respect of the Obligations, together with, to the maximum extent
permitted by law, interest thereon at the Default Rate from the date such amount
is due, owing or unpaid until paid in full, which interest shall be distributed
to the Lenders and the BV Borrower, respectively, so that each receives an
amount equal to the product of (i) the total amount available for payment under
this subparagraph, and (ii) a fraction, the numerator of which is the total
amount of the Obligations then outstanding to the BV Borrower or such Lender, as
the case may be, and the denominator of which is the total amount of the
Obligations then outstanding;
Fourth: to the payment of the amounts of principal whether or not then due,
owing or unpaid in respect of the Obligations, with interest on such unpaid
principal at the Default Rate from and after the happening of any Event of
Default until paid in full, which amounts shall be distributed to the Lenders
and the BV Borrower, respectively, so that each receives an amount equal to the
product of (i) the total amount available for payment under this subparagraph,
<PAGE>
and (ii) a fraction, the numerator of which is the total amount of the
Obligations then outstanding to the BV Borrower or such Lender, as the case may
be, and the denominator of which is the total amount of the Obligations then
outstanding; and
Fifth: the surplus, if any, to be paid to whomever lawfully may be entitled
to receive such surplus.
3.3.4 Mortgagee (or any Lender) may bid for and acquire the Mortgaged
Property or any part thereof at any sale made under or by virtue of this Article
3 and, in lieu of paying cash therefor, may make settlement for the purchase
price by crediting against the purchase price the unpaid amounts whether or not
then due and owing in respect of the Obligations, after deducting from the sales
price the expenses of the sale and the costs of the action or proceedings and
any other sums that Mortgagee (or such Lender) is authorized to deduct under
this Mortgage.
3.3.5 Mortgagee may adjourn from time to time any sale by it to be made
under or by virtue of this Mortgage by announcement at the time and place
appointed for such sale or for such adjourned sale or sales, and, except as
otherwise provided by any applicable provision of law, Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
SECTION 3.4 Additional Remedies in Case of an event of Default.
3.4.1 Mortgagee shall be entitled to recover judgment as aforesaid either
before, after or during the pendency of any proceedings for the enforcement of
the provisions of this Mortgage, and the right of Mortgagee to recover such
judgment shall not be affected by any entry or sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the
provisions of this Mortgage, or the foreclosure of the Lien of, or absolute
conveyance pursuant to, this Mortgage. In case of proceedings against Mortgagor
in insolvency or bankruptcy or any proceedings for its reorganization or
involving the liquidation of its assets, Mortgagee shall be entitled to prove
the whole amount of principal and interest due in respect of the Obligations to
the full amount thereof without deducting therefrom any proceeds obtained from
the sale of the whole or any part of the Mortgaged Property; provided, however,
that in no case shall Mortgagee receive a greater amount than the aggregate of
such principal, interest and such other payments, charges and costs (with
interest at the Default Rate) from the proceeds of the sale of the Mortgaged
Property and the distribution from the estate of Mortgagor.
3.4.2 Any recovery of any judgment by Mortgagee and any levy of any
execution under any judgment upon the Mortgaged Property shall not affect in any
manner or to any extent the Lien of this Mortgage upon the Mortgaged Property or
any part thereof, or any Liens, conveyances, powers, rights and remedies of
Mortgagee hereunder, but such Liens, conveyances, powers, rights and remedies
shall continue unimpaired as before.
15
<PAGE>
3.4. Any moneys collected by Mortgagee under this Section 3.4 shall be
applied in accordance with the provisions of subsection 3.3.3.
SECTION 3.5 Legal Proceedings after an Event of Default. 3.5.1 After the
occurrence of any Event of Default and immediately upon the commencement of any
action, suit or legal proceedings to obtain judgment for the Obligations or any
part thereof, or of any proceedings to foreclose the Lien of or otherwise
enforce the provisions of this Mortgage or of any other proceedings in aid of
the enforcement of this Mortgage, Mortgagor shall enter its voluntary appearance
in such action, suit or proceeding.
3.5.2 Upon the occurrence of an Event of Default, Mortgagee shall be
entitled forthwith as a matter of right, either before or after declaring the
Obligations or any part thereof to be due and payable, to the appointment of a
receiver without giving notice to any party and without regard to the adequacy
or inadequacy of any security for the Obligations.
3.5.3 Mortgagor shall not (i) at any time insist upon, or plead, or in any
manner whatsoever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time
hereafter in force, which may affect the covenants and terms of performance of
this Mortgage, (ii) claim, take or insist on any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to any sale or sales of the
Mortgaged Property which may be made pursuant to this Mortgage, or pursuant to
any decree, judgment or order of any court of competent jurisdiction, or (iii)
after any such sale or sales, claim or exercise any right under any statute
heretofore or hereafter enacted to redeem the property so sold or any part
thereof. Mortgagor hereby expressly waives all benefit or advantage of any such
law or laws, including, without limitation, all right of redemption under the
Act of May 8, 1899 of the General Assembly of Arkansas, and acts amendatory
thereof, and any statute of limitations applicable to this Mortgage and any and
all rights to trial by jury in any action or proceeding related to the
enforcement of this Mortgage, and covenants not to hinder, delay or impede the
execution of any power granted or delegated to Mortgagee by this Mortgage, but
to suffer and permit the execution of every such power as though no such law or
laws had been made or enacted. Mortgagor, for itself and all who may claim under
it, waives all right to have the Mortgaged Property marshaled on any foreclosure
of this Mortgage.
SECTION 3.6 Remedies Not Exclusive. No remedy conferred upon or reserved to
Mortgagee by this Mortgage is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative and shall be in
<PAGE>
addition to every other remedy given under this Mortgage or now or hereafter
existing at law or in equity. Any delay or omission of Mortgagee to exercise any
right or power accruing on any Event of Default shall not impair any such right
or power and shall not be construed to be a waiver of or acquiescence in any
such Event of Default. Every power and remedy given by his Mortgage may be
exercised from time to time as often as may be deemed expedient by Mortgagee. If
Mortgagee accepts any moneys required to be paid by Mortgagor under this
Mortgage after the same becomes due, such acceptance shall not constitute a
waiver of the right either to require prompt payment, when due, of all other
sums secured by this Mortgage or to declare an Event of Default with regard to
subsequent defaults. If Mortgagee accepts any moneys required to be paid by
Mortgagor under this Mortgage in an amount less than the sum then due, such
acceptance shall be deemed an acceptance on account only and on the condition
that it shall not constitute a waiver of the obligation of Mortgagor to pay the
entire sum then due, and Mortgagor's failure to pay the entire sum then due
shall be and continue to be an Event of Default notwithstanding acceptance of
such amount on account.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Severability. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Mortgage, but this Mortgage shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein or therein. The invalidity of any provision of this
Mortgage in any one jurisdiction shall not affect or impair in any manner the
validity of such provision in any other jurisdiction. The invalidity or
unenforceability of this Mortgage with respect to any item of or any portion of
the Obligations which it secures shall not invalidate or render unenforceable
this Mortgage or the Lien hereof with respect to any other item or portion of
the Obligations.
<PAGE>
SECTION 4.2 Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, or by a
reputable courier delivery service, or by prepaid telex, TWX or telegram (with
messenger delivery specified in the case of a telegram), or by telecopier, and
shall be deemed to be given for purposes of this Mortgage when delivered in
person, received by telecopy or telex or four (4) business days after depositing
it in the United States mail, registered or certified, with postage prepaid and
properly addressed. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section 4.2, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties at their respective addresses (or to their respective
telex, TWX or telecopier numbers) indicated below:
If to Mortgagor:
American Standard Inc.
15 West 54th Street
New York, New York 10019
Attention: Legal Department
Telephone: (212) 397-7610
Telecopier No.: (212) 397-7617
If to the BV Borrower:
WABCO-Standard HOLDINGS B.V.
Jupiter Straat 262
2132 NH Hoofddorp,
The Netherlands
Attention: W. K. Boonsma
Telephone: 31.2 503 40383
Telecopier No.: 31.2 503 40418
with a copy to:
American Standard Inc.
15 West 54th Street
New York, New York 10019
Attention: Legal Department
Telephone: (212) 397-7610
Telecopier No.: (212) 397-7617
If to Mortgagee:
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Banking and Corporate Finance
Department (10th Floor)
Telephone: (212) 270-3838
Telecopier No.: (212) 972-0009
with a copy to:
<PAGE>
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
Attention: Martin R. Levine, Esq.
Telephone: (212) 474-1950
Telecopier No.: (212) 474-3700
SECTION 4.3 Covenants to Run with the Land. All of the grants, covenants,
terms, provisions and conditions in this Mortgage shall run with the land and
shall apply to, and bind the successors and assigns of Mortgagor.
SECTION 4.4 Captions; Gender and Number. The captions and section headings
of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof. All terms contained herein shall be construed,
whenever the context of this Mortgage so requires, so that the singular includes
the plural and so that the masculine includes the feminine.
SECTION 4.5 Limitation on Interest Payable. It is the intention of the
parties to conform strictly to the usury laws, whether state or federal, that
are applicable to the transaction of which this Mortgage is a part. All
agreements between Mortgagor and the Lenders, and between Mortgagor and the BV
Borrower, whether now existing or hereafter arising and whether oral or written,
are hereby expressly limited so that in no contingency or event whatsoever shall
the amount paid or agreed to be paid by Mortgagor for the use, forbearance or
detention of the money to be loaned under the Credit Agreement, the Guaranty, or
any related document, or for the payment or performance of any covenant or
obligation contained herein or in the Credit Agreement, the Guaranty, or any
related document, exceed the maximum amount permissible under applicable federal
or state usury laws. If under any circumstances whatsoever fulfillment of any
such provision, at the time performance of such provision shall be due, shall
involve exceeding the limit of validity prescribed by law, then the obligation
to be fulfilled shall be reduced to the limit of such validity. If under any
circumstances Mortgagor shall have paid an amount deemed interest by applicable
law, which would exceed the highest lawful rate, such amount that would be
excessive interest under applicable usury laws shall be applied to the reduction
of the principal amount owing in respect of the Obligations and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal and any other amounts due hereunder, the excess shall be refunded to
Mortgagor. All sums paid or agreed to be paid for the use, forbearance or
detention of the principal under any extension of credit by Mortgagee, any of
the Lenders or the BV Borrower shall, to the extent permitted by applicable law,
and to the extent necessary to preclude exceeding the limit of validity
prescribed by law, be amortized, prorated, allocated and spread from the date of
this Mortgage until payment in full of the Obligations so that the actual rate
of interest on account of such principal amounts is uniform throughout the term
hereof.
<PAGE>
SECTION 4.6 Indemnification; Reimbursement. Mortgagor shall reimburse
Mortgagee (and each Lender), upon demand, for all costs and expenses other than
with respect to taxes other than taxes described in Section 1.3.1 incurred by
Mortgagee or such Lender in connection with the administration and enforcement
of this Mortgage, and shall indemnify and hold harmless Mortgagee (and each
Lender), upon demand, from and against any and all losses, liability (including
liabilities for penalties), actions, suits, proceedings, judgments, demands,
costs and expenses other than with respect to taxes other than taxes described
in Section 1.3.1 (including, without limitation, attorneys' fees and the
allocated costs of staff counsel) incurred by Mortgagee (or such Lender)
hereunder or in connection herewith. If any action or proceeding other than with
respect to taxes other than taxes described in Section 1.3.1, including, without
limitation, bankruptcy or insolvency proceedings, is commenced to which action
or proceeding Mortgagee (or any Lender) is made a party or in which it becomes
necessary to defend or uphold the Lien or validity of this Mortgage, Mortgagor
shall, upon demand, reimburse Mortgagee (or such Lender) for all expenses
(including, without limitation, attorneys' fees and the allocated costs of staff
counsel) incurred by Mortgagee (or such Lender) in such action or proceeding. In
any action or proceeding to foreclose this Mortgage or to recover or collect the
Obligations, the provisions of law relating to the recovering of costs,
disbursements and allowances shall prevail unaffected by this covenant.
Mortgagor's obligations under this Section 4.7 shall survive the satisfaction of
this Mortgage and the discharge of Mortgagor's other obligations hereunder. The
provisions of this Section 4.7 shall not be construed in limitation of any
provision in the Credit Agreement, the Guaranty, or any document related to any
thereof.
SECTION 4.7 Choice of Law. To the extent permitted by law, this Mortgage
shall be governed by and construed in accordance with the laws of the State of
New York; otherwise, enforcement of remedies shall be governed by and construed
in accordance with the laws of the state where the Land is located.
SECTION 4.8 No Merger. The rights and estate created by this Mortgage shall
not, under any circumstances, be held to have merged into any other estate or
interest now owned or hereafter acquired by Mortgagee unless Mortgagee shall
have consented to such merger in writing.
SECTION 4.9 Changes in Writing. This Mortgage may not be modified, amended,
discharged or waived in whole or in part except by an instrument in writing
signed by (i) Mortgagor, to the extent any modification, amendment, discharge or
waiver is sought to be enforced against Mortgagor, and (ii) Mortgagee, to the
extent any modification, amendment, discharge or waiver is sought to be enforced
against Mortgagee.
SECTION 4.10 Mortgagee's Right to Sever Indebtedness. (i) Mortgagor
acknowledges that (a) the Mortgaged Property does not constitute the sole source
of security for the payment and performance of the Obligations and that the
Obligations are also secured by property of Mortgagor and its affiliates in
other jurisdictions (all such property, "Collateral"), (b) the number of such
jurisdictions and the nature of the transaction of which this instrument is a
part, are such that it would have been impracticable for the parties to allocate
to each item of Collateral a specific loan amount and to execute in respect of
such item a separate credit agreement and (c) Mortgagor intends that Mortgagee
have the same rights with respect to the Mortgaged Property, in foreclosure or
otherwise, that Mortgagee would have had if each item 15
<PAGE>
of Collateral had been mortgaged or pledged pursuant to a separate credit
agreement and mortgage or security document. In furtherance of such intent,
Mortgagor agrees that Mortgagee may at any time by notice ("Allocation Notice")
to Mortgagor allocate a portion (the "Allocated Indebtedness") of the
Obligations to the Mortgaged Property and sever from the remaining Obligations
the Allocated Indebtedness. From and after the giving of an Allocation Notice
with respect to the Mortgaged Property, the Obligations hereunder shall be
limited to the extent set forth in the Allocation Notice and (as so limited)
shall, for all purposes, be construed as a separate loan obligation of Mortgagor
unrelated to the other transactions contemplated by the Credit Agreement. To the
extent that the proceeds on any foreclosure of the Mortgaged Property shall
exceed the Allocated Indebtedness, such proceeds shall belong to Mortgagor and
shall not be available hereunder to satisfy any Obligations of Mortgagor other
than the Allocated Indebtedness. In any action or proceeding to foreclose the
Lien of this Mortgage or in connection with any power of sale foreclosure or
other remedy exercised under this Mortgage commenced after the giving by
Mortgagee of an Allocation Notice, the Allocation Notice shall be conclusive
proof of the limits of the Obligations hereby secured, and Mortgagor may
introduce, by way of defense or counterclaim, evidence thereof in any such
action or proceeding.
(ii) Mortgagor hereby waives to the greatest extent permitted under law the
right to a discharge of any of the Obligations under any statute or rule of law
now or hereafter in effect which provides that foreclosure of the Lien of this
Mortgage or other remedy exercised under this Mortgage constitutes the exclusive
means for satisfaction of the Obligations or which makes unavailable a
deficiency judgment or any subsequent remedy because Mortgagee elected to
proceed with a power of sale foreclosure or such other remedy or because of any
failure by Mortgagee to comply with laws that prescribe conditions to the
entitlement to a deficiency judgment. In the event that, notwithstanding the
foregoing waiver, any court shall for any reason hold that Mortgagee is not
entitled to a deficiency judgment, Mortgagor shall not (a) introduce in any
other jurisdiction such judgment as a defense to enforcement against Mortgagor
of any remedy in the Credit Agreement or any security document related to or
executed in connection with the Credit Agreement or (b) seek to have such
judgment recognized or entered in any other jurisdiction, and any such judgment
shall in all events be limited in application only to the state or jurisdiction
where rendered.
(iii) In the event any instrument in addition to the Allocation Notice is
necessary to effectuate the provisions of this Section, including, without
limitation, any amendment to this Mortgage, any substitute promissory note or
affidavit or certificate of any kind, Mortgagee may
<PAGE>
execute and deliver such instrument as the attorney-in-fact of Mortgagor.
IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor as of
the date first written above.
AMERICAN STANDARD INC.
Witness:
____________________________________ By:______________________
Title:
Witness:
____________________________________ By:______________________
Title:
SEAL
This instrument prepared by and, after recording, return to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eight Avenue
New York, New York 10019-7475
Attention: Martin R. Levine, Esq.
]
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this day of , 1993, before me, a Notary Public duly commissioned,
qualified and acting within and for said County and State, personally appeared
and , who acknowledged that they were the and , respectively, of AMERICAN
STANDARD INC., a corporation, and were duly authorized in their respective
capacities to execute the foregoing instrument for and in the name and behalf of
said corporation, and further stated and acknowledged that they had so signed,
executed and delivered said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of
, 1993.
Notary Public
Printed
My Commission Expires: County of Residence
----------------------
<PAGE>
Perfection Certificate
Dated as of February 9, 1995
With reference to (i) the Amended and Restated Credit Agreement (the "1995
Credit Agreement") dated as of the date hereof among American Standard Companies
Inc., American Standard Inc. ("ASI"), certain subsidiaries of ASI (the
"Subsidiary Borrowers"), Chemical Bank, as administrative agent, and the other
parties thereto, and (ii) the Domestic Security Agreements and the Domestic
Securities Pledge Agreements, the officers named below of ASI, after due
investigation, hereby certify as of the date hereof to Chemical Bank and each
Lender as follows (except as otherwise defined in this Certificate, capitalized
terms used herein and defined in the 1995 Credit Agreement shall have the
meanings assigned to them in the 1995 Credit Agreement):
Attached hereto as Annex A is the Perfection Certificate (the "1993
Perfection Certificate") delivered in connection with the Amended and Restated
Credit Agreement, dated as of June 1, 1993.
Names. Set forth on Schedule l(a) hereto is the exact corporate name of ASI
and each of the Subsidiary Guarantors who are Domestic Subsidiaries (the
"Grantors") as such name appears in its respective certificate of incorporation
or equivalent document.
Set forth on Schedule 1(b) hereto is a list of each other corporate name
(if any) each Grantor has had since June 1, 1993.
1 Set forth on Schedule 1(c) hereto is a true and correct list of all other
names (including trade names or similar appellations) (not previously disclosed
in the 1993 Perfection Certificate) principally used by each Grantor or any of
its divisions or other business units other than those disposed of prior to the
date hereof in connection with the conduct of its business or the ownership of
its properties at any time since June 1, 1993.
1 Executive Offices. Schedule 2(a) hereto discloses any chief executive
office of each Grantor which is different from the chief executive office
disclosed in the 1993 Perfection Certificate. 1 1 1 1 1 Schedule 2(b) discloses
any location at which each Grantor maintains its principal books and records
relating to its business, properties and assets which is different from the
locations disclosed in the 1993 Perfection Certificate. 1 1 Real Property.
Attached as Schedule 3(a) hereto is a true and correct list of all real property
owned by any Grantor having a fair market value of at least US$100,000 which is
not disclosed in the 1993 Perfection Certificate. The aggregate fair market
value of all real property owned by the Grantors other than the real property
set forth on Schedule 3(a) to this Perfection Certificate or the 1993 Perfection
Certificate does not exceed US$10,000,000.
1 Attached as Schedule 3(b) hereto is a true and correct list of all leases
of real property owned by any Grantor, having a term to
<PAGE>
expiration of 10 years or more and annual rental payments (net of taxes and
utilities) in excess of $1,000,000 which are not disclosed in the 1993
Perfection Certificate.
1 Attached as Schedule 3(c) hereto is a true and correct list of all
locations (other than those set forth on Schedules 2(a), 2(b), 3(a), 3(b), 4 or
5 to this Perfection Certificate or the 1993 Perfection Certificate) at which
the Grantors or any of them maintain assets having a fair market value of not
less than US$2,000,000. The aggregate fair market value of assets maintained by
the Grantors at locations other than those set forth on Schedules 2(a), 2(b),
3(a), 3(b) or 3(c), 4 or 5 to this Perfection Certificate or the 1993 Perfection
Certificate does not exceed US$10,000,000.
1 Attached as Schedule 3(d) hereto is a true and correct list of all
Principal Properties (as defined in the Senior Indentures) which are not
disclosed in the 1993 Perfection Certificate.
1 Inventory. Attached as Schedule 4 hereto is a true and correct list of
all locations which are not disclosed in the 1993 Perfection Certificate at
which the Grantors or any of them maintain inventory having a cost value of not
less than US$1,000,000. The aggregate cost value of inventory maintained by the
Grantors at locations other than those set forth on Schedule 4 to this
Perfection Certificate or the 1993 Perfection Certificate does not exceed
US$5,000,000.
1 Plant, Machinery and Equipment. Attached as Schedule 5 hereto is a true
and correct list of all locations at which the Grantors or any of them maintain
plant, machinery and equipment having a fair market value of not less than
US$1,000,000 which are not disclosed in the 1993 Perfection Certificate. The
aggregate fair market value of plant, machinery and equipment maintained by the
Grantors at locations other than those set forth on Schedule 5 to this
Perfection Certificate or the 1993 Perfection Certificate does not exceed
US$10,000,000.
1 Transportation. Attached as Schedule 6 hereto is a true and correct list
of all aircraft, rail cars, vessels and vehicles owned by any of the Grantors
(including registration numbers and particulars in respect thereof) save for
aircraft, rail cars, vessels and vehicles having a fair market value of not more
than US$100,000 each and not more than US$1,000,000 in aggregate which are not
disclosed in the 1993 Perfection Certificate.
1 Intellectual Property. Attached as Schedule 7 hereto is a true and
correct list as of December 31, 1994 (a) of all patents, copyrights and
trademarks which are of importance to the Grantors' business as currently
conducted and which are applied for or registered in the name of any Grantor in
the United States, Canada, France, Germany or the United Kingdom and (b) to the
best knowledge and belief of each Grantor based upon a reasonable search, of all
other patents, copyrights and trademarks of the Grantors or their subsidiaries
which are of importance to the Grantors business as currently conducted together
with details of all registrations and filings relating thereto, which are not
disclosed in the 1993 Perfection Certificate. The Grantors have made all
<PAGE>
necessary filings and recordations to preserve their interests in patents,
copyrights and trademarks except where failure to do so would not have
reasonably been expected to have a material adverse effect upon the business of
any Grantor taken as a whole.
1 Stock Ownership. Attached hereto as Schedule 8(a) is a true and correct
list of each direct and indirect subsidiary of ASI and ownership interest
therein expressed as a percentage. For the purposes hereof, a subsidiary is an
entity in which another entity has either majority ownership or power to direct
the voting of a majority of its shares.
1 Attached hereto as Schedule 8(b) is a true and correct list of each stock
investment (other than joint ventures) of each Grantor (not listed on Schedule
8(a) hereto) which has a fair market value of US$100,000 or more. The aggregate
fair market value of stock investments of each Grantor other than those set
forth on Schedules 8(a) hereto and 8(b) does not exceed US$1,000,000.
1 Attached hereto as Schedule 8(c) is a true and correct list of each
partnership and joint venture investment of each Grantor which has a fair market
value of US$1,000,000 or more, or for which any such entity is liable to make
capital or other contributions of US$1,000,000 or more which are not disclosed
in the 1993 Perfection Certificate.
1 Attached hereto as Schedule 8(d) is a true and correct list of all
entities which have become Restricted Subsidiaries (as defined in the Senior
Indentures) since June 1, 1993.
1 Intercompany Loans. Attached hereto as Schedule 9 is a true and correct
list of all intercompany loans or advances made by or to ASI or any of its
direct and indirect subsidiaries. For the purposes hereof, a subsidiary is an
entity in which another entity has either majority ownership or power to direct
the voting of a majority of its shares.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of February
1995.
AMERICAN STANDARD INC.
By
Name:
<PAGE>
Section 2.18(e)(ii) Certificate
To: U.K. Borrower and Administrative Agent
From: [Lender]
Dated:
Re: Amended and Restated Credit Agreement dated as of February 9, 1995
among American Standard Companies Inc. and certain of its Subsidiaries, Chemical
Bank, as Administrative Agent for the Lenders, etc.
Gentlemen:
In connection with the above-referred Agreement, we hereby certify, under
penalties of perjury, that the undersigned [is managed and controlled from and
incorporated under the laws of the United Kingdom] [is making all of its loans
to the U.K. Borrower through a lending branch or lending office located with the
United Kingdom].
[Name of Lender]
By:_____________________
Title:___________________
<PAGE>
Exhibit I-1 to the
Credit Agreement
[Form of Supplemental Guarantee]
SUPPLEMENT NO.--- dated as of--- , to the Amended, Consolidated and
Restated Guarantee dated as of June-1, 1993 (as amended and supplemented through
the date hereof, the "Guarantee"), by AMERICAN STANDARD COMPANIES INC. (formerly
known as ASI Holding Corporation), AMERICAN STANDARD INC. ("ASI") and certain
Subsidiaries of ASI (collectively the "Guarantors") in favor of CHEMICAL BANK,
as collateral agent (the "Collateral Agent") and the other Guaranteed Creditors,
as defined therein. Except as otherwise defined herein, terms used herein and
defined in the Guarantee and the 1995 Credit Agreement (as defined below) shall
be used herein as so defined.
The Guarantors entered into the Guarantee in order to induce the Lenders to
extend credit under the Amended and Restated Credit Agreement dated as of
February 9, 1995 (as amended, supplemented or otherwise modified from time to
time, the "1995 Credit Agreement") with certain lending institutions named
therein, Chemical, as Administrative Agent, Citibank, N.A. and NationsBank, N.A.
(Carolinas), as Senior Managing Agents, Bank of America National Trust and
Saving Association, The Bank of Nova Scotia, Bankers Trust Company, The Chase
Manhattan Bank, N.A., Compagnie Financiere de Cic et de L'Union Europeene,
Credit Suisse, Deutsche Bank AG, The Industrial Bank of Japan,-Limited, The
Long-Term Credit Bank of Japan, Limited and The Sumitomo Bank,-Ltd., as Managing
Agents, and The Bank of New York, Canadian Imperial Bank of Commerce, The Fuji
Bank, Limited and The Sanwa Bank Limited, as Co-Agents, the Dutch Borrower to
continue to extend credit under the ASI-BV Intercompany Note and the Swap
Providers to enter into Swap Agreements. The Guarantee envisages that additional
Subsidiaries may become Guarantors under the Guarantee by execution and delivery
of an instrument in the form of this Supplement. Pursuant to Section 5.12 of the
1995 Credit Agreement, the undersigned Subsidiary (the "New Guarantor") is
required to become a Guarantor under the Guarantee. The New Guarantor desires to
become a Guarantor under the Guarantee in order to induce the Guaranteed
Creditors to continue to extend credit under the 1995 Credit Agreement or the
ASI-BV Intercompany Note or to enter into Swap Agreements, as the case may be,
and as consideration therefor.
