Exhibit 4
AMENDMENT NO. 1
dated as of June 1, 1995
amending the
$750,000,000 AMENDED AND RESTATED CREDIT AGREEMENT
dated as of May 18, 1994
among
MASCO CORPORATION
THE BANKS PARTY THERETO
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of June 1, 1995 to the
Amended and Restated Credit Agreement dated as of May 18,
1994 (the "Agreement") among MASCO CORPORATION, the BANKS
party thereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent.
WHEREAS, the undersigned parties desire to amend
the Agreement (