Accordingly, the Collateral Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 26 of the Guarantee, the New
Guarantor by its signature hereto shall become a Guarantor under the Guarantee
with the same force and effect as if originally named therein as a Guarantor and
the New Guarantor hereby (i) agrees to all the terms and provisions of the
Guarantee applicable to it as a Guarantor thereunder, (ii) represents and
warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and as of the date hereof and (iii)
acknowledges receipt of a copy of and agrees to be bound by the terms of the
Guarantee and the 1995 Credit Agreement. Each reference to a "Guarantor" in the
Guarantee shall be deemed to include the New Guarantor. The Guarantee is hereby
incorporated herein by reference.
SECTION 2. This Supplement shall become effective upon delivery to the
Collateral Agent of this Supplement executed on behalf of the New Guarantor.
SECTION 3. The New Guarantor hereby represents and warrants that (i) this
Supplement has been duly authorized, executed and delivered by the New Guarantor
and constitutes a legal, valid and binding obligation of the New Guarantor,
enforceable against it in accordance with its terms, (ii) attached hereto is a
duly completed Perfection Certificate relating to the New Guarantor and (iii)
set forth under its signature hereto is its address for purposes of notices
under the Guarantee.
<PAGE>
SECTION 4. Except as expressly supplemented hereby, the Guarantee shall
remain in full force and effect in accordance with its terms.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO NEW YORK'S
CONFLICT OF LAW PROVISIONS (OTHER THAN NEW YORK STATE GENERAL OBLIGATIONS LAW
5-1401).
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace any invalid,
illegal or unenforceable provisions herein with valid provisions, the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees and expenses of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Guarantee as of the day and year first above
written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
Name:
Title:
Notice Address:
<PAGE>
Exhibit I-2 to the
Credit Agreement
[Form of Foreign Supplemental Guarantee]
GUARANTEE, (the "Guarantee") dated as of
[---], [---], made by [-------] (the "Guarantor") in
favor of and for the benefit of Chemical Bank
("Chemical") as collateral agent for and
representative of (in such capacity herein called the
"Collateral Agent") the Lenders, the Lenders, the
Senior Managing Agents, the Managing Agents, the
Co-Agents and the Administrative Agent under the 1995
Credit Agreement (as defined below) and each of their
respective successors and assigns. Except as
otherwise defined in this Guarantee, capitalized
terms used herein and defined in the 1995 Credit
Agreement shall have the meaning assigned to them in
the 1995 Credit Agreement.
Preliminary Statements
A. American Standard Companies Inc. ("Holding"), American
Standard Inc. ("ASI") and certain subsidiaries of ASI (the "Subsidiary
Borrowers"), have executed an Amended and Restated Credit Agreement dated as of
February 9, 1995 (as amended, supplemented or otherwise modified from time to
time, the "1995 Credit Agreement") with certain lending institutions named
therein, Chemical, as Administrative Agent, Citibank, N.A. and NationsBank, N.A.
(Carolinas), as Senior Managing Agents, Bank of America National Trust and
Saving Association, The Bank of Nova Scotia, Bankers Trust Company, The Chase
Manhattan Bank, N.A., Compagnie Financiere de Cic et de L'Union Europeene,
Credit Suisse, Deutsche Bank AG, The Industrial Bank of Japan, Limited, The
Long-Term Credit Bank of Japan, Limited and The Sumitomo Bank, Ltd., as Managing
Agents, and The Bank of New York, Canadian Imperial Bank of Commerce, The Fuji
Bank, Limited and The Sanwa Bank Limited, as Co-Agents.
B. The Guarantor, the Borrowers and their Subsidiaries are
engaged in their various businesses as part of a group which operates a
consolidated cash management system pursuant to which funds are allocated among
members of the group on an as-and-when-needed basis. The Guarantor expects to
derive benefit, directly or indirectly, from the continued use of the foregoing
procedure, from the proceeds of the Loans and the issuance of the Letters of
Credit pursuant to the terms of the 1995 Credit Agreement, in each case both
individually and as a member of the group, and because the financial condition
of the Guarantor depends upon the financial performance of the Borrowers and the
group as a whole, the Collateral Agent, the Lenders, the Senior Managing Agents,
the Managing Agents, the Co-Agents and the Administrative Agent (collectively,
the "Guaranteed Creditors") have required the Guarantor as a condition precedent
to making the Loans and issuing or participation in the Letters of Credit
pursuant to the terms of the 1995 Credit Agreement, and the Guarantor has
agreed, to guarantee the Guaranteed Obligations (as hereinafter defined) upon
the terms set forth in this Guarantee. In order to induce the Lenders to make
the Loans and to issue or participate in the Letters of Credit, the Guarantor is
willing to execute and deliver this Guarantee.
C. In consideration of the above-described extensions of
credit to the Borrowers, and other benefits accruing to the Guarantor, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby
makes the following representations and warranties to the Collateral Agent and
each other Guaranteed Creditor and hereby covenants and agrees with the
Collateral Agent and each other Guaranteed Creditor as follows:
<PAGE>
1. The Guarantor irrevocably and unconditionally guarantees
the payment and performance in full in the applicable currency of the
Obligations (but excluding Obligations arising under any Guarantee Document
other than this Guarantee and excluding the Domestic Obligations) (the
"Guaranteed Obligations"), and whether for principal, premium, interest
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to any Subsidiary Borrower other than American
Standard Credit Inc. (the "Guaranteed Borrowers"), would accrue on such
obligations) or other amounts so that, in each case, the beneficiaries will
receive, after giving effect to any Taxes, the full amount that they would
otherwise be entitled to receive with respect to the Guaranteed Obligations. The
right of a Guaranteed Creditor to receive payments with respect to Taxes shall
be subject to the limitations of Section 2.18 of the 1995 Credit Agreement, and
each Guaranteed Creditor and Guarantor shall have the rights and obligations
specified in such Section 2.18, in each case treating such Guaranteed Creditor
as a Lender and the Guarantor as a Borrower.
2. The Guarantor understands, agrees and confirms that this is
a guarantee of payment when due and not of collection and that, subject to the
limitations set forth in this Guarantee, each Guaranteed Creditor may enforce
this Guarantee up to the full amount of the Guaranteed Obligations owed to such
Guaranteed Creditor without proceeding against any Borrower, against any
security for the Guaranteed Obligations, against any other guarantor or under
any other guarantee covering the Guaranteed Obligations.
3. The Guarantor hereby waives, to the fullest extent
permitted by applicable law, notice of acceptance of this Guarantee, notice of
any liability to which it may apply, presentment, demand of payment, protest,
notice of dishonor or nonpayment of any such liabilities, suit or taking of
other action by the Collateral Agent or the Guaranteed Creditors against, and
any other notice to, any party liable thereon (including the Guarantor or any
other guarantor).
4. The Collateral Agent and any other Guaranteed Creditor may
at any time and from time to time without the consent of, or notice to, the
Guarantor, without incurring responsibility to the Guarantor, without impairing
or releasing the obligations of the Guarantor hereunder or under any security
provided by the Guarantor for performance of its obligations hereunder, upon or
without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment (including the currency
thereof) of, and/or change or extend the time of payment of, renew or alter, any
of the Guaranteed Obligations, any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guarantee herein made shall
apply to the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal with
in any manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset there against;
(c) fail to assert any claims or demand or exercise or refrain from
exercising any rights or remedies against any Borrower or others or otherwise
act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and subordinate the payment of all
or any part thereof to the payment of any liability (whether due or not) of any
Borrower;
<PAGE>
(e) apply any sum by whomsoever paid or howsoever realized to any liability
or liabilities of any Borrower, or any other guarantor of any Guaranteed
Obligations to the Guaranteed Creditors regardless of what liability or
liabilities of the Borrowers remain unpaid; and/or
(f) consent to or waive any breach of, or any act, omission or default
under, the 1995 Credit Agreement or any other Credit Documents or otherwise
amend, modify or supplement the 1995 Credit Agreement, any other Credit
Documents or any of such other instruments or agreements.
5. To the extent permitted by applicable law, no invalidity,
irregularity or unenforceability of all or part of the Guaranteed Obligations or
of any security therefor shall affect, impair or be a defense to this Guarantee,
and this Guarantee is a primary obligation of the Guarantor.
6. If and to the extent that the Guarantor makes any payment
to the Collateral Agent or any other Guaranteed Creditor or to any other person
pursuant to or in respect of this Guarantee, any claim which the Guarantor may
have against any Guaranteed Borrower or other person by reason thereof shall be
subject and subordinate to, and no payment with respect to any such claim of the
Guarantor shall be made before, the prior payment in full in cash in the
applicable currency of the Guaranteed Obligations owed to each Guaranteed
Creditor.
7. This Guarantee is a continuing guarantee and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of the Collateral Agent or any other Guaranteed Creditor in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Guaranteed Creditor would otherwise have. No notice to or demand on
the Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Collateral Agent or any other Guaranteed Creditor to any other or
further action in any circumstances without notice or demand.
8. The Guarantor represents and warrants that all
representations and warranties contained in the 1995 Credit Agreement which
relate to the Guarantor are true and correct in all material respects and the
Guarantor does not intend to, and does not intend to permit any of its
Subsidiaries, if any, to, incur debts beyond their respective abilities to pay
such debts as they mature, taking into account the timing and amounts of cash to
be received by the Guarantor and each of such Subsidiaries, and of amounts to be
payable on or in respect of debt of the Guarantor and each of such Subsidiaries.
9. (a) The Guarantor hereby agrees upon demand to pay all
reasonable costs and expenses of the Collateral Agent and each other Guaranteed
Creditor in connection with the enforcement of this Guarantee and any amendment,
waiver or consent relating hereto (including, without limitation, the reasonable
fees and disbursements of counsel employed by the Collateral Agent or any other
of the Guaranteed Creditors), except to the extent such costs and expenses
result from the gross negligence or willful misconduct of the Collateral Agent
or such other Guaranteed Creditor (as appropriate).
<PAGE>
(b) The Guarantor agrees to indemnify the Collateral Agent and each other
Guaranteed Creditor for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever, other than with respect to taxes, which may be
imposed on, incurred by, or asserted against the Collateral Agent or any other
Guaranteed Creditor in any way relating to or arising out of this Guarantee or
the enforcement of any of the terms hereof or otherwise arising or relating in
any manner to the Guarantee contemplated hereunder; provided, however, that the
Guarantor shall not be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Collateral Agent or any
other Guaranteed Creditor.
(c) Any such amounts payable as provided hereunder shall be additional
Guaranteed Obligations. The provisions of this Section 9 shall remain operative
and in full force and effect regardless of the termination of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any
of the Loans, the invalidity or unenforceability of any term or provision of
this Guarantee or any Credit Document, or any investigation made by or on behalf
of the Collateral Agent or any Guaranteed Creditor. All amounts due under this
Section 9 shall be payable on written demand therefor.
10. This Guarantee shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the Collateral Agent,
the Guaranteed Creditors and their successors and assigns and, in the event of
any transfer permitted or assignment permitted of rights by a Guaranteed
Creditor or the replacement of the Collateral Agent, the rights and privileges
herein conferred upon that Guaranteed Creditor or the Collateral Agent shall
automatically extend to and be vested in such permitted transferee, assignee or
replacement, all subject to the terms and conditions hereof.
11. Neither this Guarantee nor any provision hereof may be
changed, waived, discharged or terminated, except with the written consent of
the Required Lenders or as otherwise provided in the 1995 Credit Agreement.
12. The Guarantor acknowledges that an executed (or conformed)
copy of the 1995 Credit Agreement and each of the other Credit Documents will be
made available to its principal executive officers.
13. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default each Guaranteed
Creditor is hereby authorized at any time or from time to time, without notice
to the Guarantor or to any other person, any such notice being expressly waived,
to the extent permitted by applicable law, to set off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by such Guaranteed Creditor to or for the credit or the
account of the Guarantor, against and on account of the obligations and
liabilities of the Guarantor to such Guaranteed Creditor under this Guarantee,
irrespective of whether or not such Guaranteed Creditor shall have made any
demand hereunder.
14. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be given in accordance with Section 10.03 of the 1995 Credit
Agreement. For the purposes hereof, and thereof, the address of the Guarantor is
set opposite its signature below and the addresses of the Lenders and the
Collateral Agent shall be the addresses in effect from time to time under the
1995 Credit Agreement.
<PAGE>
15. Any payment of a Guaranteed Obligation required to be made
pursuant to this Guarantee shall be made in the currency in which such
Guaranteed Obligation is required to be made pursuant to the 1995 Credit
Agreement or such other Credit Document giving rise to such Guaranteed
Obligation.
16. If claim is ever made upon the Collateral Agent or any
Guaranteed Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including any Borrower), then and in such event the Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon it,
notwithstanding any revocation hereof or the cancellation of the 1995 Credit
Agreement, any other Credit Document or other instrument evidencing any
liability of a Borrower or any other Guaranteed Obligation, and the Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any payee.
17. Any acknowledgement or new promise, whether by payment of
any Guaranteed Obligation or otherwise and whether by a Borrower or others
(including the Guarantor), with respect to any of the Guaranteed Obligations
shall to the extent permitted by applicable law, if the statute of limitations
in favor of the Guarantor against the Collateral Agent or any Guaranteed
Creditor shall have commenced to run, toll the running of such statute of
limitations, and if the period of such statute of limitations shall have
expired, prevent the operation of such statute of limitations.
18. The Guarantor hereby waives any claim, right or remedy
which the Guarantor may now have or hereafter acquire against the Borrowers that
arises hereunder, including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy of the Guarantor against the
Borrowers whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise. If any amount shall
erroneously be paid to the Guarantor on account of such subrogation,
contribution, reimbursement, indemnity and similar rights, such amount shall be
held in trust for the benefit of the Guaranteed Creditors and shall forthwith be
paid to the Collateral Agent to be credited and applied to the payment of the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the 1995 Credit Agreement and other Credit Documents.
19. Any term or provision of this Guarantee to the contrary
notwithstanding, the maximum, aggregate amount of the Guaranteed Obligations
guaranteed hereunder by the Guarantor shall not exceed the maximum amount that
can be hereby guaranteed by the Guarantor without rendering this Guarantee, as
it relates to the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
20. THIS GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO NEW YORK'S CONFLICTS
OF LAWS PROVISIONS (OTHER THAN NEW YORK STATE GENERAL OBLIGATIONS LAW S-5-1401)
EXCEPT AS REQUIRED BY THE MANDATORY PROVISIONS OF LAW.
<PAGE>
21. Any judicial proceedings brought against the Guarantor
with respect to this Guarantee may be brought in any state or federal court of
competent jurisdiction in the State of New York and, by execution and delivery
of this Guarantee, the Guarantor hereby accepts for itself and in respect of its
properties, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and hereby waives, to the extent permitted by applicable law,
any right it may have to object to the bringing of any such action or proceeding
in the aforesaid courts based on the grounds of forum non conveniens, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Guarantee. The Guarantor designates and appoints American Standard,
Inc., 13-15 West 54th Street, New York, New York 10019, Attention: Legal
Department, and such other persons as may hereafter be selected by it
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by the Guarantor to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to the Guarantor at the address set forth on the signature
page of this Guarantee, except that unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of
process. If any agent appointed by the Guarantor refuses to accept service, the
Guarantor hereby agrees that service upon it by mail shall constitute sufficient
notice. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of any Guaranteed Creditor to
bring proceedings against the Guarantor in the courts of any other jurisdiction.
22. Each party hereto hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of, under or in connection
with this Guarantee, the 1995 Credit Agreement or any of the other Credit
Documents. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Guarantee, the 1995 Credit Agreement and the other
Credit Documents, as applicable, by, among other things, the mutual waivers and
certifications in this Section.
23. This Guarantee shall remain in full force and effect and
may not be terminated or otherwise revoked by the Guarantor, but shall be
terminated without further act subject to paragraph 16 above (i) when the
Guarantor is released from its obligations hereunder in accordance with Section
6.02 of the 1995 Credit Agreement or (ii) if earlier, but only for so long as
there are no Guaranteed Obligations outstanding, when all the Guaranteed
Obligations have been paid in full in cash in the applicable currency and the
Lenders have no further commitment to make Loans or to issue Letters of Credit
and there are no Letters of Credit issued, unexpired and not fully drawn and/or
not fully reimbursed, under the 1995 Credit Agreement; and upon termination the
Collateral Agent shall execute and deliver to the Guarantor such releases in
respect of the Guarantor's obligations hereunder as the Guarantor may reasonably
request.
24. (a) The Guarantor's obligations under this Guarantee to
make payments in Dollars or in any other currency (the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Collateral Agent or the relevant Guaranteed Creditor of
the full amount of the Obligation Currency expressed to be payable to them under
this Guarantee. If for the purpose of obtaining or enforcing judgment against
the Guarantor in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Alternate
Currency Equivalent or Dollar Equivalent, in the case of Foreign Currency or
Dollars, and, in the case of other currencies, the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a rate
<PAGE>
of exchange on such currency, by a known dealer in such currency designated by
the Administrative Agent) determined, in each case, as on the day immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Guarantor covenants and agrees to pay such additional amounts, if any
(but in any event not a lesser amount), as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.
(c) For purposes of determining the Alternate Currency Equivalent or Dollar
Equivalent or rate of exchange for this Section, such amounts shall include any
premium and costs payable in connection with the purchase of the Obligation
Currency.
25. If (i) there is an event with respect to the Guarantor that would
require or permit the acceleration under Section 7.05 of the 1995 Credit
Agreement of any outstanding Loan if the Guarantor were a Borrower under the
1995 Credit Agreement, or (ii) the Guarantor's obligations, if any, under the
1995 Credit Agreement are accelerated, all of the Guaranteed Obligations shall
be immediately due and payable by the Guarantor.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed
and delivered as of the date first above written.
[Name]
by
Name:
Title:
Notice Address:
[ ]
CREDIT DOCUMENTS AMENDMENT AGREEMENT dated
as of February 9, 1995, among AMERICAN STANDARD
COMPANIES INC., formerly known as ASI Holding
Corporation, a Delaware corporation ("Holding");
AMERICAN STANDARD INC., a Delaware corporation
("ASI"); the Domestic Subsidiaries of ASI and the
Foreign Subsidiaries of ASI listed in Schedule I, the
"ASI Subsidiaries" and, together with Holding and
ASI, the "ASI Parties") and CHEMICAL BANK, as
Administrative Agent and as Collateral Agent for the
Lenders party to the Credit Agreement referred to
below. (in such capacity, the "Collateral Agent").
Preliminary Statement
A. Holding, ASI and certain ASI
Subsidiaries are parties to a Credit Agreement dated
as of June 1, 1993 (as amended and in effect
immediately prior to the effectiveness of the
transactions contemplated by the Assignment and
Amendment Agreement referred to below, the "1993 ASI
Credit Agreement"), with the lenders party thereto
(the "Original Lenders"). Such ASI Parties desire to
amend and restate the 1993 ASI Credit Agreement and
to restructure all outstanding loans and commitments
thereunder (including by providing for the repayment
of certain of such loans).
B. Certain of the Original Lenders
and certain other lenders (collectively, the
"Continuing Lenders") are willing (a) to amend and
restate the 1993 ASI Credit Agreement in the form of
the Amended and Restated Credit Agreement being
executed and delivered on the date hereof (the
"Amended and Restated Credit Agreement"; capitalized
terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the
Amended and Restated Credit Agreement), among such
ASI Parties and the Continuing Lenders, and (b) to
restructure the outstanding loans and commitments
under the 1993 ASI Credit Agreement, such amendment,
restatement and restructuring to be effected on the
terms and conditions set forth in the Assignment and
Amendment Agreement dated as of the date hereof (the
"Assignment and Amendment Agreement") among such ASI
Parties, the Original Lenders and the Continuing
Lenders.
C. The parties desire that certain
of the guarantees of, and security interests
securing, obligations under the 1993 ASI Credit
Agreement and the other "Credit Documents" as defined
therein (collectively, the "Credit Documents") be
amended to the extent provided herein and, in such
original or amended form (as applicable), continue to
<PAGE>
guarantee and to secure obligations under the Amended
and Restated Credit Agreement and the Credit
Documents.
Accordingly, the parties hereto
hereby agree as follows:
I. AMENDMENT
SECTION 1.01. Amendment and
Restatement. Except as provided in Section 1.03, on
the Effective Date (as defined in the Assignment and
Amendment Agreement) and upon the consummation of the
assignments referred to therein, (1) any reference in
any Credit Document to (a) the term "Credit
Agreement" or "1993 Credit Agreement" or any term in
English or a language other than English including
either of the foregoing or having a meaning
comparable thereto shall be amended to refer to the
Amended and Restated Credit Agreement (as such
agreement may be amended, modified or supplemented
and in effect from time to time), (b) the term
"Credit Document" or any term in English or a
language other than English including the foregoing
or having a meaning comparable thereto shall be
amended to refer to the Credit Document as amended
(if applicable) hereby (as such agreement may be
amended, modified or supplemented and in effect from
time to time) and (c) an agreement which is a Credit
Document shall be amended to refer to such agreement
as amended, modified or supplemented and in effect
from time to time, and (2) the definition of any term
defined in any Credit Document by reference to the
terms defined in the 1993 ASI Credit Agreement shall
be amended to be defined by reference to the defined
term in the Amended and Restated Credit Agreement, as
the same may be amended, modified or supplemented and
in effect from time to time. Notwithstanding any
provision of this Agreement, the provisions of the
existing Credit Documents (as in effect immediately
prior to the date hereof), including all defined
terms used therein, will continue to be effective as
to all matters arising out of or in any way related
to facts or events existing or occurring prior to the
Effective Date. Except as expressly amended hereby
(if applicable), the Credit Documents shall continue
in full force and effect for the benefit of the
Continuing Lenders.
SECTION 1.02 Confirmation. Subject
to Section 1.03, Holding, ASI and each ASI Subsidiary
executing this Agreement confirm their respective
guarantees, pledges and grants of security interests,
as applicable, and agree that such guarantees,
pledges and grants of security interests shall accrue
to the benefit of the Continuing Lenders under the
Amended and Restated Credit Agreement.
<PAGE>
SECTION-1.03 Exception. The
provisions of this Agreement shall not apply to the
Credit Documents listed in Schedule II (the "Excepted
Credit Documents") and any amendment of or reference
to the amendment of Credit Documents herein shall not
include or effect any amendment to, or confirmation
of, or affect any representation in respect of, any
of the Excepted Credit Documents, which shall remain
in full force and effect without amendment or
confirmation.
II. REPRESENTATIONS AND WARRANTIES
Holding, ASI and each of the ASI
Subsidiaries represents and warrants to the
Collateral Agent that it has the corporate power and
authority to execute, deliver and perform its
obligations under this Agreement and that this
Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with
its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the
enforceability of creditors' rights generally and by
general principles of equity or, in the case of the
Foreign Subsidiaries, applicable laws disclosed in
legal opinions delivered pursuant to the 1993 ASI
Credit Agreement or the Amended and Restated Credit
Agreement, as applicable. Holding and ASI represent
and warrant to the Collateral Agent that Schedules I
and III comprise a true and complete list of the
Domestic Subsidiaries and the Foreign Subsidiaries
which are (or are under the 1993 ASI Credit Agreement
or the Amended and Restated Credit Agreement required
to be), as of the date of this Agreement, parties to
any Domestic or Foreign Guarantee, any Domestic
Securities Pledge Agreement or any Domestic or
Foreign Security Agreement.
III. MISCELLANEOUS
SECTION 3.01. Successors and Assigns
This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their
respective successors and assigns.
SECTION 3.02. APPLICABLE LAW. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO NEW YORK'S CONFLICTS OF LAWS
PROVISIONS (OTHER THAN NEW YORK STATE GENERAL
OBLIGATIONS LAW S 5-1401) EXCEPT AS REQUIRED
<PAGE>
BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS CREATED UNDER ANY CREDIT DOCUMENT
OR REMEDIES THEREUNDER IN RESPECT OF ANY PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK. NOTWITHSTANDING THE
FOREGOING, TO THE EXTENT THIS AGREEMENT AMENDS OR
OTHERWISE AFFECTS ANY DOCUMENT OR AGREEMENT GOVERNED
BY THE LAWS OF ANOTHER JURISDICTION, THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF SUCH JURISDICTION.
SECTION 3.03. Amendment. This Agreement may be
waived, modified or amended only by a written
agreement executed by each of the parties hereto.
SECTION 3.04. Counterparts. This
Agreement may be executed in any number of
counterparts and by the different parties hereto on
separate counterparts, each of which when so executed
and delivered shall be an original, but all of which
shall together constitute one and the same agreement.
Delivery of an executed counterpart of a signature
page of this Agreement by facsimile transmission
shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 3.05. No Novation. Neither
this Agreement nor the execution, delivery or
effectiveness of the Amended and Restated Credit
Agreement or the Assignment and Amendment Agreement
shall extinguish the obligations for the payment of
money outstanding under the 1993 ASI Credit Agreement
or the Amended and Restated Credit Agreement or
discharge or release the Lien or priority of any
pledge agreement or any other security therefor.
Nothing herein contained shall be construed as a
substitution or novation of the obligations
outstanding under the 1993 ASI Credit Agreement or
the Amended and Restated Credit Agreement or
instruments securing the same, which shall remain in
full force and effect, except to any extent modified
hereby or by instruments executed concurrently
herewith. Nothing implied in this Agreement, the
Amended and Restated Credit Agreement, the Assignment
and Amendment Agreement or any other document
contemplated hereby or thereby shall be construed as
a release or other discharge of any Borrower or any
Guarantor or any Pledgor under any Credit Document
from any of its obligations and liabilities as a
"Borrower", "Guarantor" or "Pledgor" under the 1993
ASI Credit Agreement or the Credit Documents. Each of
the 1993 ASI Credit Agreement and the Credit
Documents shall remain in full force and effect,
until (as applicable) and except to any
<PAGE>
extent modified hereby or by the Assignment and
Amendment Agreement or in connection herewith or
therewith.
SECTION 3.06. Effectiveness. This Agreement
shall become effective as to each signatory and the
Credit Documents to which it is a party upon receipt
by the Collateral Agent of such signatory's executed
signature page.
IN WITNESS WHEREOF, each of the
parties hereto has caused this Agreement to be duly
executed and delivered as of the date first above
written.
AMERICAN STANDARD COMPANIES INC.,
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
AMERICAN STANDARD INC.,
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
AMERICAN STANDARD CREDIT INC.,
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
A-S ENERGY INC.,
by
/s/ Mary Jane Mahoney
Name: Mary Jane Mahoney
Title: Vice President
<PAGE>
SAU CORP.,
by
/s/ Israel Stein
Name: Israel Stein
Title: Vice President
WABCO WESTINGHOUSE CIS HOLDING INC.,
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Treasurer
<PAGE>
AMERICAN RADIATOR & STANDARD
SANITARY CORPORATION
AMERICAN STANDARD INTERNATIONAL
INC.
AMERICAN STANDARD TRANE, LTD.
AMSTAN INTERNATIONAL LTD.
AMSTAN CORPORATION
AMSTAN TRUCKING INC.
CARDWELL WESTINGHOUSE COMPANY
DFM CORPORATION
FLUID POWER INC.
FWJ INC.
IDEAL-STANDARD INC.
IT HOLDINGS INC.
MWM CORPORATION
NETHER HOLDINGS INC.
REEFCO INC.
STANDARD SANITARY MANUFACTURING
COMPANY
THE HERMANN SAFE COMPANY
THE TRANE COMPANY (DELAWARE)
THE TRANE COMPANY (NEVADA)
TRANE EXPORT, INC.
TRANE HELLAS, INC.
UNIVERSAL RAILWAY DEVICES
COMPANY
U.S. RAILWAY INC.
WABCO AUTOMOTIVE CONTROL
SYSTEMS INC.
WABCO COMPANY
WABCO STANDARD EXPORT LTD.
WESTINGHOUSE AIR BRAKE
INTERNATIONAL CORPORATION
WORLD STANDARD LTD.,
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and
Treasurer
<PAGE>
A-S THAI HOLDINGS LTD.
(formerly known as TOENSING
CHART SUPPLY, INC.)
A.L. RAND INC.
CAG INC.
COMPROMISE HOLDINGS, CORP.
CURTIS ALCORN CORP.
DOMINO DOPANT INC.
IAS INC.
IVES REP, INC.
LOCUS COERULEUS, CORP.
M.C. CAPSULE INC.
MCDERMOTT SIZING CORP.
MONGRUE & SONS, INC.
PAMMEL CREEK CORP.
S.S. FROSCA & CO.
TWITTY & CO.,
by
/s/ Israel Stein
Name: Israel Stein
Title: Vice President
<PAGE>
AMERICAN STANDARD PHILIPPINE
HOLDINGS INC.
AMERICAN STANDARD (UK) LIMITED
CLAYTON DEWANDRE HOLDINGS
LIMITED
IDEAL STANDARD GMBH
IDEAL STANDARD LIMITED
IDEAL STANDARD S.A. DE C.V.
IDEAL STANDARD S.P.A.
IDEAL STANDARD WABCO
INDUSTRIA E COMMERCIO LTDA.
NETHER HOLDINGS INC.
SOCIETE TRANE
STANDARD EUROPE
THE BRIDGE FOUNDRY CO.
LIMITED
TRANE BETEILIGUNGS-GMBH
TRANE DEUTSCHLAND GMBH
TRANE S.A.
TRANE (UK) LIMITED
WABCO AUTOMOTIVE (UK)
LIMITED
WABCO GMBH
WABCO STANDARD GMBH
WABCO STANDARD TRANE B.V.
WABCO WESTINGHOUSE A.G.
WABCO WESTINGHOUSE B.V.
WABCO WESTINGHOUSE GMBH
WABCO WESTINGHOUSE SPRING
BRAKES B.V.
WESTINGHOUSE AIR BRAKE BRASIL
S.A.
by
/s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Attorney-in-Fact
WABCO STANDARD TRANE INC.
by
/s/ Israel Stein
Name: Thomas S. Battaglia
Authorized Signing Officer
<PAGE>
CHEMICAL BANK, individually
and as Collateral Agent
by
/s/ Robert K. Gaynor
Name: Robert K. Gaynor
Title: Vice President
Exhibit 4(xxv)
================================================================================
AMERICAN STANDARD COMPANIES INC.
and
CITIBANK, N.A.
Rights Agent
____________________________
RIGHTS AGREEMENT
Dated as of January 5, 1995
================================================================================
<PAGE>
TABLE OF CONTENTS
Section Page
------- ----
1. Certain Definitions . . . . . . . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . . . . . . . 13
3. Issue of Right Certificates . . . . . . . . . . . . . . 14
4. Form of Right Certificates . . . . . . . . . . . . . . 17
5. Countersignature and Registration . . . . . . . . . . . 20
6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates . . . . . . . . . . . . . . . . . 21
7. Exercise of Rights; Purchase Price; Expiration Date
of Rights . . . . . . . . . . . . . . . . . . . . . . 23
8. Cancellation and Destruction of Right Certificates . . 28
9. Reservation and Availability of Capital Stock . . . . . 29
10. Preferred Stock Record Date . . . . . . . . . . . . . . 32
11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights . . . . . . . . . . . . . 33
12. Certificate of Adjusted Purchase Price or Number of
Shares . . . . . . . . . . . . . . . . . . . . . . . 56
13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power . . . . . . . . . . . . . . . . . . 57
14. Fractional Rights and Fractional Shares . . . . . . . . 63
15. Rights of Action . . . . . . . . . . . . . . . . . . . 67
16. Agreement of Right Holders . . . . . . . . . . . . . . 68
17. Right Certificate Holder Not Deemed a Stockholder . . . 69
18. Concerning the Rights Agent . . . . . . . . . . . . . . 70
i
<PAGE>
Section Page
------- ----
19. Merger or Consolidation or Change of Name of Rights
Agent . . . . . . . . . . . . . . . . . . . . . . . . 71
20. Duties of Rights Agent . . . . . . . . . . . . . . . . 73
21. Change of Rights Agent . . . . . . . . . . . . . . . . 78
22. Issuance of New Right Certificates . . . . . . . . . . 80
23. Redemption . . . . . . . . . . . . . . . . . . . . . . 82
23A. Exchange . . . . . . . . . . . . . . . . . . . . . . . 84
24. Notice of Certain Events . . . . . . . . . . . . . . . 87
25. Notices . . . . . . . . . . . . . . . . . . . . . . . . 89
26. Supplements and Amendments . . . . . . . . . . . . . . 90
27. Successors . . . . . . . . . . . . . . . . . . . . . . 92
28. Determinations and Actions by the Board of Directors,
etc . . . . . . . . . . . . . . . . . . . . . . . . . 93
29. Benefits of this Agreement . . . . . . . . . . . . . . 94
30. Severability . . . . . . . . . . . . . . . . . . . . . 95
31. Governing Law . . . . . . . . . . . . . . . . . . . . . 96
32. Counterparts . . . . . . . . . . . . . . . . . . . . . 96
33. Descriptive Headings . . . . . . . . . . . . . . . . . 96
Exhibit A - Certificate of Designation, Preferences and Rights
Exhibit B - Form of Right Certificate
Exhibit C - Form of Summary of Rights
ii
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of January 5, 1995 (the
"Agreement"), between American Standard Companies Inc., a Delaware corporation
(the "Company"), and Citibank, N.A. (the "Rights Agent").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company has authorized
and declared a dividend of one Right for each share of Common Stock, par value
$.01 per share, of the Company outstanding at the Close of Business on January
4, 1995 (the "Record Date"), each Right representing the right to purchase one
one-hundredth (1/100th) of a share of Junior Participating Cumulative Preferred
Stock, par value $.01 per share, of the Company having the rights and
preferences set forth in the form of Certificate of Designation attached hereto
as Exhibit A, and has further authorized the issuance of one Right with respect
to each share of Common Stock of the Company that shall become outstanding
between the Record Date and the earliest of the Distribution Date, the
Expiration Date and the Final Expiration Date (as such terms are hereinafter
defined);
<PAGE>
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the Common Stock of the Company
then outstanding, but shall not include (i) any Person or Persons who
are the Beneficial Owners of 15% or more of the Common Stock of the
Company then outstanding by virtue of ownership of Common Stock of the
Company by such Person's Affiliates and/or Associates, which
Affiliates and/or Associates are deemed to be Affiliates and/or
Associates solely by reason of each of them being directors or
officers of the Company, American Standard Inc. ("ASI") or their
Subsidiaries or members of a slate of directors, proposed by
management, standing for election to such Board, (ii) Kelso ASI
Partners, L.P. or any of its Affiliates ("ASI Partners") or any
of their immediate transferees, provided any such transferee
owning 15% or more of the Common Stock of
2
<PAGE>
the Company then outstanding following any such transfer which acquires
any additional shares of Common Stock of the Company except pursuant to
a transfer from ASI Partners or any of its Affiliates shall be an
Acquiring Person, or (iii) any employee benefit plan of the Company,
ASI or any of their Subsidiaries (including, but not limited to, the
American Standard Employee Stock Ownership Plan) or any Person
organized, appointed or established by the Company, ASI or such
Subsidiary as a fiduciary for or pursuant to the terms of any such
employee benefit plan. Notwithstanding the foregoing, (x) no Person
shall become an "Acquiring Person" as a result of an acquisition of
Common Stock by the Company which, by reducing the number of shares of
Common Stock outstanding, increases the proportionate number of shares
Beneficially Owned by such Person to 15% or more of the Common Stock of
the Company then outstanding, provided, however, that if a Person shall
become the Beneficial Owner of 15% or more of the Common Stock of the
Company by reason of share purchases by the Company and, after such
share purchases by the Company, shall become the Beneficial Owner of
any additional Common Stock of the Company other than as a direct or
indirect result of any corporate action
3
<PAGE>
taken by the Company, then such Person shall be deemed to be an
"Acquiring Person", and (y) if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person", as defined pursuant to the foregoing provisions of
this Section 1(a), has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it Beneficially
Owned 15% or more of the Common Stock of the Company or (ii) such
Person was aware of the extent of such Beneficial Ownership but such
Person acquired Beneficial Ownership of such shares of Common Stock
without the intention to change or influence the control of the
Company and without actual knowledge of the consequences of such
Beneficial Ownership under this Rights Agreement), and such Person
divests itself as promptly as practicable of a sufficient number of
shares of Common Stock so that such Person would no longer be an
"Acquiring Person", as defined pursuant to the foregoing provisions of
this Section 1(a), then such Person shall not be deemed to be, or have
been, an "Acquiring Person" for any purposes of this Agreement, and no
Stock Acquisition Time shall be deemed to have occurred. All
questions as to whether a Person who would otherwise be a Acquiring
Person has become such
4
<PAGE>
inadvertently shall be determined in good faith by the Board of
Directors of the Company, which determination shall be conclusive.
(b) "Adjustment Shares" shall have the meaning set forth
in Section 11(a)(ii).
(c) "Affiliate" and "Associate," when used with reference
to any Person, shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
in effect on the Record Date.
(d) "ASI" shall have the meaning set forth in Section
1(a)(i).
(e) "ASI Partners" shall have the meaning set forth in
Section 1(a)(ii).
(f) A Person shall be deemed the "Beneficial Owner" of
and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of, including pursuant to any
agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed
5
<PAGE>
the Beneficial Owner of, or to beneficially own, any security
if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy given to
such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations of the Exchange Act and (2)
is not also then reportable on Schedule 13D under the Exchange
Act (or any comparable or successor report);
(ii) which such Person or any of such Person's
Affiliates or Associates 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 (whether or not in writing), or upon the
exercise of conversion rights, exchange rights, rights (other
than these Rights), warrants or options, or otherwise,
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (A) securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are
6
<PAGE>
accepted for purchase or exchange, or (B) securities issuable
upon exercise of Rights at any time prior to the occurrence of
either a Section 11(a)(ii) Event or a Section 13 Event, or (C)
securities issuable upon exercise of Rights from and after the
occurrence of either a Section 11(a)(ii) Event or a Section 13
Event, which Rights were acquired by such Person or any of
such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22
hereof (the "Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with respect to
any Original Rights; or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (i) of this paragraph (f))
or disposing of any securities of the Company in a manner that
relates or is
7
<PAGE>
reasonably likely potentially to relate to influencing the
control or management of the Company;
provided, however, that nothing in this paragraph (f) shall cause a
person engaged in business as an underwriter of securities to be the
Beneficial Owner of, or to beneficially own, any securities acquired
through such person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such
acquisition.
(g) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(h) "Certificate of Designation" shall mean the
Certificate of Designation of Junior Participating Cumulative
Preferred Stock setting forth the powers, preferences, rights,
qualifications, limitations and restrictions of such series of
preferred stock of the Company, a form of which is attached hereto as
Exhibit A.
(i) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if
such date is not a Business Day
8
<PAGE>
it shall mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
(j) "Common Stock" when used with reference to the
Company shall mean the Common Stock, par value $0.01 per share, of the
Company. "Common Stock" when used with reference to any Person other
than the Company which is organized in corporate form shall mean the
capital stock with the greatest voting power, or the equity securities
or other equity interest having power to control or direct the
management, of such Person, or, if such Person is a Subsidiary of
another Person, the capital stock with the greatest voting power of
the Person which ultimately controls such first-mentioned Person.
"Common Stock" when used with reference to any Person which is not
organized in corporate form shall mean units of beneficial interest
which (i) shall represent the right to participate generally in the
profits and losses of such Person (including, without limitation, any
flow-through tax benefits resulting from an ownership interest in such
Person) and which (ii) shall be entitled to exercise the greatest
voting power of such Person or, in the case of a limited partnership,
shall have the power to remove the general partner or partners.
9
<PAGE>
(k) "Common Stock Equivalents" shall have the meaning set
forth in Section 11(a)(iii).
(l) "Company" shall have the meaning set forth in the
first paragraph of this Agreement.
(m) "Continuing Director" shall mean any member of the
Board of Directors of the Company (while such person is a member of
such Board of Directors) who is not an Acquiring Person, an Affiliate
or Associate of an Acquiring Person, or a representative or nominee of
an Acquiring Person or of any such Affiliate or Associate, and who
either (i) was a member of such Board of Directors prior to the Stock
Acquisition Time or (ii) subsequently became a member of such Board of
Directors, and whose nomination for election or election thereto was
recommended or approved by a majority of the Continuing Directors then
on such Board of Directors.
(n) "Current Market Price" shall have the meaning set
forth in Section 11(d).
(o) "Current Value" shall have the meaning set forth in
Section 11(a)(iii).
(p) "Distribution Date" shall have the meaning specified
in Section 3(a).
10
<PAGE>
(q) "Equivalent Preference Stock" shall have the meaning
set forth in Section 11(b).
(r) "Expiration Date" shall have the meaning specified in
Section 7(a).
(s) "Final Expiration Date" shall have the meaning
specified in Section 7(a).
(t) "NYSE" shall have the meaning set forth in Section
11(d).
(u) "Outside Directors" shall have the meaning set forth
in Section 11(a)(ii).
(v) "Person" shall mean any individual, firm,
corporation, partnership, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(w) "Preferred Stock" shall mean shares of Junior
Participating Cumulative Preferred Stock, par value $.01 per share, of
the Company, having the rights, preferences and limitations set forth
in the form of Certificate of Designation attached to this Agreement
as Exhibit A, and, to the extent there are not a sufficient number of
shares of Junior Participating Cumulative Preferred Stock authorized
to permit the full exercise of the then outstanding Rights, any other
series of preferred stock of the Company designated for
11
<PAGE>
such purpose by the Board of Directors of the Company containing terms
substantially similar to the terms of the Junior Participating
Cumulative Preferred Stock.
(x) "Principal Party" shall have the meaning set forth in
Section 13(b).
(y) "Purchase Price" shall have the meaning set forth in
Section 4(a).
(z) "Record Date" shall have the meaning set forth in the
WHEREAS clause at the beginning of this Agreement.
(aa) "Redemption Price" shall have the meaning set forth
in Section 23(a).
(ab) "Right" shall have the meaning set forth in the
WHEREAS clause at the beginning of this Agreement.
(ac) "Right Certificate" shall have the meaning set forth in
Section 3(a).
(aa) "Rights Agent" shall have the meaning set forth in the
first paragraph of this Agreement.
(bb) "Section 11(a)(ii) Event" shall have the meaning set
forth in Section 11(a)(ii).
(cc) "Section 11(a)(ii) Trigger Date" shall have the meaning
set forth in Section 11(a)(iii).
(dd) "Section 13 Event" shall have the meaning set forth in
Section 13(a).
12
<PAGE>
(ee) "Spread" shall have the meaning set forth in Section
11(a)(iii).
(ff) "Stock Acquisition Time" shall mean the time of
occurrence of the first public announcement by the Company that an
Acquiring Person has become such.
(gg) "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient, in the absence of
contingencies, to elect a majority of the board of directors or other
persons performing similar functions are at the time beneficially
owned, directly or indirectly, by such Person or otherwise controlled
by such Person.
(hh) "Substitution Period" shall have the meaning set forth
in Section 11(a)(iii).
(ii) "Summary of Rights" shall have the meaning set forth in
Section 3(b).
(jj) "Trading Day" shall have the meaning set forth in
Section 11(d).
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such
13
<PAGE>
Co-Rights Agents as it may deem necessary or desirable. Any actions which may
be taken by the Rights Agent pursuant to the terms of this Agreement may be
taken by any such Co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the
earlier of the Close of Business on (i) the tenth Business Day after the Stock
Acquisition Time, or (ii) the tenth Business Day, or such specified or
unspecified later date as may be determined by action of the Board of Directors
of the Company, after the date of the commencement of (as determined by
reference to Rule 14d-2(a), as now in effect under the Exchange Act), or first
public announcement of the intent of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person organized, appointed or established by
the Company or such Subsidiary as a fiduciary pursuant to the terms of any such
employee benefit plan) to commence (which intention to commence remains in
effect for five Business Days after such announcement), a tender or exchange
offer for an amount of Common Stock of the Company which, together with the
shares of such stock already owned by such Person, constitutes 15% or more of
the outstanding Common Stock of the Company (including any such date which is
after the date of this Agree-
14
<PAGE>
ment and prior to the issuance of the Rights) (the earlier of such dates
described in clauses (i) and (ii) above being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for shares
of Common Stock registered in the names of the holders of Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate Right Certificates, and (y) the right to receive
Right Certificates will be transferable only in connection with the transfer of
the underlying Common Stock. As soon as practicable after the Distribution
Date, the Rights Agent will send, by first class, insured, postage-prepaid
mail, to each record holder of Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right for each share of Common Stock so
held, subject to adjustment as provided herein and to the provisions of Section
14(a). As of the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.
(b) On the Record Date or as soon as practicable
thereafter, the Company will send a copy of a Summary of
15
<PAGE>
Rights to Purchase Preferred Stock, in substantially the form attached hereto
as Exhibit C (the "Summary of Rights"), by first-class, postage-prepaid mail,
to each record holder of Common Stock as of the Close of Business on the Record
Date, at the address of such holder shown on the records of the Company. With
respect to certificates for Common Stock outstanding as of the Record Date,
until the earlier of the Distribution Date or the Expiration Date, the Rights
will be evidenced by such certificates for Common Stock registered in the names
of the holders of Common Stock with a copy of the Summary of Rights attached
thereto. Until the earliest of the Distribution Date, the Expiration Date and
the Final Expiration Date, the surrender for transfer of any of the
certificates for Common Stock outstanding on the Record Date, with or without a
copy of the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate.
(c) Certificates for Common Stock issued (or delivered
from the Company's treasury) after the Record Date but prior to the earliest of
the Distribution Date, the Expiration Date and the Final Expiration Date shall
have impressed on, printed on, written on or otherwise affixed to them the
following legend:
16
<PAGE>
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between American
Standard Companies Inc. (the "Corporation") and Citibank, N.A., dated
as of January 5, 1995 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of the Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge promptly
after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued to an
Acquiring Person or any Associate or Affiliate thereof (as such terms
are defined in the Rights Agreement) may be null and void. The Rights
shall not be exercisable, and shall be void so long as held, by a
holder in any jurisdiction where the requisite qualification for the
issuance to such holder, or the exercise by such holder of the Rights
in such jurisdiction, shall not have been obtained or be obtainable.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Stock represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificates.
Section 4. Form of Right Certificates. (a) The Right
Certificates (and the forms of election to purchase shares, certificate and
assignment to be printed on the reverse thereof) shall be substantially in the
form set
17
<PAGE>
forth in Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any applicable law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Sections 11 and 22 hereof, the
Right Certificates, whenever distributed, which are distributed in respect of
shares of Common Stock which were issued and outstanding as of the Record Date,
shall be dated as of the Record Date, on their face shall entitle the holders
thereof to purchase such number of one one-hundredths of a share of Preferred
Stock as shall be set forth therein at the price per one one-hundredth of a
share of Preferred Stock set forth therein (the "Purchase Price"), but the
number and type of securities purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment as provided in this
Agreement.
(b) Any Right Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an
18
<PAGE>
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding (whether or not in
writing) which has as a primary purpose or effect the avoidance of the
provisions of Section 7(e), Section 11(a)(ii) or of Section 13 with respect to
the limitation of the Rights beneficially owned by an Acquiring Person (or any
Associate or Affiliate thereof), and any Right Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this sentence, shall
contain (to the extent feasible) the following legend modified as necessary to
apply to such Person:
The Rights represented by this Certificate are or were beneficially
owned by a Person who was or
19
<PAGE>
became an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement). Accordingly, this
Certificate and the Rights represented hereby may become null and void
in the circumstances specified in Section 7(e) of the Rights
Agreement.
Section 5. Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company manually or by
facsimile signature by the Chairman of the Board, the President or any Vice
President and have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary, the Acting Secretary or any Assistant
Secretary, either manually or by facsimile signature. The Right Certificates
shall be countersigned by the Rights Agent manually and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who
shall have signed any of the Right Certificates shall cease to be such officer
of the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered by the Company with
the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper offi-
20
<PAGE>
cer of the Company to sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office in New York, New York,
books for registration and transfer of the Right Certificates issued hereunder.
Such books shall show the names and addresses of the respective holders of the
Right Certificates, the number of Rights evidenced on its face by each of the
Right Certificates and the date and certificate number of each of the Right
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 4(b) and 14 hereof, at any time
after the Close of Business on the Distribution Date, and at or prior to the
Close of Business on the earlier of the Expiration Date and the Final
Expiration Date, any Right Certificate or Right Certificates may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a like number
of shares of Preferred Stock (or other securities, cash, and/or assets, as the
case may be) as the Right Certificate or Right Certificates surrendered then
entitled
21
<PAGE>
such holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged, with the
form of assignment and certificate appropriately executed, at the principal
office of the Rights Agent in New York, New York. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever with respect to
the transfer of any such surrendered Right Certificate or Right Certificates
until the registered holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of such Right
Certificate or Right Certificates and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall countersign and deliver to the Person entitled
thereto a Right Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of any Right Certificates.
22
<PAGE>
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and, if requested by
the Company, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will
execute and deliver a new Right Certificate of like tenor to the Rights Agent
for counter-signature and delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) Subject to Section 7(e) hereof, the registered holder of
any Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase and certificate on the reverse side thereof duly executed,
to the Rights Agent at the principal office of the Rights Agent in New York,
New York, together with payment of the Purchase Price for each one
one-hundredth of a share of Preferred Stock as to which
23
<PAGE>
the Rights are exercised, at or prior to the earliest of (i) the Close of
Business on January 5, 2005 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23, (iii) the time at
which the Rights are exchanged as provided in Section 23A, or (iv) the time at
which the Rights expire pursuant to Section 13(d) (such earliest time being
herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a
share of Preferred Stock issued pursuant to the exercise of a Right shall
initially be $100, shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and certificate duly
executed, accompanied by payment (by certified check or bank draft payable to
the order of the Company) of the Purchase Price for the Preferred Stock (or
other shares, securities, cash or other assets, as the case may be) to be
purchased and an amount equal to any applicable transfer tax required to be
paid by the holder of the Rights pursuant hereto in cash, or by certified check
or
24
<PAGE>
bank draft payable to the order of the Company, the Rights Agent shall, subject
to Section 20(k) hereof, thereupon promptly (i)(A) requisition from any
transfer agent of the Preferred Stock (or make available, if the Rights Agent
is the transfer agent) certificates for the number of shares of Preferred Stock
to be purchased (and the Company hereby irrevocably authorizes its transfer
agent to comply with all such requests), or (B) if the Company shall have
elected to deposit the total number of shares of Preferred Stock issuable upon
exercise of the Rights hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be purchased (in which
case certificates for the shares of Preferred Stock represented by such
receipts shall be deposited by the transfer agent with the depositary agent)
and the Company hereby directs the depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional shares in accordance with Section
14, (iii) after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by
such holder, and (iv) when appro-
25
<PAGE>
priate, after receipt, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate. In the event that the Company is
obligated to issue other securities of the Company, pay cash and/or distribute
other property pursuant to Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to the registered
holder of such Right Certificate or to his duly authorized assigns, subject to
the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of any such Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee after
such Acquiring Person becomes such, or (iii) a transferee of any such Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee prior
26
<PAGE>
to or concurrently with such Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration)
from such Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (B)
a transfer which the Board of Directors of the Company has determined is part
of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and void without
any further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) and Section 4(b) hereof are complied
with but shall have no liability to any holder of Right Certificates or any
other Person as a result of its failure to make any determination with respect
to an Acquiring Person or any of its respective Affiliates, Associates or
transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificate upon the occurrence
27
<PAGE>
of any purported transfer or exercise as set forth in this Section 7 unless
such registered holder shall have (i) completed and signed the certificate
following the form of assignment or election to purchase set forth on the
reverse side of the Right Certificate surrendered for such assignment or
exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Right Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled Right
Certificates to the Company, or shall, at the written request of the
28
<PAGE>
Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Preferred Stock or
any authorized and issued shares of Preferred Stock held in its treasury (and
will use its best efforts, following the occurrence of a Section 11(a)(ii)
Event, to cause to be reserved and kept available out of its authorized and
unissued shares of Common Stock and/or other securities or out of its
authorized and issued shares of Common Stock and/or other securities held in
its treasury), the number of shares of Preferred Stock (and, following the
occurrence of a Section 11(a)(ii) Event, Common Stock and/or other securities)
that will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) The Company shall use its best efforts to (i) file,
as soon as practicable following the earliest date after the first occurrence
of a Section 11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, or as soon as is required by
29
<PAGE>
law following the Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933, as amended (the "Act"), with
respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities, and (B) the date of the
expiration of the Rights. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or "blue sky"
laws of the various states in connection with the exercisability of the Rights.
The Company may, acting by resolution of its Board of Directors, temporarily
suspend, for a period of time not to exceed ninety (90) days after the date set
forth in clause (i) of the first sentence of this Section 9(b), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in
30
<PAGE>
effect. Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
(c) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all one one-hundredths of a
share of Preferred Stock (and, following the occurrence of a Section 11(a)(ii)
Event, Common Stock and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares.
(d) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the
Right Certificates or of any shares of Preferred Stock (or shares of Common
Stock and/or other securities, as the case may be) upon the exercise of Rights.
The Company shall not, however, be required to pay any transfer tax which may
be payable in respect of any transfer or delivery of Right Certificates to a
person other than, or the issuance or delivery of certificates or depositary
receipts for a number of
31
<PAGE>
one one-hundredths of a share of Preferred Stock (or shares of Common Stock
and/or other securities, as the case may be), in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or deliver any certificates for shares of Preferred Stock
(or Common Stock and/or other securities, as the case may be) or depositary
receipts for Preferred Stock upon the exercise of any Rights until any such tax
shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in
whose name any certificate for a number of one one-hundredths of a share of
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) is issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of shares of Preferred Stock (or shares of
Common Stock and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; provided, however,
that if the
32
<PAGE>
date of such surrender and payment is a date upon which the Preferred Stock (or
shares of Common Stock and/or other securities, as the case may be) transfer
books of the Company are closed, such person shall be deemed to have become the
record holder of such shares (fractional and otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock (or shares of Common Stock and/or other securities, as the case
may be) transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate, as such, shall not
be entitled to any rights of a stockholder of the Company with respect to
shares for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions or
to exercise any preemptive rights, and shall not be entitled to receive any
notice of any meetings or other proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and kind of shares,
or fractions thereof, covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
33
<PAGE>
(a)(i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Stock payable in
shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock into a
greater number of shares, (C) combine or consolidate the outstanding Preferred
Stock into a smaller number of shares, or (D) issue any shares of its capital
stock in a reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in Section 7(e) and this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number and kind of
shares of Preferred Stock or capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case may be, which, if such Right had
been exercised immediately prior to such date and at a time when the Preferred
Stock transfer books of the Company were open, he would have owned upon such
exercise and been entitled to
34
<PAGE>
receive by virtue of such dividend, subdivision, combination or
reclassification.
If an event occurs which would require an adjustment under
both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).
(ii) In the event (a "Section 11(a)(ii) Event") that any
Person, alone or together with its Affiliates and Associates, shall become an
Acquiring Person, unless the event causing such Person to become an Acquiring
Person is a Section 13 Event or is an acquisition of Common Stock of the
Company pursuant to a tender or exchange offer for all outstanding Common Stock
of the Company at a price and on terms determined by at least a majority of the
members of the Board of Directors of the Company who are not Acquiring Persons
or representatives, nominees, Affiliates or Associates of an Acquiring Person
(the "Outside Directors"), after receiving advice from one or more investment
banking firms, to be (A) at a price which is fair to stockholders (taking into
account all factors which such Outside Directors deem relevant, including,
without limitation, prices which could reasonably be achieved if the Company or
its assets were to be sold on an orderly basis designed to realize maximum
35
<PAGE>
value) and (B) otherwise in the best interests of the Company and its
stockholders, then proper provision shall be made so that each holder of a
Right (except as provided below and in Section 7(e) hereof), shall thereafter
have the right to receive, upon exercise thereof following the Distribution
Date at the then current Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one-hundredths of a share of Preferred Stock,
such number of shares of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the then number
of one one-hundredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of such Section 11(a)(ii)
Event, whether or not such Right was then exercisable, and (y) dividing that
product (which, following such first occurrence, shall thereafter be referred
to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price per share of the Common Stock of
the Company (determined pursuant to Section 11(d)) on the date of the
occurrence of such Section 11(a)(ii) Event (such number of shares being
hereinafter referred to as the "Adjustment Shares"). The Company shall notify
the Rights Agent as to any Persons who are deemed by the Company to be
Acquiring Persons or Associates,
36
<PAGE>
Affiliates or transferees (as described in subparagraphs (ii) and (iii) of
Section 7(e)) of such Persons and shall identify any Rights pertaining thereto.
(iii) In lieu of issuing shares of Common Stock of the
Company in accordance with Section 11(a)(ii) hereof, the Company, acting by
resolution of its Board of Directors, may (and, in the event that the number of
shares of Common Stock which are authorized by the Company's Certificate of
Incorporation but not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with Section 11(a)(ii), the Company, acting by
resolution of its Board of Directors, shall): (A) determine the excess of (1)
the value of the Adjustment Shares issuable upon the exercise of a Right (the
"Current Value"), over (2) the Purchase Price attributable to each Right (such
excess, the "Spread") and (B) with respect to each Right (subject to Section
7(e)), make adequate provision to substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other equity securities of the Company
(including, without limitation, shares, or units of shares, of preferred stock
which the Board of Directors of the Company has deemed to have the same value
as
37
<PAGE>
shares of Common Stock of the Company (such shares or units of preferred stock
hereinafter called "Common Stock Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the foregoing having an
aggregate value equal to the Current Value, where such aggregate value has been
determined by action of the Board of Directors of the Company based upon the
advice of a nationally recognized investment banking firm selected by the Board
of Directors of the Company which has theretofore performed no services for the
Company or any Subsidiary of the Company in the past five years; provided,
however, if the Company shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days following the later of (x)
the first occurrence of a Section 11(a)(ii) Event and (y) the first date that
the right to redeem the Rights pursuant to Section 23 hereof, as such date may
be amended pursuant to Section 26 hereof, shall expire (the later of (x) and
(y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the
Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of Common
Stock of the Company (to the extent available) and then, if necessary, cash,
securities and/or assets, that in the aggregate have a value equal
38
<PAGE>
to the Spread. If, after the occurrence of a Section 11(a)(ii) Event, the
number of shares of Common Stock that are authorized by the Company's
Certificate of Incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not sufficient to permit
exercise in full of the Rights in accordance with Section 11(a)(ii) hereof and
the Company, acting by resolution of its Board of Directors, shall determine in
good faith that it is likely that sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of the Rights, the
thirty (30) day period set forth above may be extended to the extent necessary,
but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in
order that the Company may seek stockholder approval for the authorization of
such additional shares (such period as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some action is to be
taken pursuant to the terms of this Section 11(a)(iii), the Company (x) shall
provide, subject to Section 7(e), that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights until
the expiration of the Substitution Period in order to seek such stockholder
approval for the authorization of additional shares
39
<PAGE>
and/or to decide the appropriate form of distribution to be made pursuant to
the first sentence of this Section 11(a)(iii) and to determine the value
thereof. In the event of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is
no longer in effect. For purposes of this Section 11(a)(iii), the value of the
Common Stock shall be the Current Market Price per share of Common Stock (as
determined pursuant to Section 11(d)) on the date of the first occurrence of
the Section 11(a)(ii) Event, and the per share or per unit value of any Common
Stock Equivalents shall be deemed to equal the Current Market Price per share
of the Common Stock of the Company on such date.
(b) In the event that the Company shall fix a record date
for the issuance of rights, options or warrants to all holders of shares of
Preferred Stock entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Preferred Stock (or shares
having the same rights, privileges and preferences as the shares of Preferred
Stock ("Equivalent Preference Stock")) or securities convertible into shares of
Preferred Stock or Equivalent Preference Stock at a price per
40
<PAGE>
share of Preferred Stock or Equivalent Preference Stock (or having a conversion
price per share, if a security convertible into shares of Preferred Stock or
Equivalent Preference Stock) less than the Current Market Price per share of
the Preferred Stock (as defined in Section 11(d)) on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date plus the number of additional
shares of Preferred Stock and/or Equivalent Preference Stock which the
aggregate offering price of the total number of such shares so to be offered
(and/or the aggregate initial conversion price of the convertible securities so
to be offered) would purchase at such Current Market Price, and the denominator
of which shall be the number of shares of Preferred Stock outstanding on such
record date plus the number of additional shares of Preferred Stock and/or
Equivalent Preference Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible).
In case such subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such consideration shall
be as de-
41
<PAGE>
termined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Preferred Stock owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular periodic cash dividend at a rate
not in excess of 125% of the rate of the last regular periodic cash dividend
theretofore paid or a dividend payable in Preferred Stock) or subscription
rights or warrants (excluding those referred to in Section 11(b)), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price per
42
<PAGE>
share of Preferred Stock (as defined in Section 11(d)) on such record date,
less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to one share of Preferred Stock, and the denominator of which shall
be such Current Market Price per share of Preferred Stock. Such adjustments
shall be made successively whenever such a record date is fixed, and in the
event that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(d)(i) For the purpose of any computation hereunder, the
"Current Market Price" per share of Common Stock on any date shall be deemed to
be the average of the daily closing prices per share of such Common Stock for
the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in the event that the
Current Market Price per share of Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of (a) a dividend
or distribution on such Common Stock payable in
43
<PAGE>
shares of such Common Stock or securities convertible into such Common Stock or
(b) any subdivision, combination or reclassification of such Common Stock, and
prior to the expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, as the case may be, then, and in each such case, the
"Current Market Price" shall be appropriately adjusted to take into account the
ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the shares of Common Stock are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter
44
<PAGE>
market, as reported by the New York Stock Exchange ("NYSE") or such other
system then in use, or, if on any such date the shares of Common Stock are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in shares of
Common Stock selected by the Company, acting by resolution of the Board of
Directors of the Company. If on any such date no market maker is making a
market in shares of Common Stock, the fair value of such shares on such date as
determined in good faith by the Company, acting by resolution of the Board of
Directors of the Company, shall be used. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange but are quoted on NYSE, a day on
which NYSE is in operation or if the shares of Common Stock are neither listed
or admitted to trading on any national securities exchange nor quoted on NYSE,
a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions
in the State of New York are not authorized or obligated by law or executive
order to close. If the current per share market price of the Common Stock
cannot be determined in the
45
<PAGE>
manner provided above, or if the Common Stock is not publicly held or not so
listed or traded, "Current Market Price" per share of Common Stock shall mean
the fair value per share as determined in good faith by the Company, acting by
resolution of the Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent and shall be conclusive
for all purposes.
(ii) For the purpose of any computation hereunder, the
"Current Market Price" per share of Preferred Stock shall be determined in the
same manner as set forth for the Common Stock in Section 11(d)(i) hereof (other
than the last sentence thereof). If the Current Market Price per share of
Preferred Stock cannot be determined in the manner provided above or if the
Preferred Stock is not publicly held or listed or traded in a manner described
in Section 11(d)(i) hereof, the "Current Market Price" per share of Preferred
Stock shall be conclusively deemed to be an amount equal to 100 (as such number
may be appropriately adjusted for such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock occurring after the date
of this Agreement) multiplied by the Current Market Price per share of the
Common Stock. If neither the Common Stock nor the Preferred Stock is publicly
held or so listed or traded, the "Current Market Price" per share of Preferred
46
<PAGE>
Stock shall mean the fair value per share as determined in good faith by the
Company, acting by resolution of its Board of Directors, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. For all purposes of this Agreement, the "Current
Market Price" of one one-hundredth of a share of Preferred Stock shall be equal
to the "Current Market Price" of one share of Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a share of Common Stock or
other share or the nearest one-millionth of a share of Preferred Stock, as the
case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which re-
47
<PAGE>
quires such adjustment or (ii) the date of the expiration of the right to
exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) or Section 13(a), the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock of the Company
other than Preferred Stock, thereafter the Purchase Price and the number of
such other shares so receivable upon exercise of any Right and the number of
Rights outstanding shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Preferred Stock contained in Sections 11(a), (b), (c), (e), (g), (h),
(i), (j), (k) and (m) and the provisions of Sections 7, 9, 10, 13 and 14 with
respect to the Preferred Stock shall apply on like terms to any such other
shares, provided, however, that the Company shall not be liable for its
inability or failure to reserve and keep available for issuance upon exercise
of the Rights pursuant to Section 11(a)(ii) a number of shares of Common Stock
greater than the number then authorized by the Certificate of Incorporation of
the Company but not outstanding or reserved for any other purpose.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
48
<PAGE>
hereunder shall evidence the right to purchase, at the adjusted Purchase Price,
the number of one one-hundredths of a share of Preferred Stock purchasable from
time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock (calculated to the nearest
one-millionth of a share of Preferred Stock) obtained by (i) multiplying (A)
the number of one one-hundredths of a share covered by a Right immediately
prior to such adjustment of the Purchase Price by (B) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect immediately
after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of one one-hundredths of a share
of Preferred Stock purchasable
49
<PAGE>
upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one
one-hundredths of a share of Preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This record date may be
the date on which the Purchase Price is adjusted or any day thereafter, but, if
the Right Certificates have been issued, shall be at least 10 days later than
the date of the public announcement. If Right Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this Section 11(i),
the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as
50
<PAGE>
a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of adjustment,
and upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the
option of the Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Preferred Stock, or fraction thereof,
issuable upon the exercise of the Rights, the Right Certificates theretofore
and thereafter issued may continue to express the Purchase Price per one
one-hundredth of a share and the number of shares which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value, if any, of the
one one-hundredths of a share of Pre-
51
<PAGE>
ferred Stock issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such record
date the Preferred Stock, or a fraction thereof, and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company, acting by resolution of its Board of Directors,
shall be entitled to make such reduc-
52
<PAGE>
tions in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that it in its sole
discretion shall determine to be advisable in order that any consolidation or
subdivision of the Preferred Stock, any issuance wholly for cash of any
Preferred Stock at less than the current market price, any issuance wholly for
cash of Preferred Stock or securities which by their terms are convertible into
or exchangeable for Preferred Stock, any stock dividends or any issuance of
rights, options or warrants referred to herein above in this Section 11,
hereafter made by the Company to holders of its Preferred Stock shall not be
taxable to such shareholders.
(n) The Company covenants and agrees that it shall not,
at any time after the Distribution Date, (i) consolidate with any other Person
(other than a Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof), or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction or in a series of related transactions, assets,
cash flow or earning power aggregating more than 50% of the assets, cash flow
or earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person or
53
<PAGE>
Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or agreements
in effect that would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the stockholders of the
Person who constitutes, or would constitute, the "Principal Party" for purposes
of Section 13(a) shall have received a distribution of Rights previously owned
by such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23, Section 23A
or Section 26 hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that such action
will diminish substantially or eliminate the benefits intended to be afforded
by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event the Company shall at any time after the date of
this Agreement and prior to the Distribu-
54
<PAGE>
tion Date (i) declare or pay any dividend on the Common Stock of the Company
payable in such Common Stock or (ii) subdivide the outstanding Common Stock of
the Company into a greater number of shares (by reclassification or otherwise
than by payment of dividends in such Common Stock) or (iii) combine or
consolidate the outstanding Common Stock of the Company into a smaller number
of shares, then in any such case, (x) the number of one one-hundredths of a
share of Preferred Stock purchasable after such event upon proper exercise of
each Right shall be determined by multiplying the number of one one-hundredths
of a share of Preferred Stock so purchasable immediately prior to such event by
a fraction, the numerator of which is the number of shares of Common Stock of
the Company outstanding immediately before such event and the denominator of
which is the number of shares of such Common Stock outstanding immediately
after such event and (y) action shall be taken such that each share of Common
Stock of the Company outstanding immediately after such event shall have issued
with respect to it that number of Rights which each share of such Common Stock
outstanding immediately prior to such event had issued with respect to it. The
adjustments provided for in this Section 11(p) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
55
<PAGE>
or consolidation is effected. If an event occurs which would require an
adjustment under Section 11(a)(ii) and this Section 11(p), the adjustments
provided for in this Section 11(p) shall be in addition and prior to any
adjustment required pursuant to Section 11(a)(ii).
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Sections 11 and 13,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Common Stock and Preferred Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate (or if prior to the
Distribution Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 25 of this Agreement. Notwithstanding
the foregoing sentence, the failure of the Company to make such certificates or
give such notice shall not affect the validity or the force or effect of the
requirement for such adjustment. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained. Any
adjustment to be made pursuant to Sections 11 and 13
56
<PAGE>
shall be effective as of the date of the event giving rise to such adjustment.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. (a) In the event (a "Section 13 Event") that,
following the Stock Acquisition Time, directly or indirectly, (x) the Company
shall consolidate with, or merge with and into, any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o))
and the Company shall not be the surviving or continuing corporation of such
merger, consolidation or combination, (y) any Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o)) shall
consolidate with the Company, or merge with and into the Company, and the
Company shall be the surviving or continuing corporation of such merger or
consolidation and, in connection therewith, all or part of the Common Stock
shall be changed into or exchanged for stock or other securities of any Person
or cash or any other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer),
in one or more transactions, assets, cash flow or earning power aggregating
more than 50% of the assets, cash flow or earning power of the Company and its
Subsidiaries (taken as a whole and calculated on the basis
57
<PAGE>
of the Company's most recent regularly prepared financial statement) to any
other Person or Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies with Section 11(o)),
then, and in each such case (except as provided in Section 13(d)), proper
provision shall be made so that (i) each holder of a Right (except as otherwise
provided in Section 7(e)) shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, such number of validly authorized and issued, fully
paid, nonassessable and freely tradable shares of Common Stock of the Principal
Party (as hereinafter defined), not subject to any liens, encumbrances, rights
of call, rights of first refusal or other adverse claims, as shall be equal to
the result obtained by (A) multiplying the then current Purchase Price by the
number of one one-hundredths of a share of Preferred Stock for which a Right
was exercisable immediately prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event has occurred prior to the first occurrence of
a Section 13 Event, multiplying the number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event by the Purchase Price in
58
<PAGE>
effect immediately prior to such first occurrence), and dividing that product
(which, following the first occurrence of a Section 13 Event, shall be referred
to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by (B) 50% of the Current Market Price per share of Common Stock of
such Principal Party (determined pursuant to Section 11(d)) on the date of
consummation of such merger, consolidation, sale or transfer; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant
to this Agreement; (iii) the term "Company" shall thereafter be deemed to refer
to such Principal Party, it being specifically intended that the provisions of
Section 11 shall apply only to such Principal Party following the first
occurrence of a Section 13 Event; (iv) such Principal Party shall take such
steps (including, but not limited to, the reservation of a sufficient number of
shares of its Common Stock in accordance with Section 9 hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be possible, in
relation to its Common Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no
effect following the first occurrence
59
<PAGE>
of any Section 13 Event. The Company shall not consummate any such merger,
consolidation, sale or transfer unless prior thereto the Company and such
issuer shall have executed and delivered to the Rights Agent a supplemental
agreement containing the provisions required by this Section 13.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a) hereof, the Person
that is the issuer of any securities into which shares of Common Stock
of the Company are converted in such merger or consolidation, and if
no securities are so issued, the Person that is the other party to
such merger or consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets, cash flow or
earning power transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the Common Stock of such
Person is not at any time and has not been continuously over the preceding
twelve month period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person the
60
<PAGE>
Common Stock of which is and has been so registered, "Principal Party" shall
refer to such other Person; and (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common Stock of two or
more of which are and have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common Stock having the greatest
aggregate market value.
(c) The Company shall not consummate any Section 13 Event
unless the Principal Party shall have a sufficient number of shares of
authorized Common Stock which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement containing the
provisions set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any such Section 13
Event, the Principal Party will:
(i) prepare and file a registration statement under the
Act with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form and will use its best
efforts to cause such registration statement to (A) become effective
as soon as practicable after such filing and (B) remain
61
<PAGE>
effective (with a prospectus at all times meeting the requirements of
the Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all respects with the requirements for registration on Form
10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that a Section 13
Event shall occur at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised shall thereafter
become exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, this Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired Common Stock of the Company
pursuant to a tender offer or exchange offer for all outstanding Common Stock
of the Company which complies with the provisions of Section 11(a)(ii) (or a
wholly owned Subsidiary of any such Person or Persons), (ii) the price per
share of Common Stock of the Company offered in such trans-
62
<PAGE>
action is not less than the price per share of Common Stock of the Company paid
to all holders of Common Stock of the Company whose shares were purchased
pursuant to such tender offer or exchange offer and (iii) the form of
consideration being offered to the remaining holders of Common Stock of the
Company pursuant to such transaction is the same as the form of consideration
paid pursuant to such tender offer or exchange offer. Upon consummation of any
such transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.
(e) The Company covenants and agrees that it will not,
after the Stock Acquisition Time, engage in any Section 13 Event if at the time
of or after such event there are any charter or by-law provisions or any
rights, warrants or other instruments outstanding or any other action taken
which would diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
Section 14. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue fractions of Rights or to distribute
Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractions of Rights would otherwise be
issuable, an amount in cash
63
<PAGE>
equal to the same fraction of the current market value of a whole Right. For
the purposes of this Section 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day immediately prior
to the date on which such fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if
the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which the Rights are listed or admitted to trading or, if the
Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by NYSE or
such other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices as
furnished by a professional
64
<PAGE>
market maker making a market in the Rights (selected by the Company, acting by
resolution of its Board of Directors). If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on such
date as determined in good faith by the Company, acting by resolution of its
Board of Directors, shall be used.
(b) The Company shall not be required to issue fractions
of shares of Preferred Stock (other than fractions which are integral multiples
of one one-hundredths of a share of Preferred Stock) upon exercise of the
Rights or to distribute certificates which evidence fractional shares (other
than fractions which are integral multiples of one one-hundredths of a share of
Preferred Stock). Fractions of Preferred Stock in integral multiples of one
one-hundredths of a share of Preferred Stock may, at the election of the
Company, be evidenced by depositary receipts, pursuant to an appropriate
agreement between the Company and a depositary selected by it, provided that
such agreement shall provide that the holders of depositary receipts shall have
all the rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Stock. In lieu of fractional shares which
are not integral multiples of one one-hundredths of a share of Preferred Stock,
the Company may pay to the registered holders of Right Certificates at
65
<PAGE>
the time such Right Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of one share of
Preferred Stock. For purposes of this Section 14(b), the current market value
of a share of Preferred Stock shall be the closing price of a share of
Preferred Stock (as determined pursuant to the second sentence of Section
11(d)(ii)) for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of a Section 11(a)(ii) Event
or a Section 13 Event, the Company shall not be required to issue fractions of
shares of its Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of its Common Stock. In lieu of
fractional shares of its Common Stock, the Company may pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one share of its Common Stock. For purposes of this Section 14(c),
the current market value of one share of Common Stock of the Company shall be
the closing price of one share of Common Stock of the Company (as determined
pursuant to Section 11(d)(i)) for the Trading Day immediately prior to the date
of such exercise.
66
<PAGE>
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, except the rights of action vested in the Rights
Agent pursuant to Section 18, are vested in the respective registered holders
of the Right Certificates (and, prior to the Distribution Date, the registered
holders of Common Stock); and any registered holder of any Right Certificate
(or, prior to the Distribution Date, of Common Stock), without the consent of
the Rights Agent or of any holder of any other Right Certificate (or, prior to
the Distribution Date, of Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the
67
<PAGE>
obligations hereunder, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right by accepting such Right consents and agrees with the Company and with
every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be
evidenced by the certificates for shares of Common Stock registered in
the name of the holders of such shares (which certificates for shares
of Common Stock shall also constitute certificates for Rights) and
each Right will be transferable only in connection with the transfer
of Common Stock;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly endorsed
or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates duly completed and fully executed;
(c) the Company and the Rights Agent may deem and treat
the Person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated
68
<PAGE>
Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated
Common Stock certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or
any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise
restraining performance of such obligation; provided, however, the
Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
69
<PAGE>
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
one one-hundredth of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right or Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 24), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent. (a) The Company
agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and other disbursements
70
<PAGE>
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability in the
premises.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Agreement in reliance upon any
Right Certificate or certificate for Preferred Stock or Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. (a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or
71
<PAGE>
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Rights Agent or any successor Rights Agent shall
be a party, or any corporation succeeding to the corporate trust or stock
transfer business of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto; provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21.
The purchase of all or substantially all of the Rights Agent's assets employed
in the performance of transfer agent activities shall be deemed a merger or
consolidation for purposes of this Section 19. In case at the time such
successor Rights Agent shall succeed to the agency created by this Agreement,
any of the Right Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent;
72
<PAGE>
and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the Rights
Agent as to
73
<PAGE>
any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter (including, without limitation, the identity of an
Acquiring Person and the determination of the Current Market Price per
share of Preferred Stock and Common Stock) be proved or established by
the Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, the Secretary or Acting
Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for
its own negligence, bad faith or willful misconduct.
74
<PAGE>
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except as to its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made
by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any adjustment required under the provisions of
Sections 11 or 13 or responsible for the manner, method or amount of
any such adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after actual notice of any
such adjustment), nor shall it be responsible for any determination by
the Board of Directors of the Company
75
<PAGE>
of the Current Market Price of the Rights or Preferred Stock or Common
Stock, nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of
any shares of Common Stock or Preferred Stock or other securities to
be issued pursuant to this Agreement or any Right Certificate or as to
whether any shares of Preferred Stock or Common Stock or other
securities will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice
President, the Secretary, the Acting Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or
76
<PAGE>
instructions in connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in any
of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal entity,
except it may not act for an Acquiring Person in an investment banking
capacity, or otherwise assist an Acquiring Person in ways hostile to
the Company, without the consent of the Company.
(i) The Rights Agent may execute and exercise any of the
rights and powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Rights
Agent shall not be answerable or accountable for any act, omission,
default, neglect or misconduct of any such attorneys or
77
<PAGE>
agents or for any loss to the Company or to holders of the Rights
resulting from any such act, omission, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of its rights if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate attached
to the form of assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an affirmative
response to clause 1 and/or 2 thereof, the Rights Agent shall not take
any further action with respect to such requested exercise or transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be dis-
78
<PAGE>
charged from its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common Stock and
Preferred Stock by registered, certified or express mail, and to the holders of
the Right Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock by registered, certified
or express mail, and to the holders of the Right Certificates by first- class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing
79
<PAGE>
business under the laws of the United States or of any state of the United
States, in good standing, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $100
million. After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock and Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
80
<PAGE>
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by resolution of its Board of
Directors, to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or sale of
Common Stock following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities, notes or debentures hereinafter issued by the Company,
and (b) may, in any other case, if deemed necessary or appropriate by the Board
of Directors of the Company, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Right Certificates shall be issued if, and
to the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse
81
<PAGE>
tax consequences to the Company or the Person to whom such Right Certificates
would be issued, and (ii) no such Right Certificates shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu
of the issuance thereof.
Section 23. Redemption. (a) The Company may, by resolution
of its Board of Directors (which resolution shall, if adopted following the
Stock Acquisition Time, be effective only with the concurrence of a majority of
the Continuing Directors and only if the Continuing Directors constitute a
majority of the number of directors then in office), at its option, at any time
prior to the earlier of (x) the Close of Business on the tenth Business Day
following the Stock Acquisition Time or (y) the Close of Business on the Final
Expiration Date, redeem all but not less than all of the then outstanding
Rights at a redemption price of $0.01 per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date hereof (such redemption price being hereinafter referred to as the
"Redemption Price"). Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after the first occurrence of
a Section 11(a)(ii) Event until such time as the Company's right of redemption
under this Section 23(a) has
82
<PAGE>
expired. The Board of Directors of the Company may, in its discretion, at any
time prior to the Stock Acquisition Time, extend the time within which to
redeem the then outstanding Rights prior to their exercise. The redemption of
the Rights by the Board of Directors may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish. The Company may, at its option, pay the Redemption
Price in cash, Common Stock (based on the Current Market Price of the Common
Stock at the time of redemption) or any other form of consideration deemed
appropriate by the Board of Directors of the Company.
(b) Immediately upon the action of the Board of Directors
of the Company (with, if required, the concurrence of a majority of the
Continuing Directors) ordering the redemption of the Rights (or at such time
subsequent to such action as the Board of Directors, with, if required, the
concurrence of a majority of the Continuing Directors, may determine), evidence
of which shall have been filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the action of the Board of Directors
ordering the redemption of
83
<PAGE>
the Rights, the Company shall give notice of such redemption to the holders of
the then outstanding Rights by mailing such notice to all such holders at their
last addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the transfer agent for
the Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates
or Associates may redeem, acquire or purchase any Rights at any time in any
manner other than that specifically set forth in this Section 23, and other
than in connection with the repurchase of Common Stock of the Company prior to
the Distribution Date.
Section 23A. Exchange. (a) The Board of Directors of the
Company (with the concurrence of a majority of the Continuing Directors and
only if the Continuing Directors constitute a majority of the number of
Directors then in office) may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e)) for Common Stock at an exchange
84
<PAGE>
ratio of one share of Common Stock per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other than the
Company, any wholly owned Subsidiary of the Company, any employee benefit plan
of the Company or any such Subsidiary, or any entity holding Common Stock as a
fiduciary for or pursuant to the terms of any such employee benefit plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 23A, evidence of which shall have been filed with the Rights
Agent, and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of Common Stock equal
to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give,
85
<PAGE>
or any defect in, such notice shall not affect the validity of such exchange.
The Company shall promptly mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear upon the registry
books of the Rights Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the exchange of the
Common Stock for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 7(e)) held by each
holder of Rights.
(c) In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this Section
23A, the Company shall take all such action as may be necessary to authorize
additional Common Stock for issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions
of Common Stock or to distribute certificates which evidence fractional Common
Stock. In lieu of such
86
<PAGE>
fractional shares, the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional shares would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole share of Common Stock. For the purposes of this paragraph
(d), the current market value of a whole share of Common Stock shall be the
closing price of a share of Common Stock (as determined pursuant to the second
sentence of Section 11(d)) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 23A.
Section 24. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of any class to
the holders of its Preferred Stock or to make any other distribution to the
holders of its Preferred Stock (other than a regular quarterly dividend out of
earnings on retained earnings of the Company at a rate not in excess of 125% of
the rate of the last regular quarterly cash dividend theretofore paid), or (ii)
to offer to the holders of Preferred Stock options, rights or warrants to
subscribe for or to purchase any additional Preferred Stock or shares of stock
of any class or any other securities, rights or options, or (iii) to effect any
reclassification of the Preferred Stock (other than a reclassification
involving only the subdivision of outstanding
87
<PAGE>
shares of Preferred Stock), or (iv) to effect any merger, consolidation or
other combination into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other transfer),
in one or more transactions, of more than 50% of the assets, cash flow or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person, or (v) to effect the liquidation, dissolution or winding up of
the Company, then, in each such case, the Company shall give to each holder of
a Right, in accordance with Section 25 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on which such
reclassification, merger, consolidation, combination, sale, transfer,
liquidation, dissolution or winding up is to take place and the date of
participation therein by the holders of Common Stock and/or Preferred Stock, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least twenty days prior to
the record date for determining holders of Preferred Stock for purposes of such
action, and in the case of any such other action, at least twenty days prior to
the date of the taking of such proposed action or the date of participation
therein by the holders of
88
<PAGE>
Common Stock and/or Preferred Stock, whichever shall be the earlier. The
failure to give notice required by this Section 24 or any defect therein shall
not affect the legality or validity of the action taken by the Company or the
vote upon any such action.
(b) In case any of the events set forth in Section
11(a)(ii) or Section 13(a) of this Agreement shall occur, then, in any such
case, (i) the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, to the extent feasible and in accordance with
Section 25, a notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights under Section
11(a)(ii) or Section 13(a), and (ii) all references in Section 24(a) hereof to
Preferred Stock shall be deemed thereafter to refer also to Common Stock or
other securities issuable in respect of the Rights.
Section 25. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
89
<PAGE>
American Standard Companies Inc.
One Centennial Avenue
Piscataway, NJ 08855-6820
Attention: Acting Secretary
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Citibank, N.A.
120 Wall Street
New York, New York 10043
Attn: Corporate Agency and Trust Dept.
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate (or if prior
to the Distribution Date to each holder of a certificate representing shares of
Common Stock) shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such Right holder (or if prior to the
Distribution Date to such holder of Common Stock) at the address of such holder
as shown on the registry books of the Company.
Section 26. Supplements and Amendments. The Company may, by
resolution of its Board of Directors, and the Rights Agent shall, if the
Company so directs, supple-
90
<PAGE>
ment or amend any provision of this Agreement in any respect whatsoever
(including without limitation any extension of the period in which the Rights
may be redeemed) at any time prior to the Stock Acquisition Time, without the
approval of any holders of certificates representing shares of Common Stock or,
after the Distribution Date, of Right Certificates. From and after the Stock
Acquisition Time, the Company may, by resolution of its Board of Directors
(which resolution shall be effective only with the concurrence of a majority of
the Continuing Directors, and only if the Continuing Directors constitute a
majority of the number of directors then in office), and the Rights Agent
shall, if the Company so directs, supplement or amend this Agreement without
the approval of any holders of certificates representing shares of Common Stock
or of Right Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder or (iv) to change or supplement or make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Rights Agent may deem necessary or desirable, which shall not
adversely affect the interests of the holders of Right Certificates (other than
an Acquiring Person or an
91
<PAGE>
Affiliate or Associate thereof); provided, however, that this Agreement may not
be supplemented or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights may be redeemed or to
modify the ability (or inability) of the Board of Directors of the Company
(with, where required, the concurrence of a majority of the Continuing
Directors) to redeem the Rights, in either case at such time as the Rights are
not then redeemable or (B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the rights of or the
benefits to the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of any such Person). Upon the delivery of a certificate
from an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 26, the
Rights Agent shall execute such supplement or amendment. Prior to the Stock
Acquisition Time, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
Section 27. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the
92
<PAGE>
benefit of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding
shares of Common Stock of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act. The Board of Directors of the
Company (with, where specifically provided for herein, the concurrence of the
Continuing Directors or the Outside Directors) shall have the exclusive power,
authority and discretion to administer this Agreement and to exercise all
rights and powers specifically granted to such Board of Directors (with, where
specifically provided for herein, the concurrence of the Continuing Directors
or the Outside Directors) or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including, but not limited to, a determi-
93
<PAGE>
nation to redeem or not redeem the Rights, to amend the Agreement or to find or
to announce publicly that any Person has become an Acquiring Person). All such
actions, calculations, interpretations and determinations (including, for
purposes of clauses (i) and (iii) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company
(with, where specifically provided for herein, the concurrence of the
Continuing Directors or the Outside Directors), the Outside Directors or the
Company (i) shall be within the discretion of the Board of Directors (with,
where specifically provided for herein, the concurrence of the Continuing
Directors or the Outside Directors), (ii) shall be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Right Certificates
and all other parties, and (iii) shall not subject the Board of Directors of
the Company, the Continuing Directors or the Outside Directors to any liability
to the holders of the Rights and Right Certificates.
Section 29. Benefits of this Agree- ment. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior
to the Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agree-
94
<PAGE>
ment; but this Agreement shall be for the sole and exclusive benefit of
the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, registered holders of the
Common Stock).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing
the invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23
hereof shall be reinstated and shall not expire until the Close of Business on
the tenth Business Day following the date of such determination by the Board of
Directors. Without limiting the foregoing, if any provision of this Agreement
requiring that a determination be made by the Board of Directors with the
concurrence of a majority of
95
<PAGE>
the Continuing Directors or the Outside Directors or by the Outside Directors
is held by a court of competent jurisdiction or other authority to be invalid,
void, or unenforceable, such determination shall then be made by the Board of
Directors in accordance with applicable law and the Company's certificate of
incorporation and by-laws.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
96
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
AMERICAN STANDARD COMPANIES INC.
By: /s/ RICHARD A. KALAHER
-----------------------------
Name: Richard A. Kalaher
Title: Acting General Counsel
& Secretary
CITIBANK, N.A.
By: /s/ JOHN W. REASOR
-----------------------------
Name: John W. Reasor
Title: Assistant Vice President
97
<PAGE>
EXHIBIT A
CERTIFICATE OF DESIGNATION OF JUNIOR
PARTICIPATING CUMULATIVE PREFERRED STOCK
Par Value $.01 Per Share
of
American Standard Companies Inc.
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
We, G. Ronald Simon, Vice President and Controller, and
Richard A. Kalaher, Secretary of American Standard Companies Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof,
DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the said Corporation, the said
Board of Directors on January 4, 1995, by the affirmative vote of at least a
majority of the members of the Board of Directors, adopted the following
resolution creating a series of 900,000 shares of Preferred Stock, par value
$.01 per share:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the Corporation
be, and it hereby is, created, and that the designation and amount
<PAGE>
thereof and the voting powers, preferences and relative participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount.
The shares of such series shall be designated as Junior
Participating Cumulative Preferred Stock, par value $.01 per share (the "Junior
Preferred Stock") and the number of shares constituting such series initially
shall be 900,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Junior Preferred Stock to a number less than 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 Junior Preferred Stock.
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 Junior Preferred Stock with respect to dividends, the
holders of shares of Junior Preferred Stock, in preference to the
holders of Common Stock and of any other junior stock which may be
outstanding, 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 January,
April, July and October 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 Junior Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of (a)
$25.00 per share ($100.00 per annum), 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
A-2
<PAGE>
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 Junior Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on 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 Junior 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 Junior 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 Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $25.00 per share ($100.00 per
annum) on the Junior 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 Junior Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares
of Junior Preferred Stock, 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
A-3
<PAGE>
date for the determination of holders of shares of Junior 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 accumulate
but shall not bear interest. Dividends paid on the shares of Junior
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 Junior 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 Junior Preferred Stock shall have the
following voting rights.
(A) Subject to the provisions for adjustment as hereinafter
set forth, each share of Junior Preferred Stock shall entitle the
holder thereof to 100 votes (and each one one-hundredth of a share of
Junior Preferred Stock shall entitle the holder thereof to one vote)
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 Common Stock payable in shares of Common Stock
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by classification 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
Junior 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.
A-4
<PAGE>
(B) Except as otherwise provided herein, in the Certificate
of Incorporation, in any other certificate of designation creating a
series of preferred stock or any similar stock, or by law, the holders
of shares of Junior 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) If at any time the Corporation shall not have declared
and paid all accrued and unpaid dividends on the Junior Preferred
Stock as provided in Section 2 hereof for four consecutive Quarterly
Dividend Payment Dates, then, in addition to any voting rights
provided for in paragraphs (A) and (B), the holders of the Junior
Preferred Stock shall have the exclusive right, voting separately as a
class, to elect two directors on the Board of Directors of the
Corporation (such directors, the "Preferred Directors"). The right of
the holders of the Junior Preferred Stock to elect the Preferred
Directors shall continue until all such accrued and unpaid dividends
shall have been paid. At such time, the terms of any of the Preferred
Directors shall terminate. At any time when the holders of the Junior
Preferred Stock shall have thus become entitled to elect Preferred
Directors, a special meeting of stockholders shall be called for the
purpose of electing such Preferred Directors, to be held within 30
days after the right of the holders of the Junior Preferred Stock to
elect such Preferred Directors shall arise, upon notice given in the
manner provided by law or the by-laws of the Corporation for giving
notice of a special meeting of stockholders (provided, however, that
such a special meeting shall not be called if the annual meeting of
stockholders is to convene within said 30 days). At any such special
meeting or at any annual meeting at which the holders of the Junior
Preferred Stock shall be entitled to elect Preferred Directors, the
holders of a majority of the then outstanding Junior Preferred Stock
present in person or by proxy shall be sufficient to constitute a
quorum for the election of such directors. The persons elected by the
holders of the Junior Preferred Stock at any meeting in accordance
with the terms of the preceding sentence shall become directors on the
date of such election.
A-5
<PAGE>
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Junior 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
Junior 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 or stock ranking junior (either
as to dividends or upon liquidation, dissolution or
winding-up) to the Junior 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 Junior Preferred Stock except dividends
paid ratably on the Junior 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 on a parity
(either as to dividends or upon liquidation, dissolution or
winding-up) with the Junior Preferred Stock, provided that
the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for
shares of any stock of the of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding-up) to the Junior Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Junior Preferred Stock, or any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding-up) with the Junior
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
A-6
<PAGE>
Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series or 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 Junior 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,
without designation as to series, and may be reissued as part of a new series
of preferred stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein, in the Certificate of Incorporation, in any other certificate of
designation 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 voluntary or involuntary 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 Junior Preferred Stock unless prior thereto,
the holders of shares of Junior Preferred Stock shall have received the higher
of (i) $100.00 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment, or (ii) 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 Common Stock; nor shall any distribution be
made (B) to the holders of stock ranking on a parity (either as to
A-7
<PAGE>
dividends or upon liquidation, dissolution or winding-up) with the Junior
Preferred Stock, except distributions made ratably on the Junior Preferred
Stock and all other 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 shall at any time
declare or pay any dividend on 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 Junior Preferred Stock are entitled immediately prior to such
event under the provision 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, or otherwise changed, then in any such case each share of
Junior 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 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 Junior Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common
A-8
<PAGE>
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 Junior Preferred Stock shall not be redeemable.
Section 9. Rank.
Unless otherwise provided in the Certificate of Incorporation
or a certificate of designation relating to a subsequent series of preferred
stock of the Corporation, the Junior Preferred Stock shall rank junior to all
other series of the Corporation's preferred stock as to the payment of
dividends and the distribution of assets on liquidation, dissolution or
winding-up, and senior to the Common Stock of the Corporation.
Section 10. Amendment.
The Certificate of Incorporation, as amended and restated,
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Junior 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 Junior Preferred Stock, voting together
as a single series.
Section 11. Fractional Shares.
Junior Preferred Stock may be issued in fractions of a share
(in one one-hundredths (1/100) of a share and integral multiples thereof) which
shall entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate
A-9
<PAGE>
in distributions and to have the benefit of all other rights of holders of
Junior Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designation is
executed on behalf of the Corporation by its Vice President and attested by its
Secretary this 29th day of March, 1995.
By: /s/ G. Ronald Simon
-----------------------------
Name: G. Ronald Simon
Title: Vice President and
Controller
ATTEST:
By: /s/ Richard A. Kalaher
-------------------------
Name: Richard A. Kalaher
Title: Secretary
A-10
<PAGE>
EXHIBIT B
[Form of Face of Right Certificate]
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER JANUARY 5, 2005 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE WERE
ISSUED TO A PERSON WHO WAS AN ACQUIRING PERSON OR AN ASSOCIATE OR
AFFILIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY BECOME NULL
AND VOID AS PROVIDED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.](1)
Right Certificate
AMERICAN STANDARD COMPANIES INC.
This certifies that _______________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of January 5, 1995 (the "Rights
Agreement") between American Standard Companies Inc., a Delaware corporation
(the "Company"), and Citibank, N.A. (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M.
____________________
1. The portion of the legend in brackets shall be inserted only if applicable.
<PAGE>
(New York City time) on January 5, 2005, at the principal office of the Rights
Agent, or its successors as Rights Agent, in New York, New York, one
one-hundredth of a share of Junior Participating Cumulative Preferred Stock,
par value $.01 per share (the "Preferred Stock"), of the Company, at a purchase
price of $100 per one one-hundredth of a share (the "Purchase Price") by
certified bank check or money order payable to the order of the Company, upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase duly executed. The number of Rights evidenced by this Right
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of January 4, 1995, based on the shares of
Preferred Stock of the Company as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and
the number of one one-hundredths of a share of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement,
B-2
<PAGE>
which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent, the Company
and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of American Standard Companies Inc.
and the above-mentioned office of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights Agent, may
be exchanged for another Right Certificate or Right Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of one one-hundredths of a share of Preferred Stock as the Rights
evidenced by the Right Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per
B-3
<PAGE>
Right. Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Right Certificate may be exchanged by the Company in whole or in part
for Common Stock of the Company under certain circumstances.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Common Stock or
of any other securities of the Company which may at the time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting thereof, or to give
or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
B-4
<PAGE>
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
B-5
<PAGE>
[Form of Reverse of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED___________________________________________
hereby sells, assigns and transfers unto _____________________________________
______________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________
Attorney, to transfer the within Right Certificate on the books of the within
named Company, with full power of substitution.
Dated: ____________, ____
____________________________
Signature
(Signature must conform in all
respects to name of holder as
set forth on the face of this
Right Certificate, without
alteration or enlargement or
any change whatsoever.)
Signature Guaranteed:
__________________________________________________________
B-6
<PAGE>
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
____________________________
Signature
(Signature must conform in all
respects to name of holder as
set forth on the face of this
Right Certificate, without
alteration or enlargement or
any change whatsoever.)
B-7
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right Certificate.)
To American Standard Companies Inc.:
The undersigned hereby irrevocably elects to exercise _________ Rights
represented by this Right Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of such Rights and requests that certificates for
such shares be issued in the name of:
Please insert social security or other identifying number:
_______________________________________________________________________________
(Please print name and address)
_______________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number:
_______________________________________________________________________________
(Please print name and address)
_______________________________________________________________________________
Dated: _________________, ____
B-8
<PAGE>
______________________________________
Signature
(Signature must conform in all respects
to name of holder as set forth on the
face of this Right Certificate, without
alteration or enlargement or any change
whatsoever.)
Signature Guaranteed:
_______________________________________________________________________________
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement).
______________________________________
Signature
(Signature must conform in all respects
to name of holder as set forth on the
face of this Right Certificate, without
alteration or enlargement or any change
whatsoever.)
B-9
<PAGE>
NOTICE
In the event the certification set forth above in the Forms of
Assignment and Election to Purchase is not completed, the Company will deem the
beneficial owner of the Rights evidenced by this Right Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) and, in the case of an Assignment, will affix a legend to that
effect on any Right Certificates issued in exchange for this Right Certificate.
B-10
<PAGE>
EXHIBIT C
American Standard Companies Inc.
(formerly named ASI Holding Corporation)
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On January 4, 1995, the Board of Directors of American Standard
Companies Inc. (formerly named ASI Holding Corporation) (the "Company")
declared a dividend distribution of one Right for each outstanding share of
Common Stock, par value $.01 per share (the "Common Stock"), of the Company.
The distribution was payable on January 5, 1995 to stockholders of record on
January 4, 1995 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of its Junior
Participating Cumulative Preferred Stock, par value $.01 per share (the
"Preferred Stock") at a price of $100 per one one-hundredth of a share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and Citibank, N.A., as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) ten business days following the time
(the "Stock Acquisition Time") of a public announcement by the Company that a
person or group of affiliated or associated persons (other than (x) directors,
officers and employees of the Company, American Standard Inc. ("ASI") and their
subsidiaries as a group, (y) Kelso ASI Partners, L.P. or any of its affiliates
("ASI Partners") or any of their immediate tranferees, provided any such
transferee holding 15% or more of the outstanding Common Stock does not acquire
any additional shares of Common Stock except from ASI Partners or its
affiliates, or (z) any employee benefit plan of the Company, ASI or their
subsidiaries including the American-Standard Employee Stock Ownership Plan) has
acquired beneficial ownership (as defined in the Rights Agreement) of 15% or
more of the outstanding shares of Common Stock of the Company (such 15%
beneficial owner, an "Acquiring Person"), or (ii) ten business days, or such
later date as may be determined by the Board of Directors of the Company, after
the date of the commencement or announcement by a person of an intention to
make a tender offer or exchange offer for an amount of Common Stock which,
together with the shares of such stock already owned by such person,
constitutes 15% or more of the outstanding shares of such Common Stock (the
earlier of such
<PAGE>
dates being called the "Distribution Date"), the Rights will be evidenced, with
respect to any of the Company's Common Stock certificates outstanding as of the
Record Date, by such Common Stock certificate with a copy of this Summary of
Rights attached thereto. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with the
Company's Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after the
Record Date, upon transfer or new issuance of the Company's Common Stock, will
contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any of the Company's Common Stock certificates
outstanding as of the Record Date, even without a copy of this Summary of
Rights attached thereto, will also constitute the transfer of the Rights
associated with the shares of Common Stock represented by such certificate.
As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (the "Right Certificates") will be mailed to holders of
record of the Company's Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on January 5, 2005, unless earlier redeemed by the Company as
described below.
The Purchase Price payable, and the number of shares of Preferred Stock
or other securities or property issuable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of the
Preferred Stock, (ii) upon the fixing of a record date for the issuance to
holders of Preferred Stock of certain rights, options or warrants to subscribe
for shares of Preferred Stock or convertible securities at less than the
current market price of shares of Preferred Stock or (iii) upon the fixing of a
record date for the making of a distribution to holders of shares of Preferred
Stock of evidences of indebtedness or assets (excluding regular periodic cash
dividends not exceeding 125% of the last regular periodic cash dividend or
dividends payable in shares of Preferred Stock) or of subscription rights or
warrants (other than those referred to above). The number of Rights and number
of shares of Preferred Stock issuable upon the exercise of each Right are also
subject to
2
<PAGE>
adjustment in the event of a stock split, combination or stock dividend on the
Common Stock prior to the Distribution Date.
In the event that after the Stock Acquistion Time the Company is
acquired in a merger or other business combination transaction or 50% or more
of its assets, cash flow or earning power are sold or otherwise transferred,
proper provision shall be made so that each holder of a Right shall thereafter
have the right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction would have a market
value (as defined in the Rights Agreement) of two times the exercise price of
the Right. In the event that the Company were the surviving corporation of a
merger and its Common Stock were changed or exchanged, proper provision shall
be made so that each holder of a Right will thereafter have the right to
receive upon exercise that number of shares of common stock of the acquiring
company having a market value of two times the exercise price of the Right.
In the event that a person or group becomes an Acquiring Person
(otherwise than pursuant to a tender offer or exchange offer for all
outstanding shares of Common Stock at a price and on terms which are determined
to be fair and in the best interests of the Company and its stockholders by a
majority of the members of the Board of Directors of the Company who are
Continuing Directors (as defined below), proper provision shall be made so that
each holder of a Right, other than Rights that were beneficially owned by the
Acquiring Person, which will thereafter be void, will thereafter have the right
to receive upon exercise that number of shares of Common Stock having a market
value (as defined in the Rights Agreement) of two times the excercise price of
the Right. A person or group will not be an Acquiring Person if the Board of
Directors of the Company determines that such person or group became an
Acquiring Person inadvertently and such person or group promptly divests itself
of a sufficient number of shares of Common Stock so that such person or group
is no longer an Acquiring Person.
At any time prior to the earlier of (i) ten business days after the
Stock Acquistion Time and (ii) January 5, 2005, the Company, by resolution of
its Board of Directors, may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"). If such resolution is
adopted following the Stock Acquistion
3
<PAGE>
Time, it will be effective only with the concurrence of a majority of the
members (the "Continuing Directors") of the Board of Directors of the Company
who are not Acquiring Persons or representatives or nominees of or affiliated
or associated with an Acquiring Person and who either were members of such
Board of Directors prior to the Stock Acquisition Time or subsequently became a
member and whose election thereto was approved by a majority of the directors
who were not Acquiring Persons or representatives or nominees of or affiliated
or associated with an Acquiring Person, and only if the Continuing Directors
constitute a majority of the number of Directors then in office. The Company
may, at any time prior to the Stock Acquisition Time, extend the time in which
the Rights may be redeemed. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price.
At any time after a person becomes an Acquiring Person and prior to
the acquistion by such person of 50% or more of the outstanding Common Stock of
the Company, the Board of Directors of the Company (with the concurrence of a
majority of the Continuing Directors and only if the Continuing Directors
constitute a majority of the number of Directors then in office) may exchange
the Rights (other than Rights beneficially owned by such Acquiring Person which
have become void), in whole or in part, for Common Stock of the Company at an
exchange ratio of one share of Common Stock per Right (subject to adjustment).
Immediately upon the action of the Board of Directors of the Company ordering
the exchange of any Rights, the right to exercise such Rights will terminate
and the only right of a holder of such Rights shall be to receive that number
of shares of Common Stock equal to the number of such Rights held by such
holder multiplied by the exchange ratio.
Each share of Preferred Stock pruchasable upon exercise of the Rights
will have a minimum preferential dividend of $100.00 per year, but will be
entitled to receive, in the aggregate, a dividend of 100 times the dividend
declared on a share of Common Stock. In the event of liquidation, dissolution
or winding-up of the Company, the holders of the shares of Preferred Stock
will be entitled to recieve a minimum liquidation payment of $100.00 per
share, but will be entitled to receive an aggregate liquidation payment equal
to 100 times the payment to be made per share of Common Stock. Each share of
Preferred Stock will have
4
<PAGE>
100 votes, voting together with the shares of Common Stock. In addition, if
dividends on the Preferred Stock are in arrears for four consecutive quarterly
payment periods, the holders of the Preferred Stock will have the right, voting
as a class, to elect two members of the Board of Directors. In the event of
any merger, consolidation or other transaction in which shares of Common Stock
are exchanged, each share of Preferred Stock will be entitled to receive 100
times the amount and type of consideration received per share of Common Stock.
The rights of the shares of Preferred Stock as to dividends and liquidation,
and in the event of mergers and consolidations, are protected by anti-dilution
provisions.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
The Rights and the Rights Agreement can be amended by the Board of
Directors of the Company in any respect (including, without limitation, any
extension of the period in which the Rights may be redeemed) at any time prior
to the Stock Acquisition Time. From and after such a time, without the
approval of all holders of the Common Stock or all holders of the Rights, the
Board of Directors, by a majority of the Continuing Directors (provided that
the Continuing Directors constitute a majority of the Board) may only
supplement or amend the Rights Agreement in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained in the Rights Agreement
which may be defective or inconsistent with any other provision in the Rights
Agreement, (iii) to shorten or lengthen any time period under the Rights
Agreement or (iv) to make any changes or supplements which the Company and the
Rights Agent may deem necessary or desirable which shall not adversely affect
the interests of the holders of Right Certificates (other than an Acquiring
Person or an affiliate or associate thereof).
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement,
which is hereby incorporated herein by reference.
5
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
Overview
The Company's operating results improved in 1994, due
principally to volume increases and cost reductions in each of
its three business segments, as most markets recovered from a
worldwide recession. As a result of the Acquisition in 1988
(see Note 1 of Notes to Consolidated Financial Statements), the
Company's results of operations include the effects of purchase
accounting and reflect a highly leveraged capital structure.
<TABLE>
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Sales:
Air Conditioning Products $2,480 $2,100 $1,892
Plumbing Products 1,218 1,167 1,170
Automotive Products 759 563 730
$4,457 $3,830 $3,792
Operating Income:
Air Conditioning Products $ 182 $ 133 $ 104
Plumbing Products 111 108 108
Automotive Products 62 41 88
Operating income (a) 355 282 300
Interest expense (259) (278) (289)
Corporate items (b) (111) (85) (63)
Loss before income taxes
and extraordinary item $ (15) $ (81) $ (52)
<FN>
(a) Includes special charges of $40 million in 1994
applicable to consolidation of production facilities, employee
severance, other cost reduction actions and a provision for loss
on the early disposition of certain assets; and $8 million in
1993 related to plant shutdowns and other cost reduction
actions.
(b) Corporate items include administrative and general
expenses, accretion charges on postretirement benefit
liabilities, equity in net income (loss) of affiliated companies,
minority interest, foreign exchange transaction gains and losses
and miscellaneous income and expense. In 1994 such expenses
included a one-time special charge of $20 million in
connection with the amendment of certain agreements in
anticipation of the initial public offering of the Company's
common stock.
</FN>
</TABLE>
Results of Operations for 1994 Compared with 1993 and 1993
Compared with 1992
Consolidated sales for 1994 were $4,457 million, an increase
of $627 million, or 16% (with little effect from foreign
exchange), from $3,830 million in 1993. Sales increased for all
three segments with gains of 18% for Air Conditioning
Products, 4% for Plumbing Products and 35% for Automotive
Products.
Consolidated sales for 1993 of $3,830 million, were up
1% (6% excluding the unfavorable effects of foreign
exchange) from $3,792 million in 1992. A sales increase of
11% for Air Conditioning Products was partly offset by a
decline for Automotive Products of 23% (16% excluding the
unfavorable effects of foreign exchange). Sales for Plumbing
Products were flat (but up by 9% excluding the unfavorable
effects of foreign exchange).
Operating income for 1994 was $355 million, an
increase of $73 million, or 26% (with little effect from foreign
exchange), from $282 million in 1993 as a result of gains in
each segment, especially Automotive Products and Air
Conditioning Products. Operating income for 1994 included
charges of $26 million related to employee severance, the
consolidation of production facilities and the implementation
of other cost reduction actions. In 1994 the Company also
provided $14 million for losses on operating assets expected to
be disposed of prior to the expiration of their originally
estimated useful lives. The year 1993 included $8 million of
charges for plant shutdowns and other cost reduction actions.
Excluding those charges from the respective years, operating
income would have increased to $395 million from $290
million, or 36%, in 1994 over 1993.
Operating income for 1993 was $282 million, a
decrease of $18 million, or 6% (but an increase of less than 1%
excluding the unfavorable effects of foreign exchange), from
$300 million in 1992. The increase in operating income of
28% for Air Conditioning Products was more than offset by a
53% decrease in operating income for Automotive Products.
Plumbing Products' operating income was flat (but increased
15% excluding the unfavorable effects of foreign exchange).
<PAGE>
Results of Operations by Segment
<TABLE>
AIR CONDITIONING PRODUCTS SEGMENT
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
Sales:
<S> <C> <C> <C>
U.S. portion $2,087 $1,786 $1,572
International portion 393 314 320
Total $2,480 $2,100 $1,892
Operating Income (Loss):
U.S. portion $ 195 $ 148 $ 112
International portion (13) (15) (8)
Total (a) $ 182 $ 133 $ 104
<FN>
(a) Includes special charges of $7 million in 1994 and $5
million in 1993.
The U.S. portion of Air Conditioning Products is
composed of the Unitary Products Group, the North American
Commercial Group (excluding Canada) and exports from the
U.S. by the International Group. The international portion
consists of the non-U.S.-based operations of the International
Group and the Canadian operations of the North American
Commercial Group.
</FN>
</TABLE>
Sales of Air Conditioning Products increased 18% to
$2,480 million for 1994 from $2,100 million for 1993, as a
result of significant sales gains in the U.S. and expanding
international sales. The 1994 increase followed a gain of 11%
in 1993 from $1,892 million in 1992. Sales in the U.S.
improved significantly from depressed levels in 1992 primarily
as a result of recovery in commercial and residential
replacement and new-construction markets. Commercial
markets represent approximately 75% of Air Conditioning
Products' total sales. Over 60% of U.S. sales for Air
Conditioning Products is from the replacement, renovation and
repair markets. The U.S. sales increase in both years was
primarily attributable to the improved markets and gains in
market share. International sales decreased in 1993 due to the
economic decline in Europe.
Operating income of Air Conditioning Products
increased 37% to $182 million in 1994 from $133 million in
1993. This gain was primarily the result of increased operating
income in the United States due to higher sales together with
cost reductions. Operating income for 1993 of $133 million
was up 28% from $104 million in 1992, attributable to gains
achieved in U.S. operations.
United States - In 1994 U.S. sales increased 17% over those of
1993. Sales of commercial products increased 18% because of
higher volume (as a result of improved markets and gains in
market share, higher export sales, and the acquisition of
additional sales offices) and a shift to newer, larger-capacity,
higher-efficiency products, offset partly by the effect of lower
prices for certain products due to competitive pressures.
<PAGE>
Residential sales were up 15% due to improved replacement
and new-construction markets and share gains primarily
attributable to the success of new and redesigned products
introduced recently and improved distribution channels. The
increased sales, together with cost reductions, resulted in a
32% increase in U.S. operating income in 1994 over 1993.
In 1993 sales of commercial products increased by 11%
over the 1992 sales level, primarily from volume increases
(principally due to improved markets and increased market
share) and increased revenue from Company-owned sales
offices (acquisitions and volume growth). Residential product
sales were up 18%, driven by the improved market, the effects
of an unusually hot summer in northern areas of the United
States, and an increase in housing starts. Operating income in
the U.S. improved 32% due to the sales increases and cost
reductions.
International - International sales increased 25% in 1994, due
principally to volume increases in the Far East and Latin
America. Despite significantly higher sales, international
operations incurred an operating loss similar to that of 1993.
Latin American and Far East operations declined slightly,
reflecting costs of expansion. Offsetting these declines was an
improvement in European results, although still a loss because
of continued poor economic conditions and competitive pricing
pressures.
In 1993 international sales decreased 2%. Higher
volumes in the Far East and Mexico were more than offset by
lower sales in Europe (lower prices and volumes in a declining
market). Operating results for international operations declined
primarily as the result of a larger operating loss in Europe
because of the weak markets and lower margins. Overall,
operating income from Far East and Latin America operations
was essentially unchanged from 1992.
Backlog - The worldwide backlog for Air Conditioning
Products as of December 31, 1994, was $599 million, an
increase of 45% from December 31, 1993, excluding the
favorable effects of foreign exchange. The increase was a
result of improved markets and market share for U.S.
commercial products and expanded distribution channels and
market penetration in the Far East and Latin America.
<TABLE>
PLUMBING PRODUCTS SEGMENT
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Sales:
International portion $ 884 $ 865 $ 885
U.S. portion 334 302 285
Total $1,218 $1,167 $1,170
Operating Income (Loss):
International portion $ 138 $ 131 $ 124
U.S. portion (27) (23) (16)
Total (a) $ 111 $ 108 $ 108
<FN>
(a) Includes $19 million of special charges in 1994 and $1
million in 1993.
The international portion of Plumbing Products is
composed of the European Plumbing Products Group, the
Americas International Group and the Far East Group. The
U.S. portion is generated primarily by the U.S. Plumbing
Products Group and by export sales from the U.S.
</FN>
</TABLE>
Sales of Plumbing Products increased 4% (6%
excluding the unfavorable effects of foreign exchange) to
$1,218 million in 1994 from $1,167 million in 1993. The
exchange-adjusted improvement resulted from sales increases
of 4% for international operations and 11% for the U.S.
operations. The sales gain for the international operations was
led by volume and price gains as economic conditions in
several countries (particularly the United Kingdom ("U.K.")
and Germany) showed modest improvement over the prior
year. The strength of the European operations has been sales in
the replacement market, which has more than made up for the
effects of poor new-construction markets. Sales also increased
in Thailand, Korea and Mexico, all on higher volumes. These
increases were offset partly by lower sales in Canada and
<PAGE>
Brazil where poor economic conditions continued, and by the
effect of the deconsolidation of operations in the People's
Republic of China ("PRC") which in April 1994 were
contributed to the new joint venture operating in that country.
Sales in the U.S. increased as a result of improved markets and
an expanded retail customer base. A basic shift from the
wholesale distribution channel to the retail sales channel has
been developing over recent years, a trend the Company
believes will continue and will result in increased sales because
of strong product and brand-name recognition. Retail markets
accounted for 24% of the total 1994 U.S. plumbing products
sales, up from 20% in 1993.
Operating income of Plumbing Products was $111
million for 1994 compared with $108 million for 1993 as a
result of improvements in international operations. Operating
income gains reflected the sales improvements and cost
reductions in most operations. In the U.S. improvements from
increased sales and cost reductions at manufacturing facilities
were more than offset by a provision of $14 million related to
certain assets that will be disposed of prior to the expiration of
their originally estimated useful lives. Overall Plumbing
Products' results were also negatively affected by a provision
of $5 million related to employee severance and other cost
reduction actions, compared to $1 million of similar charges in
1993. Excluding such provisions from the respective years,
operating income would have increased to $130 million from
$109 million, or 19%, in 1994 from 1993.
Sales of Plumbing Products in 1993 at $1,167 million
were at essentially the same level as the $1,170 million of sales
in 1992 (but increased by 9% excluding the unfavorable effects
of foreign exchange). For the international operations sales
increased on an exchange-adjusted basis, primarily because of
price increases in Italy, Germany, the U.K., Brazil and Greece
and because of the consolidation of Incesa (a previously
unconsolidated group of Central American joint ventures)
effective January 1, 1993. Sales also increased because of
higher volume and prices in Thailand, the PRC and the
Philippines. Sales in the U.S. increased largely as a result of
increased export sales and to a lesser extent from price
increases, a more favorable sales mix and an increase in the
retail sales channel.
In 1993 operating income of Plumbing Products was
$108 million, the same amount as in 1992, but excluding the
unfavorable effects of foreign exchange operating income
increased by 15%. This exchange-adjusted increase occurred
primarily because of the price gains, cost reductions resulting
from restructuring, and efficiency improvements in the U.K.,
France, Italy and Germany. Gains were also realized in Brazil,
Thailand, and the PRC because of higher prices and volumes
and from the consolidation of the Incesa group, partly offset by
lower results in Mexican chinaware operations. The increased
operating loss for the U.S. operations in 1993 was due to lower
margins on both domestic and export sales, increased
advertising costs and other expenses associated with expansion
of the retail sales channel.
Backlog - Plumbing Products' backlog as of December 31,
1994 was $213 million, an increase of 43% from December 31,
1993 (excluding the favorable effects of foreign exchange),
primarily from expanded sales volume.
<PAGE>
<TABLE>
AUTOMOTIVE PRODUCTS SEGMENT
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Sales $759 $563 $730
Operating Income (a) 62 41 88
<FN>
(a) Includes special charges of $14 million in 1994 and $2
million in 1993.
</FN>
</TABLE>
Sales of Automotive Products for 1994 were $759
million, an increase of $196 million, or 35%, from $563
million in 1993. Unit volume of truck and bus production in
Western Europe improved significantly and aftermarket sales
grew solidly. Sales of Perrot, a German brake manufacturer
which the Company acquired in January 1994, accounted for
$62 million of the gain. Sales volumes were significantly
higher in the U.K. (as a result of the growing utility vehicle
business in that country), in Sweden (where truck
manufacturing increased by approximately 50%) and in Brazil,
France and Spain (where demand also increased).
Operating income for Automotive Products was $62
million in 1994, an increase of 51% compared with $41
million in 1993. The increase was primarily attributable to
increased sales volume and the effect of cost reductions, partly
offset by a loss experienced by Perrot. Operating income for
1994 reflected charges of $14 million related to employee
severance and the consolidation of production facilities.
Charges of a similar nature in 1993 totalled $2 million.
Excluding those charges from the respective years, operating
income would have increased to $76 million from $43 million,
or 77%, in 1994 over 1993.
Sales of Automotive Products in 1993 were $563
million, down 23% from $730 million in 1992 (16% excluding
the unfavorable effects of foreign exchange). The sales
decrease was due primarily to a volume decline as a result of a
30% decrease in Western European truck and bus production,
led by a 34% decline in Germany, and a 23% decrease in
Western European trailer production. Volumes were also down
in all other European countries in which Automotive Products
has operations. Original equipment sales volume in Europe
was down 22% and aftermarket business was down 10%.
Volume in Brazil was slightly higher.
Operating income for Automotive Products in 1993
decreased 53% (50% excluding unfavorable foreign exchange
effects) to $41 million from $88 million in 1992, principally
because of the lower sales and production volume and the
inability to pass on material and labor cost increases in a very
competitive, declining market and the provisions related to
employee severance. Those effects were partly offset by the
favorable effects of cost reductions in manufacturing from
Demand Flow Technology implementation and reduced
operating expenses.
Backlog - Automotive Products' backlog as of December 31,
1994, was $319 million, an increase of 56% from December
31, 1993 (excluding the favorable effects of foreign exchange),
as a result of the significantly improved volumes and the
inclusion of the backlog of Perrot. Excluding Perrot the
backlog increased 35%.
<PAGE>
Financial Review
1994 Compared with 1993 and 1993 Compared with 1992 -
Interest expense for 1994 decreased $19 million compared to
1993 primarily as a result of lower overall interest rates
achieved through a 1993 refinancing. This improvement
occurred despite a $7 million increase in interest expense
related to the 12 3/4% Junior Subordinated Debentures issued
in June 1993 in exchange for American Standard Inc.'s 12 3/4%
Exchangeable Preferred Stock. Interest expense decreased in
1993 compared to 1992 primarily because of lower overall
interest rates on new debt issued as part of the 1993
refinancing, partly offset by additional interest expense as a
result of the issuance of the 12 3/4% Junior Subordinated
Debentures. Corporate items increased in 1994 principally
because of a special charge of $20 million paid in connection
with the amendment of certain agreements in anticipation of
the initial public stock offering. Corporate items increased $22
million in 1993 compared to 1992 primarily as a result of
foreign exchange losses, higher minority interest charges and
lower equity in net income of affiliated companies.
The income tax provisions for 1994 and 1993 were $62
million and $36 million, respectively, despite losses (before
income taxes and extraordinary items) of $15 million and $81
million for 1994 and 1993, respectively. These provisions
reflected the taxes payable on profitable foreign operations,
offset partly in 1993 by tax benefits from certain foreign net
operating losses. The provision for 1994 was adversely
affected by less favorable tax treatment with respect to certain
foreign items, primarily in Germany. Other factors
contributing to the unusual relationship between the pre-tax
results and the tax provision for both years are the
nondeductibility for tax purposes of the amortization of
goodwill and the effects of other purchase accounting
adjustments and the share allocations made by the ESOP as
well as tax rate differences and withholding taxes on foreign
earnings. See Note 7 of Notes to Consolidated Financial
Statements.
As a result of the redemption of debt in 1994 with the
proceeds of the October Borrowing (see Liquidity and Capital
Resources) and in 1993 as a result of the 1993 refinancing,
1994 and 1993 included extraordinary charges of $9 million
and $92 million, respectively (including call premiums, the
write-off of unamortized debt issuance costs and in 1993 the
loss on cancellation of foreign currency swap contracts), on
which no tax benefit was available. In addition the first quarter
of 1995 will include a similar extraordinary charge of $30
million in connection with the debt repayment resulting from
the 1995 Refinancing (as defined below).
Liquidity and Capital Resources
In the first quarter of 1995 the Company completed a major
refinancing (the "1995 Refinancing") consisting of: (i) the
October 1994 amendment to the Company's 1993 credit
agreement (the "1993 Credit Agreement") which provided an
additional term loan of $325 million (the "October
Borrowing"), the proceeds of which were used to redeem, in
November 1994, $316.8 million in aggregate principal amount
of the Company's 14 1/4% Subordinated Discount Debentures
Due 2003 and 12 3/4% Junior Subordinated Debentures Due
2003 and to pay redemption premiums of $4.4 million and debt
issuance and other costs; (ii) the Offering of common stock in
the first quarter of 1995, the net proceeds of which, totaling
approximately $282 million (including proceeds from the
exercised portion of the underwriters' over-allotment option),
were used to repay indebtedness; and (iii) the February 1995
amendment and restatement of the 1993 Credit Agreement (as
so amended and restated, the "1995 Credit Agreement") which
provided a secured, multi-currency, multi-borrower credit
facility aggregating $1.0 billion, the proceeds of which
replaced outstanding borrowings under the 1993 Credit
Agreement.
The 1995 Credit Agreement provides to American
Standard Inc. and certain subsidiaries (the "Borrowers") an
aggregate, secured facility of $1.0 billion available to all
Borrowers as follows: (a) a $100 million U.S. Dollar Term
Loan Facility (the "Term Loan Facility") which expires in
2000; (b) a $250 million U.S. Dollar Revolving Credit
Facility and a $300 million Multi-currency Revolving Credit
Facility (the "Revolving Facilities") which expire in 2002; and
(c) a $350 million Multi-currency Periodic Access Credit
Facility which expires in 2002.
<PAGE>
The 1995 Credit Agreement provides lower interest
costs, increased borrowing capacity, less restrictive covenants
and lower annual scheduled debt maturities through 2001.
Under the 1995 Credit Agreement the Company is no longer
required to reduce the amount of borrowings outstanding under
the Revolving Facilities to $50 million for a 30-day period
once a year. Each of its outstanding revolving loans is due at
the end of each interest period (a maximum of six months) but
the Company may, however, concurrently reborrow the
outstanding obligations subject to compliance with applicable
conditions of the 1995 Credit Agreement.
In connection with the Acquisition in 1988 (see Note 1
of Notes to Consolidated Financial Statements), the Company
incurred substantial indebtedness, resulting in its highly
leveraged capital structure. At December 31, 1994, the
Company's total indebtedness including the 1993 Credit
Agreement was approximately $2,364 million. After
completion of the 1995 Credit Agreement and after giving
effect to the Offering and the application of net proceeds
therefrom, the Company's total indebtedness was
approximately $2,129 million and annual scheduled debt
maturities will be $40 million, $64 million, $70 million and
$81 million for the years 1995 through 1998, respectively. To
meet its debt service obligations with operating cash flow and
comply with the covenants and restrictions contained in the
1995 Credit Agreement, the Company will have to sustain the
improved level of operating results and cash flow attained in
1994. Cash flows from operations have improved $83 million
during the past two years and are expected to improve further.
The Company believes that the amounts available from
operating cash flows, funds available under the Revolving
Facilities and future debt or equity financings will be sufficient
to meet its expected cash needs and planned capital
expenditures for the foreseeable future.
After completing the 1995 Refinancing the Company
had outstanding borrowings of $293 million under the
Revolving Facilities. There was $205 million available under
the Revolving Facilities after reduction for borrowings and for
$52 million of outstanding letters of credit. In addition, at
December 31, 1994, the Company's foreign subsidiaries had
$50 million available under overdraft facilities which can be
withdrawn by the banks at any time.
The 1995 Credit Agreement contains various covenants
that limit, among other things, indebtedness, dividends on and
redemptions of capital stock of the Company, purchases and
redemptions of other indebtedness of the Company (including
its outstanding debentures and notes), rental expense, liens,
capital expenditures, investments or acquisitions, disposal of
assets, the use of proceeds from asset sales and certain other
business activities and require the Company to meet certain
financial tests. Certain American Standard Inc. debt
instruments also contain financial and other covenants. In order
to maintain compliance with the covenants and restrictions
contained in its previous bank credit agreements, the Company
from time to time had to obtain waivers and amendments. The
Company believes it is currently in compliance with the
covenants contained in the 1995 Credit Agreement, but may
have to obtain similar waivers or amendments in the future.
The Company does not currently intend to pay
dividends and is currently restricted from doing so under the
terms of both the 1995 Credit Agreement and certain
publicly-traded debt securities.
For a discussion of certain tax matters, see Note 7 of
Notes to Consolidated Financial Statements.
Cash Flows
Net cash provided by operating activities, after cash interest
paid of $186 million, was $257 million for 1994, compared
with $201 million for 1993. The $56 million increase resulted
primarily from improved operating results which included a
non-cash asset loss provision and increases in accruals
(primarily for severance and facilities consolidations, income
<PAGE>
taxes and employee compensation). After allowing for $117
million of net investing activities (principally capital
expenditures of $130 million), net cash flow available for
financing activities amounted to $140 million of which $101
million was used to repay term loans.
Capital Expenditures
The Company's capital expenditures for 1994 were $130
million compared with $98 million for 1993, an increase of
33%. The increase for 1994 relates primarily to investments in
affiliated companies ($24 million in 1994 compared to $8
million in 1993), modernization of recent acquisitions, new
products and the continuing implementation of Demand Flow.
The Company believes capital spending in recent years
has been sufficient for maintenance purposes, important
product and process redesigns, expansion projects and strategic
investments. The Company expects capital expenditures,
including investments in affiliated companies, will increase
approximately 20% in 1995.
Capital expenditures for Air Conditioning Products for
1994 were $45 million, including $6 million of investments in
affiliates, an increase of 18% over the $38 million of capital
spending in 1993. Major expenditures included projects related
to Demand Flow, new products such as the Voyager III
(medium-tonnage product line), changes related to new
refrigerant requirements and capacity expansion.
Plumbing Products' capital expenditures for 1994 were
$55 million, including $10 million of investments in affiliated
companies, compared with capital expenditures of $46 million
in 1993 (including investments of $8 million in affiliated
companies), an increase of 20% (25% excluding the effects of
foreign exchange). Expenditures for 1994 included cash
investments in affiliates in the PRC and expansion of capacity
in other Far East operations, modernization of the Czech
Republic operations, completion of a brass fittings factory in
Egypt and automatic glazing systems in Italy.
Capital expenditures for Automotive Products in 1994
were $30 million, including investments in affiliated
companies of $8 million (Perrot and WABCO Spain),
approximately double the 1993 capital expenditures of $14
million. Major projects included construction of a test track in
Germany, continued implementation of Demand Flow and
cost-reduction projects.
Cyclicality; Seasonality
The preponderance of Air Conditioning Products and
Plumbing Products sales are to the replacement, remodeling,
and repair markets. In 1994, only about 6% of the Company's
sales were associated with new housing in the United States
and about 12% were associated with new commercial
construction in the United States, both of which are cyclical.
The Company's geographic diversity mitigates the effects of
fluctuations in individual new construction markets outside the
United States. Approximately two-thirds of Automotive
Products' sales are dependent on production levels of
medium-sized and heavy trucks and buses, particularly in
Europe, which have been cyclical.
Total Company sales tend to be seasonally higher in the
second and third quarters of the year because a significant
percentage of Air Conditioning Products' sales is attributable to
residential and commercial construction activity, which is
generally higher in the second and third quarters of the year,
and because summer is the peak season for sales of air
conditioning products.
<PAGE>
MANAGEMENT'S REPORT ON FINANCIAL STATEMENTS
The accompanying consolidated balance sheets at December
31, 1994 and 1993, and related consolidated statements of
operations, stockholders' deficit and cash flows for the years
ended December 31, 1994, 1993 and 1992, have been prepared
in conformity with generally accepted accounting principles,
and the Company believes the statements set forth a fair
presentation of financial condition and results of operations.
The Company believes that the accounting systems and related
controls that it maintains are sufficient to provide reasonable
assurance that the financial records are reliable for preparing
financial statements and maintaining accountability for assets.
The concept of reasonable assurance is based on the
recognition that the cost of a system of internal control must be
related to the benefits derived and that the balancing of those
factors requires estimates and judgment. Reporting on the
financial affairs of the Company is the responsibility of its
principal officers, subject to audit by independent auditors,
who are engaged to express an opinion on the Company's
financial statements. The Board of Directors has an Audit
Committee of non-employee Directors which meets
periodically with the Company's financial officers, internal
auditors, and the independent auditors and monitors the
accounting affairs of the Company.
American Standard Companies Inc.
Piscataway, New Jersey
February 16, 1995
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
American Standard Companies Inc.
We have audited the accompanying consolidated balance
sheets of American Standard Companies Inc. (formerly ASI
Holding Corporation) and subsidiaries as of December 31,
1994 and 1993, and the related consolidated statements of
operations, stockholders' deficit, and cash flows for each of the
three years in the period ended December 31, 1994. These
financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally
accepted auditing standards. Those standards require that we
plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of American Standard Companies Inc. and
subsidiaries at December 31, 1994 and 1993, and the
consolidated results of their operations and their cash flows for
each of the three years in the period ended December 31, 1994,
in conformity with generally accepted accounting principles.
Ernst & Young LLP
New York, New York
February 16, 1995
<PAGE>
<TABLE>
CONSOLIDATED STATEMENT OF OPERATIONS
American Standard Companies Inc. (formerly ASI Holding
Corporation)
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in thousands except share
data)
<S> <C> <C> <C>
Sales $4,457,465 $3,830,462 $3,791,929
Cost and expenses:
Cost of sales 3,377,271 2,902,562 2,852,230
Selling and administrative expenses 778,550 692,229 678,742
Other expense 57,381 38,281 24,672
Interest expense 259,437 277,860 288,851
4,472,639 3,910,932 3,844,495
Loss before income taxes
and extraordinary item (15,174) (80,470) (52,566)
Income taxes 62,512 36,165 4,672
Loss before extraordinary item (77,686) (116,635) (57,238)
Extraordinary loss on
retirement of debt (Note 10) (8,735) (91,932) -
Net loss (86,421) (208,567) (57,238)
Preferred dividend - (8,624) (15,707)
Net loss applicable to common shares $ (86,421) $ (217,191) $ (72,945)
Per common share:
Loss before extraordinary item $ (1.29) $ (2.11) $ (1.24)
Extraordinary loss on
retirement of debt (.15) (1.55) -
Net loss $ (1.44) $ (3.66) $ (1.24)
Average number of outstanding
common shares and equivalents 59,933,435 59,313,073 58,636,118
<FN>
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
CONSOLIDATED BALANCE SHEETS
American Standard Companies Inc. (formerly ASI Holding Corporation)
<CAPTION>
1994 1993
At December 31, (Dollars in thousands except share data)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 92,749 $ 53,237
Accounts receivable, less allowance for doubtful
accounts - 1994, $19,569; 1993, $15,666 595,239 507,322
Inventories 323,220 325,819
Future income tax benefits 22,379 24,562
Other current assets 30,956 30,743
Total current assets 1,064,543 941,683
Facilities, at cost net of accumulated depreciation 812,684 820,523
Other assets
Goodwill, net of accumulated
amortization - 1994, $208,973;
1993, $169,879 1,053,042 1,025,774
Debt issuance costs, net
of accumulated amortization -
1994, $23,928; 1993, $9,670 64,095 78,102
Other 161,754 120,997
$3,156,118 $2,987,079
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities
Loans payable to banks $ 70,271 $ 38,036
Current maturities of long-term debt 141,640 105,939
Accounts payable 350,489 307,326
Accrued payrolls 140,297 99,758
Other accrued liabilities 329,174 263,322
Taxes on income 46,822 47,003
Total current liabilities 1,078,693 861,384
Long-term debt 2,152,291 2,191,737
Other long-term liabilities
Reserve for postretirement benefits 437,708 387,038
Deferred tax liabilities 37,650 45,625
Other 247,405 224,108
Total liabilities 3,953,747 3,709,892
Commitments and contingencies
Stockholders' deficit
Preferred stock, 2,000,000 shares authorized;
none issued and outstanding - -
Common stock, $.01 par value,
200,000,000 shares authorized;
60,932,457 shares issued and outstanding
in 1994; 61,424,123 in 1993 609 614
Capital surplus 194,236 188,369
Subscriptions receivable (1,640) (2,588)
ESOP share - (4,331)
Accumulated deficit (836,424) (750,003)
Foreign currency translation effects (151,721) (149,220)
Minimum pension liability adjustment (2,689) (5,654)
Total stockholders' deficit (797,629) (722,813)
$3,156,118 $2,987,079
<FN>
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
CONSOLIDATED STATEMENT OF CASH FLOWS
American Standard Companies Inc. (formerly ASI Holding
Corporation)
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in thousands)
<S> <C> <C> <C>
Cash provided (used) by:
Operating activities:
Loss before extraordinary item $ (77,686) $(116,635) $ (57,238)
Depreciation (including asset
loss provision in 1994) 122,944 106,041 111,643
Amortization of goodwill 31,472 30,807 33,064
Non-cash interest 53,288 65,031 65,527
Non-cash stock compensation 28,479 25,679 23,076
Amortization of debt issuance costs 14,549 11,461 5,983
Loss (gain) on sale of fixed assets 1,259 2,963 (660)
Changes in assets and liabilities:
Accounts receivable (69,991) (48,680) (20,081)
Inventories 13,092 47,321 44,163
Accounts payable and
accrued payrolls 63,413 40,124 (8,308)
Postretirement benefits 21,290 22,687 22,074
Income taxes (3,927) (4,232) (48,974)
Other long-term liabilities 32,795 13,271 3,805
Other, net 25,609 5,003 (428)
Net cash provided by
operating activities 256,586 200,841 173,646
Investing activities:
Purchases of property,
plant and equipment (105,741) (90,474) (87,409)
Investments in affiliated companies (23,971) (7,556) (20,608)
Proceeds from disposals of
property, plant and equipment 14,783 4,003 11,133
Other (2,071) 4,514 10,703
Net cash used by investing activities (117,000) (89,513) (86,181)
Financing activities:
Proceeds from issuance of
long-term debt 336,160 1,405,557 394,159
Repayment of long-term debt,
including redemption premium (439,762) (1,427,989) (490,059)
Net change in revolving
credit facility 30,816 7,000 -
Net change in other short-term debt (10,044) (61,600) 41,675
Common stock repurchases (16,927) (12,194) 10,950)
Other financing costs (2,441) (76,762) (9,897)
Net cash used by financing activities (102,198) (165,988) (75,072)
Effect of exchange rate changes on cash
and cash equivalents 2,124 (3,652) (6,234)
Net increase (decrease) in cash and
cash equivalents 39,512 (58,312) 6,159
Cash and cash equivalents at
beginning of period 53,237 111,549 105,390
Cash and cash equivalents at end of period $ 92,749 $ 53,237 $ 111,549
<FN>
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
CONSOLIDATED STATEMENT OF STOCKHOLDERS' DEFICIT
American Standard Companies Inc. (formerly ASI Holding Corporation)
<CAPTION>
(Dollars in thousands) Foreign
Currency
Common Capital Subscriptions ESOP Accumulated Translation
Stock Surplus Receivable Shares Deficit Effects
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1991 $ 628 $ 203,288 $ (3,969) $ (15,039) $(484,198) $ (50,696)
Net Loss - - - - (57,238) -
Common stock repurchased (9) (13,121) - - - -
Common stock issued 2 3,103 - - - -
Payments on subscriptions - - 653 - - -
ESOP shares allocated
to employees - 14,416 - 5,512 - -
Stock dividend on exchange-
able preferred stock - (15,707) - - - -
Foreign currency translation - - - - - (36,176)
Balance at December 31, 1992 621 191,979 (3,316) (9,527) (541,436) (86,872)
Net Loss - - - - (208,567) -
Common stock repurchased (10) (16,662) - - - -
Common stock issued 3 4,582 - - - -
Payments on subscriptions - - 728 - - -
ESOP shares allocated
to employees - 17,094 - 5,196 - -
Stock dividend on exchange-
able preferred stock - (8,624) - - - -
Foreign currency translation - - - - - (62,348)
Balance at December 31, 1993 614 188,369 (2,588) (4,331) (750,003) (149,220)
Net Loss - - - - (86,421) -
Common stock repurchased (7) (13,244) - - - -
Common stock issued 2 3,974 - - - -
Payments on subscriptions - - 948 - - -
ESOP shares allocated
to employees - 15,137 - 4,331 - -
Foreign currency translation - - - - - (2,501)
Balance at December 31, 1994 $ 609 $ 194,236 $ (1,640) $ - $ (836,424) $(151,721)
<FN>
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS>>
Note 1. Description of the Company
American Standard Companies Inc. (the "Company") is a
Delaware corporation that has as its only significant asset all
the outstanding common stock of American Standard Inc., a
Delaware corporation ("American Standard Inc."). Hereinafter,
"American Standard" or "the Company" will refer to the
Company, or to the Company and American Standard Inc.,
including its subsidiaries, as the context requires. The
Company was formed in 1988 by Kelso & Company, L.P.
("Kelso") to effect the acquisition (the "Acquisition") of
American Standard Inc. For financial statement purposes the
Acquisition has been accounted for under the purchase method.
The Company changed its name from ASI Holding
Corporation to American Standard Companies Inc. in
November 1994. In the first quarter of 1995 the Company
completed an initial public offering of shares of its common
stock (see Note 2).
Note 2. Capital Stock and Initial Public Stock Offering
In the first quarter of 1995 American Standard Companies Inc.
sold 15,112,300 shares of its common stock at $20 per share in
an initial public offering (the "Offering"), which yielded net
proceeds of approximately $282 million (including proceeds
from the exercised portion of the underwriters' over-allotment
option and after deducting underwriting discounts and
expenses) which were used to reduce indebtedness. The
Offering and an amended bank credit agreement were both part
of a major refinancing completed in the first quarter of 1995
(see Note 10). Had the Offering and the amended bank credit
agreement been completed as of January 1, 1994, interest
expense in 1994 would have been reduced by approximately
$50 million and the loss before extraordinary item would have
been approximately $27 million ($.36 per common share).
In December 1994 the Company adopted an Amended
and Restated Stockholders Agreement and in January 1995
adopted a Restated Certificate of Incorporation, Amended
By-laws and a Stockholder Rights Agreement. The Restated
Certificate of Incorporation authorizes the Company to issue
up to 200,000,000 shares of common stock, par value $.01 per
share and 2,000,000 shares of preferred stock, par value $.01
per share of which the Board of Directors designated 900,000
shares as a new series of Junior Participating Cumulative
Preferred Stock. After giving effect to the Offering and to a 2.5
to 1 split of the common stock effected in December 1994,
approximately 76,000,000 shares of common stock were issued
and outstanding. Each outstanding share of common stock has
associated with it one right to purchase a specified amount of
Junior Participating Cumulative Preferred Stock at a stipulated
price in certain circumstances relating to changes in the
ownership of the common stock of the Company. After the
Offering, Kelso ASI Partners, L.P. ("ASI Partners") an affiliate
of Kelso, owned approximately 59% of the outstanding
common stock of the Company and retains the right to elect a
majority of the directors of the Company and thereby to
determine the Company's corporate policies, the persons
constituting its management and the outcome of corporate
actions requiring stockholder approval. The Amended and
Restated Stockholders Agreement provides that Kelso may
designate as nominees for election a majority of the Company's
Board of Directors for so long as ASI Partners continues to
own at least 35% of the outstanding common stock.
Note 3. Accounting Policies
Consolidation - The financial statements include on a
consolidated basis the results of all majority-owned
subsidiaries. All material intercompany transactions are
eliminated. Invest-ments in affiliated companies are
included at cost plus the Company's equity in their net
results.
Foreign Currency Translation - Assets and liabilities of foreign
operations where the functional currency is other than the U.S.
dollar are translated at year-end rates of exchange, and the
income statements are translated at the average rates of
exchange for the period. Gains or losses resulting from
translating foreign currency financial statements are
accumulated in a separate component of stockholders' equity
until the entity is sold or substantially liquidated.
Gains or losses resulting from foreign currency
transactions (transactions denominated in a currency other than
the entity's functional currency) are included in net income
except for those resulting from transactions which hedge a net
foreign currency exposure or long-term intercompany
transactions of an investment nature. For operations in
<PAGE>
countries that have hyper-inflationary economies, net income
includes gains and losses from translating assets and liabilities
at year-end rates of exchange, except for inventories and
facilities, which are translated at historical rates.
The losses from foreign currency transactions and
translation losses in countries with hyper-inflationary
economies reflected in expense were $9.9 million in 1994,
$21.9 million in 1993, and $19.3 million in 1992.
The allocation of purchase costs increased the net asset
exposure of foreign operations; however, since 1988 the effects
of exchange volatility have been ameliorated by the fact that a
portion of the Company's borrowings has been denominated in
foreign currencies.
Revenue Recognition - Sales are recorded when shipment to a
customer occurs.
Cash Equivalents - Cash equivalents include all highly liquid
investments with a maturity of three months or less when
purchased.
Inventories - Inventory costs are determined by the use of the
last-in, first-out (LIFO) method on a worldwide basis, and
inventories are stated at the lower of such cost or realizable
value.
Facilities - The Company capitalizes costs, including interest
during construction, of fixed asset additions, improvements,
and betterments that add to productive capacity or extend the
asset life. Maintenance and repair expenditures are charged
against income. Significant investment grants are amortized
into income over the period of benefit.
Goodwill - Goodwill is being amortized over 40 years. The
carrying value of goodwill for each business is reviewed if the
facts and circumstances, such as significant declines in sales,
earnings or cash flows or material adverse changes in the
business climate, suggest that it may be impaired. If any
impairment is indicated as a result of such reviews, the
Company would measure it using techniques such as
comparing the undiscounted cash flow of the business to its
book value including goodwill or by obtaining appraisals of the
related business. To date no indications of impairment have
arisen as to any material portion of goodwill.
Debt Issuance Costs - The costs related to the issuance of debt
are capitalized and amortized to interest expense using the
effective interest method over the lives of the related debt.
Warranties - The Company provides for estimated warranty
costs at the time of sale. Warranty obligations beyond one year
are included in other long-term liabilities. Revenues from the
sales of extended warranty contracts are deferred and
amortized on a straight-line basis over the terms of the
contracts.
Postretirement Benefits - Postretirement benefits are provided
for substantially all employees of the Company, both in the
United States and abroad. In the United States the Company
also provides various postretirement health care and life
insurance benefits for certain of its employees. Such benefits
are accounted for on an accrual basis using actuarial
assumptions, where appropriate.
Depreciation - Depreciation and amortization are computed on
the straight-line method based on the estimated useful life of
the asset or asset group.
Research and Development Expenses - Research and
development costs are expensed as incurred except for costs
incurred (after technological feasibility is established) for
computer software products expected to be sold. The Company
expended approximately $118 million in 1994, $110 million in
1993, and $110 million in 1992 for research activities and
product development and for product engineering.
Expenditures for research and product development only were
$39 million, $43 million, and $40 million in the respective
years. Computer software product development costs
capitalized amounted to $2 million in each of 1994 and 1993.
Income Taxes - The Company recognizes deferred tax assets
for the tax effects of items that will be deducted for tax
purposes in later years together with the tax effects of income
items included in current reporting for tax purposes but in later
years for financial statement purposes along with the effects of
certain tax attributes such as net operating losses.
The Company provides for United States income taxes
and foreign withholding taxes on foreign earnings expected to
be repatriated. Deferred tax liabilities are provided on the
excess of the financial statement basis over the tax basis of
<PAGE>
certain assets, primarily for inventories and fixed assets,
including fair value adjustments resulting from purchase
accounting in connection with the Acquisition; fixed assets due
to accelerated depreciation deductions for tax purposes; and
non-permanent investments in certain foreign subsidiaries.
Earnings Per Share - Earnings per share have been computed
using the weighted average number of common shares
outstanding. All share amounts and earnings per share data
have been adjusted to reflect the 2.5 to 1 stock split effected in
December 1994.
Financial Instruments with Off-Balance-Sheet Risk - The
Company from time to time enters into agreements in the
management of foreign currency and interest rate exposures.
Gains and losses from underlying rate changes are included in
income unless the contract hedges a net investment in a foreign
entity, a firm commitment, or related debt instrument in which
case gains and losses are deferred as a component of foreign
currency translation effects in stockholders' equity or included
as a component of the transaction.
Note 4. Stock Incentive Plan
In January 1995 the Company established the Stock Incentive
Plan (the "Stock Plan") under which awards may be granted to
officers and other key executives and employees in the form of
stock options, stock appreciation rights, restricted stock, or
restricted units. The maximum number of shares or units that
may be issued under the Stock Plan is 10% of the number of
shares of common stock issued and outstanding as of the
completion of the Offering in the first quarter of 1995, or
approximately 7,600,000 shares. Stock options to purchase
4,998,000 shares at the initial public offering price of $20 per
share were awarded to approximately 900 employees in the
first quarter of 1995. The awards vest ratably over three years
and are exercisable over a period of ten years.
Note 5. Other Expense
Other income (expense) was as follows:
<TABLE>
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Interest income $ 8.2 $ 8.5 $ 8.7
Royalties 3.5 2.6 3.8
Equity in net income (loss)
of affiliated companies 4.0 (0.1) 4.9
Minority interest (13.3) (14.0) (9.8)
Accretion expense (26.1) (30.5) (29.8)
Other, net (a) (33.7) (4.8) (2.5)
$(57.4) $(38.3) $(24.7)
<FN>
(a) The 1994 amount includes a one-time special charge of $20
million incurred in connection with the amendment of certain
agreements in anticipation of the initial public offering.
</FN>
</TABLE>
Note 6. Postretirement Benefits
The Company sponsors postretirement benefit plans covering
substantially all employees, including an Employee Stock
Ownership Plan (the "ESOP") for the Company's U.S. salaried
employees and certain U.S. hourly employees. In 1988 in
conjunction with the Acquisition the ESOP purchased
12,500,000 shares of common stock of the Company. The
ESOP is an individual account, defined contribution plan.
Through December 31, 1994, the valuation of the ESOP shares
has been determined by independent appraisals. By December
31, 1994, all of the common stock initially acquired by the
ESOP was allocated to the accounts of eligible employees
(primarily through basic allocations of 3% of covered
compensation and a matching Company contribution of up to
6% of covered compensation invested in the Company's 401(k)
savings plan by employees). The Company intends to fund the
ESOP in future years through contributions of cash or shares of
the Company's common stock.
Benefits under defined benefit pension plans on a
worldwide basis are generally based on years of service and
employees' compensation during the last years of employment.
In the United States the Company also provides various
postretirement health care and life insurance benefits for
certain of its employees. Funding decisions are based upon the
tax and statutory considerations in each country. Accretion
expense is the implicit interest cost associated with amounts
accrued and not funded and is included in "other expense". At
December 31, 1994, funded plan assets related to pensions
were held primarily in fixed income and equity funds.
Postretirement health and life insurance benefits are not
prefunded.
<PAGE>
The Company's postretirement plans' funded status and
amounts recognized in the balance sheet at December 31, 1994
and 1993 were:
<TABLE>
<CAPTION>
1994 1994 1994 1993 1993 1993
(Dollars in millions) Assets in Accumulated Assets in Accumulated
Excess of Benefit Health Excess of Benefit Health
Accumulated Obligations and Life Accumulated Obligations and Life
Benefit in Excess Insurance Benefit in Excess Insurance
Obligations of Assets Benefits Obligations of Assets Benefits
<S> <C> <C> <C> <C> <C> <C>
Actuarial present value of
benefit obligations:
Vested $106.8 $528.9 - $105.2 $511.1 -
Non-vested 5.1 29.1 - 4.5 30.4 -
Accumulated benefit obligations 111.9 558.0 - 109.7 541.5 -
Additional amounts related to
projected pay increases 15.8 34.1 - 12.1 46.0 -
Total projected benefit obligations 127.7 592.1 $160.5 121.8 587.5 $175.4
Assets and book reserves relating
to such benefits:
Market value of funded assets 160.5 271.4 - 166.9 303.8 -
Reserve (asset) for post-
retirement benefits net of
recognized overfunding (37.6) 309.8 158.7 (36.8) 257.7 154.9
Additional minimum liability - 15.5 - - 19.0 -
122.9 596.7 158.7 130.1 580.5 154.9
Assets and book reserves in
excess of (less than)
projected benefit obligations $ (4.8) $ 4.6 $ (1.8) $ 8.3 $ (7.0) $(20.5)
Consisting of:
Unrecognized prior services
benefit (cost) $ (8.0) $ .7 $ 10.7 $ (6.6) $ 3.4 $ 10.3
Unrecognized net gain (loss)
from actuarial experience 3.2 1.2 (12.5) 14.9 (16.0) (30.8)
Pension liability adjustment
to stockholers' deficit - 2.7 - - 5.6 -
$ (4.8) $ 4.6 $ (1.8) $ 8.3 $ (7.0) $(20.5)
</TABLE>
At December 31, 1994, the projected benefit obligation
related to health and life insurance benefits for active
employees was $58.7 million and for retirees was $101.8
million.
For certain plans, the additional minimum liability
recorded by the Company as part of its reserve for
postretirement benefits was $15.5 million at December 31,
1994 ($19 million at December 31, 1993). The additional
minimum liability is the excess of the accumulated benefit
obligation over plan assets and accumulated benefit provisions.
In connection with providing for the additional minimum
liability, an intangible asset was recorded, to the extent of
unrecognized prior service costs, which amounted to $12.8
million at December 31, 1994 ($13.4 million at December 31,
1993). The net charge in stockholders' deficit was $2.7 million
at December 31, 1994 (reduced from $5.6 million at December
31, 1993).
The projected benefit obligation for postretirement
benefits was determined using the following assumptions:
<TABLE>
<CAPTION>
1994 1994 1993 1993
Domestic Foreign Domestic Foreign
<S> <C> <C> <C> <C>
Discount rate 8.25% 5.75%-9.25% 7.25% 4.50%-8.50%
Long-term rate of inflation 2.80% 1.75%-5.25% 2.80% .50%-5.00%
Merit and promotional increase 1.70% 1.70% 1.70% 1.50%
Rate of return on plan assets 8.50% 7.25%-8.35% 8.75% 6.25%-9.50%
</TABLE>
<PAGE>
The weighted-average annual assumed rate of increase
in the health care cost trend rate is 9% for 1995 and is assumed
to decrease gradually to 5% for 1999 and remain at that level
thereafter. The health care cost trend rate assumption has a
significant effect on the amounts reported. For example, a
change in the assumed rate of one percentage point for each
future year would change the accumulated postretirement
benefit obligation as of December 31, 1994, by $11 million
and the annual postretirement cost by $1.4 million.
Postretirement cost had the following components:
<TABLE>
<CAPTION>
1994 1994 1993 1993 1992 1992
Year Ended December 31,
(Dollars in millions) Health & Health & Health &
Pension Life Ins. Pension Life Ins. Pension Life Ins.
Benefits Benefits Benefits Benefits Benefits Benefits
<S> <C> <C> <C> <C> <C> <C>
Service cost-benefits earned
during the period $ 23.6 $ 3.8 $ 20.1 $ 3.4 $ 21.7 $ 3.0
Interest cost on the projected
benefit obligation 47.0 12.3 50.6 14.1 50.4 13.7
Less assumed return on plan assets:
Actual loss (return) on plan assets 13.0 - (78.8) - (35.7) -
Excess (shortfall) deferred (49.5) - 42.9 - (2.6) -
(36.5) - (35.9) - (38.3) -
Other, including amortization
of prior service cost 1.8 .2 2.7 .3 1.6 -
Defined benefit plan cost $ 35.9 $ 16.3 $ 37.5 $ 17.8 $ 35.4 $ 16.7
Accretion expense reclassified
to "other expense" $ 13.8 $ 12.3 $ 16.4 $ 14.1 $ 16.1 $ 13.7
</TABLE>
Total postretirement costs were:
<TABLE>
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Pension benefits $ 35.9 $ 37.5 $ 35.4
Health and life
insurance benefits 16.3 17.8 16.7
Defined benefit plan cost 52.2 55.3 52.1
Defined contribution
plan cost (a) 24.7 22.4 20.4
Total postretirement cost,
including accretion expense $ 76.9 $ 77.7 $ 72.5
<FN>
(a) Principally ESOP cost.
</FN>
</TABLE>
Note 7. Income Taxes
The Company's loss before income taxes and extraordinary
item, and the applicable provision (benefit) for income taxes
were:
<TABLE>
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Income (loss) before income taxes
and extraordinary item:
Domestic $(157.0) $(168.4) $(170.1)
Foreign 141.8 87.9 117.5
Pre-tax loss (15.2) (80.5) (52.6)
Provision (benefit) for
income taxes:
Current:
Domestic 10.5 12.4 5.1
Foreign 57.7 43.0 63.0
68.2 55.4 68.1
Deferred:
Domestic .8 1.1 (35.8)
Foreign (6.5) (20.3) (27.6)
(5.7) (19.2) (63.4)
Total provision $ 62.5 $ 36.2 $ 4.7
</TABLE>
<PAGE>
A reconciliation between the actual income tax expense
provided and the income tax benefit computed by applying the
statutory federal income tax rate of 35% in 1994 and 1993 and
34% in 1992 to the loss before income taxes and extraordinary
item is as follows:
<TABLE>
<CAPTION>
1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Tax benefit at statutory rate $ (5.3) $(28.2) $(17.9)
Nondeductible goodwill
charged to operations 10.0 10.4 10.5
Nondeductible ESOP
allocations 6.8 6.1 4.9
Rate differences and
withholding taxes related
to foreign operations 47.1 18.7 1.4
Foreign exchange (4.3) (7.0) (6.3)
State tax benefits (5.3) (5.5) (3.3)
Other, net (7.9) 8.7 5.5
Increase in valuation allowance 21.4 33.0 9.9
Total provision $ 62.5 $ 36.2 $ 4.7
</TABLE>
In addition to the 1994 and 1993 valuation allowance
increases of $21.4 million and $33.0 million respectively,
shown above, valuation allowances of $3.2 million and $32.1
million, respectively, were also provided for the tax benefits
related to the extraordinary losses on retirement of debt (see
Note 10). The 1993 valuation allowance and certain
withholding taxes have been adjusted to reflect the actual 1993
tax returns as filed.
The following table details the gross deferred tax
liabilities and assets and the related valuation allowances:
<TABLE>
<CAPTION>
1994 1993
At December 31, (Dollars in millions)
<S> <C> <C>
Deferred tax liabilities:
Facilities (accelerated depreciation,
capitalized interest and purchase
accounting differences) $ 142.3 $ 141.1
Inventory (LIFO and purchase
accounting differences) 15.4 18.5
Employee benefits .6 11.0
Foreign investments 50.1 50.1
Other 31.1 26.2
239.5 246.9
Deferred tax assets:
Employee benefits (pensions and
other postretirement benefits) 128.2 110.7
Warranties 35.7 37.4
Alternative minimum tax 19.4 19.4
Foreign tax credits and
net operating losses 44.0 47.8
Reserves 69.0 58.7
Other 46.7 46.0
Valuation allowances (118.8) (94.2)
224.2 225.8
Net deferred tax liabilities $ 15.3 $ 21.1
</TABLE>
Deferred tax assets related to foreign tax credits, net
operating loss carryforwards and future tax deductions have
been reduced by a valuation allowance since realization is
dependent in part on the generation of future foreign source
income as well as on income in the legal entity which gave rise
to tax losses. Other deferred tax assets have not been reduced
by valuation allowances because of carrybacks and existing
deferred tax credits which reverse in the carryforward period.
The foreign tax credits and net operating losses are available
for utilization in future years. In some tax jurisdictions the
carryforward period is limited to as little as five years; in
others it is unlimited.
As a result of the Acquisition (see Note 1) and the
allocation of purchase accounting (principally goodwill) to
foreign subsidiaries, the book basis in the net assets of the
foreign subsidiaries exceeds the related U.S. tax basis in the
subsidiaries' stock. Such investments are considered permanent
in duration, and accordingly no deferred taxes have been
<PAGE>
provided on such differences, which are significant. It is
impracticable because of the complex legal structure of the
Company and the numerous tax jurisdictions in which the
Company operates to determine such deferred taxes.
Cash taxes paid were $70 million, $41 million, and $56
million in the years 1994, 1993 and 1992, respectively.
In connection with examinations of the tax returns of
the Company's German subsidiaries for the years 1984 through
1990, the German tax authorities have raised questions
regarding the treatment of certain significant matters. In prior
years the Company paid approximately $20 million of a
disputed German income tax. A suit is pending to obtain a
refund of this tax. The Company anticipates that the German
tax authorities may propose other adjustments resulting in
additional taxes of approximately $120 million (at December
31, 1994, exchange rates) (principally relating to the 1988 to
1990 period), plus interest, for the tax return years under audit.
In addition, significant transactions similar to those which gave
rise to such possible adjustments occurred in years subsequent
to 1990. If the tax authorities should propose adjustments for
the 1988-1990 period, they might, after future tax audits,
propose tax adjustments that are comparable for years 1991 to
1993. The Company, on the basis of the opinion of legal
counsel, believes the tax returns are substantially correct as
filed and any such adjustments would be inappropriate and
intends to vigorously contest any adjustments which have been
or may be assessed. Accordingly, the Company had not
recorded any loss contingency at December 31, 1994, with
respect to such matters.
Under German tax law, if an assessment is made for the
years presently under audit, the authorities may demand
immediate payment of the amount assessed prior to final
resolution of the issues. The Company believes, on the basis of
opinion of legal counsel, that it is highly likely that a
suspension of payment pending final resolution would be
obtained. If immediate payment were required, the Company
expects that it would be able to make such payment from
available sources of liquidity or credit support but that future
cash flows and therefore subsequent results of operations for
any particular quarterly or annual period could be adversely
affected.
As a result of recent changes in German tax legislation,
the Company's tax provision in Germany was higher in 1994
and will be higher in the future. As a result of this German tax
legislation and the related additional tax provisions, the
Company believes its exposure to the issues under the audit
referred to above will be reduced for 1994 and future years.
American Standard Inc. makes substantial
annual interest payments to its Netherlands subsidiary. These
interest payments have been exempt from U.S. withholding tax
under an income tax treaty between the United States and the
Netherlands. A provision in a new treaty raises the possibility
that such payments may become subject to 15% U.S.
withholding tax. The Company has filed a Competent
Authority request with the Internal Revenue Service seeking a
determination that no withholding tax will be imposed. The
Company believes, based upon a recent IRS News Release that
authorizes the requested relief, that the Competent Authority
request will be resolved favorably. If the Competent Authority
request is not resolved favorably, additional withholding taxes
of approximately $12 million per year could be imposed on the
Company commencing in 1996. In such case, the Company
will consider alternatives designed to mitigate such increased
withholding taxes; however, there is no assurance that such
alternatives will be found.
<PAGE>
Note 8. Inventories
The components of inventories are as follows:
<TABLE>
<CAPTION>
1994 1993
At December 31, (Dollars in millions)
<S> <C> <C>
Finished products $160.2 $169.0
Products in process 82.5 78.0
Raw materials 80.5 78.8
Inventories at cost $323.2 $325.8
</TABLE>
The carrying cost of inventories approximates current
cost as a result of purchase accounting adjustments which are
offset by LIFO reserves.
Note 9. Facilities
The components of facilities, at cost, are as follows:
<TABLE>
<CAPTION>
1994 1993
At December 31, (Dollars in millions)
<S> <C> <C>
Land $ 65.8 $ 66.2
Buildings 325.7 314.6
Machinery and equipment 776.2 739.9
Improvements in progress 75.2 54.4
Gross facilities 1,242.9 1,175.1
Less: accumulated depreciation 430.2 354.6
Net facilities $ 812.7 $ 820.5
</TABLE>
<PAGE>
Note 10. Debt
The 1995 Refinancing - In the first quarter of 1995 the
Company completed a major refinancing (the "1995
Refinancing") consisting of: (i) the October 1994 amendment
to the Company's 1993 credit agreement ("1993 Credit
Agreement") which provided an additional term loan of $325
million (the "October Borrowing"), the proceeds of which were
used to redeem $316.8 million in aggregate principal amount
of the Company's 14 1/4% Subordinated Discount Debentures
Due 2003 and 12 3/4% Junior Subordinated Debentures Due
2003 and to pay redemption premiums of $4.4 million and debt
issuance and other costs in November 1994; (ii) the Offering of
common stock (see Note 2), the net proceeds of which, totaling
$282 million, were used to repay indebtedness; and (iii) the
February 1995 amendment and restatement of the 1993 Credit
Agreement (as so amended and restated, the "1995 Credit
Agreement"), which provided a secured multi-currency,
multi-borrower credit facility aggregating $1.0 billion, the
proceeds of which were used to replace outstanding
borrowings under the 1993 Credit Agreement.
The 1995 Credit Agreement provides to American
Standard Inc. and certain subsidiaries (the "Borrowers") an
aggregate, secured facility of $1.0 billion available to all
Borrowers as follows: (a) a $100 million U.S. Dollar Term
Loan Facility (the "Term Loan Facility") which expires in
2000; (b) a $250 million U.S. Dollar Revolving Credit Facility
and a $300 million Multi-currency Revolving Credit Facility
(the "Revolving Facilities") which expire in 2002; and (c) a
$350 million Multi-currency Periodic Access Credit Facility
(the "Periodic Access Facility") which expires in 2002.
The 1995 Credit Agreement provides lower interest
costs, increased borrowing capacity, less restrictive covenants
and lower annual scheduled debt maturities through 2001.
Each of the outstanding revolving loans is due at the end of
each interest period (a maximum of six months). The Company
may, however, concurrently reborrow the outstanding
obligations subject to compliance with applicable conditions of
the 1995 Credit Agreement.
After giving effect to the Offering and the 1995 Credit
Agreement, the Company's total indebtedness (including
short-term debt) was approximately $2,129 million, compared
to $2,364 million at December 31, 1994, and the amounts of
long-term debt maturing from 1995 through 1999 were:
1995-$40 million; 1996-$64 million; 1997-$70 million;
1998-$81 million; and 1999-$231 million.
Borrowings under the Term Loan Facility bear interest
at the London interbank offered rate ("LIBOR") plus 1.5% and
borrowings under the Periodic Access Facility bear interest at
LIBOR plus 1.75%. The Company pays a commitment fee of
0.375% per annum on the unused portion of the Revolving
Facilities and a fee of 1.75% plus issuance fees for letters of
credit. These rates are subject to reduction in the event the
Company attains certain financial ratios.
As a result of the redemption of debt in 1994 with the
net proceeds of the October Borrowing and in 1993 as a result
of a 1993 refinancing, 1994 and 1993 included extraordinary
charges of $9 million and $92 million, respectively, related to
the debt retired (including call premiums, the write-off of
deferred debt issuance costs, and in 1993 the loss on
cancellation of foreign currency swap contracts) on which
there was no tax benefit (see Note 7). In addition, the first
quarter of 1995 will include an extraordinary charge of $30
million in connection with the debt repayment resulting from
the 1995 Refinancing.
Short-term - At December 31, 1994, there were $38 million of
short-term borrowings outstanding and $52 million of letters of
credit outstanding under the 1993 Credit Agreement. Average
borrowings under the revolving credit facilities available under
bank credit agreements for 1994, 1993, and 1992 were $73
million, $39 million, and $14 million, respectively.
The Revolving Facilities under the 1995 Credit
Agreement provide for aggregate borrowings of up to $550
million for general corporate purposes, of which up to $200
million may be used for the issuance of letters of credit and
$40 million of which is available for same-day short-term
borrowings (Swingline Loans). Loans under the Revolving
Facilities bear interest at the prime rate plus .75% or LIBOR
plus 1.75% (subject to reduction in the event the Company
attains certain financial ratios). After completing the 1995
Refinancing, there were $293 million of borrowings
outstanding under the Revolving Facilities and $52 million of
letters of credit. Availability under the Revolving Facilities
was $205 million. The Revolving Facilities are short-term
borrowings by their terms under the 1995 Credit Agreement,
and since approximately $218 million of long-term debt under
the 1993 Credit Agreement was replaced with loans under the
Revolving Facilities, a significantly larger amount of debt will
<PAGE>
be classified as short-term subsequent to the 1995 Refinancing.
Other short-term borrowings are available outside the
United States under informal credit facilities and are typically a
result of overdrafts. At December 31, 1994, the Company had
$32 million of such foreign short-term debt outstanding at an
average interest rate of 11.2% per annum. The Company also
had an additional $50 million of unused foreign facilities.
These facilities may be withdrawn by the banks at any time.
Average short-term borrowings for 1994, 1993 and
1992 were $119 million, $118 million and $104 million,
respectively, at weighted average interest rates of 9.40%,
8.97%, and 11.90%, respectively. Total short-term borrowings
outstanding at December 31, 1994, 1993 and 1992 were $70
million, $38 million, and $99 million, respectively, at weighted
average interest rates of 10.7%, 10.3%, and 12.5%,
respectively.
Long-term - Long-term debt was as follows:
<TABLE>
<CAPTION>
1994 1993
At December 31, (Dollars in millions)
<S> <C> <C>
1993 credit agreement $ 940.0 $ 689.9
9 1/4% sinking fund debentures, due in
installments from 1997 to 2016 150.0 150.0
10 7/8% senior notes due 1999 150.0 150.0
11 3/8% senior debentures due 2004 250.0 250.0
9 7/8% senior subordinated notes due 2001 200.0 200.0
10 1/2% senior subordinated discount
debentures (net of unamortized
discount of $221.4 million in 1994;
$272.9 million in 1993) due in
installments from 2003 to 2005 529.3 477.8
14 1/4% subordinated discount debentures - 175.0
12 3/4% junior subordinated debentures
(Note 11) - 141.8
Other long-term debt 74.6 63.1
2,293.9 2,297.6
Less current maturities 141.6 105.9
$2,152.3 $2,191.7
</TABLE>
Interest costs capitalized as part of the cost of
constructing facilities for the years ended December 31, 1994,
1993, and 1992, were $2.9 million, $2.7 million, and $3.1
million, respectively. Cash interest paid for those same years
on all outstanding indebtedness amounted to $186 million,
$198 million, and $210 million, respectively.
The 1993 Credit Agreement loans and effective
weighted average interest rates in effect at December 31, were
as follows:
<TABLE>
<CAPTION>
1994 1993
U.S. Dollar Equivalent (Dollars in millions)
<S> <C> <C>
Periodic access loans:
British sterling loans at 8.59%
in 1994; 7.85% in 1993 $101.3 $ 95.8
Deutschemark loans at 7.56%
in 1994; 9.06% in 1993 50.9 49.4
Canadian dollar loans at 8.44%
in 1994; 6.5% in 1993 7.5 20.2
French franc loans at 8.00%
in 1994; 9.17% in 1993 14.9 18.5
Italian lira loans at 12.19% in 1993 - 8.7
Total periodic access loans 174.6 192.6
Term loans:
Tranche A U.S. dollar loans at 9.25%
in 1994; 6.5% in 1993 222.2 225.0
Tranche B Deutschemark loans
at 7.31% in 1994; 7.88% in 1993 136.0 172.3
Tranche C U.S. dollar loans at 8.40%
in 1994; 6.01% in 1993 82.2 100.0
Tranche D U.S. dollar loans at
8.94% in 1994 325.0 -
Total term loans 765.4 497.3
Total 1993 credit agreement
long-term loans 940.0 689.9
Revolver loans at 9.7% in 1994;
7.5% in 1993 38.0 7.0
Total 1993 credit agreement loans $978.0 $696.9
</TABLE>
<PAGE>
The 9 7/8% Senior Subordinated Notes may be
redeemed at the Company's option, in whole or in part, on and
after June 1, 1998, at redemption prices declining from
102.82% in 1998 to 100% on June 1, 2000, and thereafter. The
10 1/2% Senior Subordinated Discount Debentures may be
redeemed at the Company's option, in whole or in part, on and
after June 1, 1998, at redemption prices declining from
104.66% in 1998 to 100% on June 1, 2002, and thereafter. The
payment of the principal and interest on the 9 7/8% Senior
Subordinated Notes and on the 10 1/2% Senior Subordinated
Discount Debentures (together the "Senior Subordinated
Debt") is subordinated in right of payment to the payment
when due of all Senior Debt (as defined in the related
indenture) of the Company, including all indebtedness under
the credit agreements, the 9 1/4% Sinking Fund Debentures,
the 10 7/8% Senior Notes, and the 11 3/8% Senior Debentures
(the said notes and debentures together the "Senior
Securities").
The 9 1/4% Sinking Fund Debentures are redeemable
at the Company's option, in whole or in part, at redemption
prices declining from 105.55% in 1994 to 100% in 2006 and
thereafter. The 10 7/8% Senior Notes are not redeemable by
the Company. The 11 3/8% Senior Debentures are redeemable
at the option of the Company, in whole or in part, on or after
May 15, 1997, at redemption prices declining from 105.69% in
1997 to 100% on May 15, 2002, and thereafter.
Obligations under the 1995 Credit Agreement are
guaranteed by American Standard Inc. and significant domestic
subsidiaries of American Standard Inc. (with foreign
borrowings also guaranteed by certain foreign subsidiaries) and
are secured by U.S., Canadian, and U.K. properties, plant and
equipment; by liens on receivables, inventories, intellectual
property and other intangibles; and by a pledge of the stock of
American Standard Inc. and nearly all shares of subsidiary
stock. In addition, the obligations of American Standard Inc.
under the Senior Securities are secured, to the extent required
by the related indentures, by mortgages on the principal U.S.
properties of American Standard Inc. equally and ratably with
the indebtedness under the 1995 Credit Agreement.
The 1995 Credit Agreement contains various covenants
that limit, among other things, indebtedness, dividends on and
redemption of capital stock of the Company, purchases and
redemptions of other indebtedness of the Company (including
its outstanding debentures and notes), rental expense, liens,
capital expenditures, investments or acquisitions, disposal of
assets, the use of proceeds from asset sales and certain other
business activities and require the Company to meet certain
financial tests. In order to maintain compliance with the
covenants and restrictions contained in previous bank credit
agreements, the Company from time to time had to obtain
waivers and amendments. The Company believes it is currently
in compliance with the covenants of the 1995 Credit
Agreement but may have to obtain similar waivers or
amendments in the future.
The indentures related to the Company's debentures and
notes contain various covenants which, among other things,
limit debt and preferred stock of the Company and its
subsidiaries, dividends on and redemption of capital stock of
the Company and its subsidiaries, redemption of certain
subordinated obligations of the Company, the use of proceeds
from asset sales and certain other business activities.
Note 11. Exchange of Exchangeable Preferred Stock
On June 30, 1993, in exchange for all of the Company's
outstanding shares of 12 3/4% Exchangeable Preferred Stock,
the Company issued $141.8 million of 12 3/4% Junior
Subordinated Debentures Due 2003 to the holder of the
Exchangeable Preferred Stock. Those debentures were sold by
the holder in a registered public offering in August 1993. The
Company received none of the proceeds of this offering. In
November 1994 the debentures were redeemed with part of the
proceeds of the October Borrowing.
<PAGE>
Note 12. Fair Values of Financial Instruments
The carrying amounts and estimated fair values of selected
financial instruments at December 31, 1994 are as follows:
<TABLE>
<CAPTION>
(Dollars in millions) Carrying Fair
Amount Value
<S> <C> <C>
1993 credit agreement loans $940 $940
10 7/8% senior notes 150 152
11 3/8% senior debentures 250 257
9 7/8% senior subordinated notes 200 194
10 1/2% senior subordinated
discount debentures 529 480
9 1/4% sinking fund debentures 150 136
Other loans 75 75
</TABLE>
The fair values presented above are estimates as of
December 31, 1994 and are not necessarily indicative of
amounts the Company could realize or settle currently or
indicative of the intent or ability of the Company to dispose of
or liquidate such instruments.
The following methods and assumptions were used by
the Company in estimating the fair value of financial
instru-ments held:
Long- and short-term debt - The fair values of the Company's
1993 Credit Agreement loans are estimated using indicative
market quotes obtained from a major bank. The fair values of
senior notes, senior debentures, senior subordinated notes,
senior subordinated discount debentures and sinking fund
debentures are based on indicative market quotes obtained
from a major securities dealer. The fair values of other loans
approximate their carrying value.
Cash and cash equivalents - The carrying amount reported in
the balance sheet for cash and cash equivalents approximates
its fair value.
Note 13. Related Party Transactions
Since 1988 the Company has paid Kelso an annual fee of $2.75
million for providing management consulting and advisory
services. In December 1994 the Company paid Kelso a
one-time fee of $20 million in connection with the amendment
of certain agreements in anticipation of the Company's initial
public offering including an amendment eliminating future
payments of the $2.75 million annual fee, but providing for the
continuation of such services. In June 1993 American Standard
Inc. issued 1,000 shares of a new, non-voting Series A
Preferred Stock, par value $.01 per share, for $10,000 to an
affiliate of Kelso & Company.
Note 14. Commitments and Contingencies
Future minimum rental commitments under the terms of all
noncancellable operating leases in effect at December 31,
1994, were: 1995 - $32 million; 1996 - $29 million; 1997 - $22
million; 1998 - $16 million; 1999 - $12 million; and thereafter
- $38 million. Net rental expenses for operating leases were
$45 million, $34 million, and $32 million for the years ended
December 31, 1994, 1993, and 1992, respectively.
<PAGE>
The Company and certain of its subsidiaries are parties
to a number of pending legal and tax proceedings. The
Company is also subject to federal, state and local
environmental laws and regulations and is involved in
environmental proceedings concerning the investigation and
remediation of numerous sites. In those instances where it is
probable that the Company will incur costs as a result of such
proceedings which can be reasonably determined, the
Company has recorded a liability. The Company believes that
these legal, tax and environmental proceedings will not have a
material adverse effect on its consolidated financial position,
cash flows or results of operations.
The tax returns of the Company's German subsidiaries
are currently under examination by the German tax authorities
(see Note 7).
Note 15. Segment Data
Sales and operating income by geographic location for the
years ended December 31, 1994, 1993, and 1992, are shown in
the following tables. Identifiable assets are also shown as at
years ended 1994, 1993, and 1992.
<TABLE>
<CAPTION>
Segment Data 1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Sales
Air Conditioning Products $2,480 $2,100 $1,892
Plumbing Products 1,218 1,167 1,170
Automotive Products 759 563 730
Total sales $4,457 $3,830 $3,792
Geographic distribution:
United States $2,465 $2,096 $1,877
Europe 1,572 1,315 1,588
Other 550 483 392
Eliminations (130) (64) (65)
Total sales $4,457 $3,830 $3,792
Operating Income
Air Conditioning Products $ 182 $ 133 $ 104
Plumbing Products 111 108 108
Automotive Products 62 41 88
Total operating income (a) $ 355 $ 282 $ 300
Geographic distribution:
United States $ 168 $ 125 $ 96
Europe 144 118 180
Other 43 39 24
Total operating income 355 282 300
Financing and corporate items (b) 370 363 352
Loss before income taxes and extraordinary item (15) (81) (52)
Income taxes 62 36 5
Loss before extraordinary item $ (77) $ (117) $ (57)
<FN>
(a) Includes special charges of $40 million in 1994
applicable to consolidation of production facilities, employee
severance, other cost reduction actions, and a
provision for loss on the early disposition of certain assets; and
$8 million in 1993 related to plant shutdowns and other cost
reduction actions.
(b) Includes a one-time special charge of $20 million in
1994 incurred in connection with the amendment of certain
agreements in anticipation of the Company's
initial public stock offering.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Segment Data 1994 1993 1992
Year Ended December 31, (Dollars in millions)
<S> <C> <C> <C>
Assets
Air Conditioning Products $1,223 $1,167 $1,156
Plumbing Products 957 960 1,002
Automotive Products 755 652 722
Total identifiable assets $2,935 $2,779 $2,880
Geographic distribution:
United States $1,025 $1,013 $1,016
Europe 1,343 1,196 1,370
Other 567 570 494
Total identifiable assets 2,935 2,779 2,880
Prepaid charges 64 78 51
Future income tax benefits 22 25 33
Cash and cash equivalents 93 53 113
Corporate assets 42 52 49
Total assets $3,156 $2,987 $3,126
Capital expenditures:
Air Conditioning Products $ 45 $ 38 $ 33
Plumbing Products 55 46 48
Automotive Products 30 14 27
Total capital expenditures $ 130 $ 98 $ 108
Depreciation and amortization:
Air Conditioning Products $ 51 $ 53 $ 55
Plumbing Products 64 49 49
Automotive Products 39 35 37
Total depreciation and amortization $ 154 $ 137 $ 141
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Quarterly Data (Unaudited) 1994
(Dollars in millions, except per share data) First Second(a) Third Fourth(b)
<S> <C> <C> <C> <C>
Sales $ 989.6 $ 1,130.5 $ 1,188.8 $ 1,148.6
Cost of sales 746.3 857.3 883.5 890.2
Income (loss) before income taxes
and extraordinary item 3.4 3.5 26.2 (48.3)
Income taxes 16.7 14.9 15.1 15.8
Income (loss) before extraordinary item (13.3) (11.4) 11.1 (64.1)
Extraordinary loss on retirement of debt - - - (8.7)
Net income (loss) $ (13.3) $ (11.4) $ 11.1 $ (72.8)
Per common share:
Income (loss) before
extraordinary item $ (.22) $ (.19) $ .19 $ (1.07)
Extraordinary loss on
retirement of debt - - - (.15)
Net income (loss) $ (.22) $ (.19) $ .19 $ (1.22)
Average number of common shares
and equivalents (thousands) 59,804 59,977 59,954 59,999
<FN>
(a) Results for the second quarter of 1994 included pre-tax
charges of $40 million ($34 million after tax) related to
employee severance, consolidation of production facilities, the
implementation of cost reduction actions, and a provision for
losses on operating assets expected to be disposed of prior to
the expiration of their originally estimated useful lives.
(b) The fourth quarter of 1994 included a one-time special
charge of $20 million in connection with the amendment of
certain agreements in anticipation of the initial public offering
of the Company's common stock.
</FN>
</TABLE>
<TABLE>
<CAPTION>
1993
(Dollars in millions, except per share First Second(c) Third Fourth
data)
<S> <C> <C> <C> <C>
Sales $ 879.4 $ 995.5 $ 976.5 $ 979.1
Cost of sales 650.5 754.5 727.7 769.9
Income (loss) before income taxes and
extraordinary item (9.5) (28.2) 4.1 (46.9)
Income taxes 8.1 6.1 7.2 14.8
Loss before extraordinary item (17.6) (34.3) (3.1) (61.7)
Extraordinary loss on retirement of debt - (91.9) - -
Net loss $ (17.6) $ (126.2) $ (3.1) $ (61.7)
Per common share:
Loss before extraordinary item $ (.37) $ (.65) $ (.05) $ (1.04)
Extraordinary loss on
retirement of debt - (1.55) - -
Net loss $ (.37) $ (2.20) $ (.05) $ (1.04)
Average number of common shares and
equivalents (thousands) 59,247 59,390 59,225 59,390
<FN>
(c) The second quarter of 1993 included $8 million of charges
for plant shutdowns and other cost reduction actions.
</FN>
</TABLE>
PARENTS AND SUBSIDIARIES
AMERICAN STANDARD COMPANIES INC. (DELAWARE) - REGISTRANT
<TABLE>
<CAPTION>
Subsid-
iaries*
U.S. SUBSIDIARIES:
<S> <C>
American Standard Inc. (Delaware) - Immediate Parent
The American Chinaware Company (Delaware)
American Standard Credit Inc. (Delaware)
American Standard International Inc. (Delaware)
Amstan Trucking Inc. (Delaware)
A-S Energy, Inc. (Texas)
A-S Thai Holdings Ltd. (Delaware)
It Holdings Inc. (Delaware)
Reefco Inc. (Delaware)
Standard Compressors Inc. (Delaware)
Standard Sanitary Manufacturing Company (Delaware)
The Trane Company (Delaware)
Trane Export, Inc. (Delaware)
WABCO Automotive Control Systems Inc. (Delaware)
WABCO Company (Pennsylvania)
World Standard Ltd. (Delaware)
(American Standard Inc., American Standard International Inc.,
WABCO Company and Standard Sanitary Manufacturing Company - Immediate
Parents)
Nether Holdings Inc. (Delaware)
FOREIGN SUBSIDIARIES:
Air Conditioning Products
(Wabco Standard French Holdings SNC - Immediate Parent)
Societe Trane (France)
(The Trane Company - Immediate Parent)
Trane S.A. (Switzerland)
(American Standard (U.K.) Limited - Immediate Parent)
Trane Limited (U.K.)
Trane (United Kingdom) Limited
Trane (Scotland) Limited
Transportation Products
(WABCO Standard GmbH, Nether Holdings Inc.,
Reefco Inc. and Ideal Standard S.p.A. - Immediate Parents)
WABCO Standard TRANE B.V. (Netherlands)
WABCO Standard French Holdings SNC (France)
WABCO Westinghouse S.A. (France)
WABCO Westinghouse Equipements Automobiles SNC (France)
WABCO Westinghouse AB (Sweden)
WABCO Westinghouse AG (Switzerland)
WABCO Westinghouse G.m.b.H. (Austria)
WABCO Westinghouse S.A.-N.V. (Belgium)
WABCO Westinghouse B.V. (Netherlands) 1
(Ideal Standard S.p.A. and Nether Holdings Inc.
- Immediate Parents)
American Standard (U.K.) Limited (England)
Clayton Dewandre Holdings Limited (England)
WABCO Automotive UK Limited (England)
The Bridge Foundry Company Limited (England)
(Ideal Standard S.p.A.- Immediate Parent)
WABCO Westinghouse Automotive Products S.p.A. (Italy)
<PAGE>
<S> <C>
PARENTS AND SUBSIDIARIES - (Continued) Subsid-
iaries*
Transportation Products - (Continued)
(Wabco Standard Trane Inc. - Immediate Parent)
Westinghouse Air Brake Brasil S.A. (Brazil)
(Nether Holdings Inc., American Standard International Inc.,
Standard Sanitary Manufacturing Company - Immediate Parents)
WABCO-Standard GmbH (Germany)
WABCO GmbH (Germany)
Perrot Bremsen GmbH (Germany)
Building Products
(American Standard Inc. - Immediate Parent)
American Standard Sanitaryware (Thailand) Public Company
Limited (Thailand)
EBS Eczacibasi Banyo Kuvetleri Sanayi Ve Ticaret A.S. (Turkey)
Egyptian American Sanitary Wares Co. S.A.E. (Egypt)
American Standard Philippine Holdings Inc. (Philippines)
Sanitary Wares Manufacturing Corporation (Philippines)
Waterex Inc. (Japan)
(Wabco Standard French Holdings SNC - Immediate Parent)
Ideal-Standard S.A. (France)
(Westinghouse Air Brake Brasil S.A. - Immediate Parent)
Ideal Standard Wabco Industria e Comercio Ltda. (Brazil) (a)
(American Standard (U.K.) Limited - Immediate Parent)
Ideal-Standard Limited (England)
(Nether Holdings Inc. - Immediate Parent)
WABCO Standard Trane Inc. (Canada) (b)
Ideal-Standard, S.A. de C.V. (Mexico) 1
(Nether Holdings Inc., WABCO Standard Trane B.V. - Immediate
Parents)
Ideal Standard S.p.A. (Italy)
Ideal Standard S.A. (Greece)
Sanistan B.V. (Netherlands)
(Nether Holdings Inc., American Standard International Inc. and
Standard Sanitary Manufacturing Company - Immediate Parents)
WABCO-Standard GmbH (Germany)
Ideal-Standard GmbH (Germany)
American Standard Korea, Inc. (Korea)
Miscellaneous
Standard Europe (EEIG)(France) (c)
All of the companies listed above operate under their company names and use
one or more of the trademarks listed under "Patents and Trademarks" of Item 1 of
this annual report on Form 10-K.
* The number shown under this heading indicates other subsidiaries, not
listed by name herein, which are in the same line of business. The name of the
immediate parent of such subsidiary or subsidiaries appears opposite the number.
</TABLE>
<PAGE>
PARENTS AND SUBSIDIARIES - (Continued)
(a) This subsidiary participates in Building Products and Transportation
Products.
(b) This subsidiary participates in Building Products and Air Conditioning
Products.
(c) A European Economic Interest Grouping organized by certain French and
Italian subsidiaries of the Company.
There are omitted from the table a number of minor or inactive or
name-saving subsidiaries, all of which together would not constitute a
significant subsidiary.
Revised Schedule of Priorities
Effective as of November 21, 1994
RESOLVED, that pursuant to Section 4 of the Stockholders Agreement dated as
of July 7, 1988, as amended prior to the date hereof (the "Stockholders
Agreement"), among this Corporation, Kelso ASI Partners, L.P. and the Management
Shareholders (as such term is defined in the Stockholders Agreement), the Board
of Directors hereby amends and restates as follows the schedule of priorities
for the payment of shares of common stock of this Corporation repurchased from
Management Shareholders (with all references below to $100,000 being deemed to
be $33,000 in the case of payment obligations arising under clauses (A), (B) and
(C) of section 2.2(a) of the Stockholders Agreement, except that such references
shall be deemed to be $66,000 in the case of a payment obligation arising under
subclause (x) of said clause (C):
At the Beginning of Each Year:
(i) When the December 31, 1994 valuation is received, and at the beginning of
each year thereafter, apply up to $100,000 to discharge or reduce each
outstanding payment obligation that arose in a prior year to the extent that the
funds so applied do not exceed the value of the shares plus interest.
Periodically During the Year:
(ii) Up to the balance remaining under the $10 million annual limitation, apply
up to $100,000 to each payment obligation that arises in such year.
At the End of the Year:
(iii) Up to the balance remaining under the $10 million annual limitation, apply
up to $100,000 to discharge or reduce each remaining payment obligation referred
to in (i) and (ii) above to the extent that the funds so applied do not exceed
the original cost of the shares giving rise to such payment obligation;
(iv) Up to the balance remaining under the $10 million annual limitation, repeat
(iii) above with respect to each remaining payment obligaiton referred to in (i)
and (ii) above until the original cost of the shares is covered or the funds
available for the year are exhausted;
<PAGE>
(v) Up to the balance remaining under the $10 million annual limitation, apply
up to $100,000 to discharge or reduce each remaining payment obligation referred
to in (i) and (ii) above (including accrued interest and any appreciation over
the original cost of the shares giving rise to such payment obligations); and
(vi) Up to the balance remaining under the $10 million annual limitation,
repeat (v) above until the payment obligations referred to in (i) and (ii) above
are discharged or the available funds for the year are exhausted.
* * *
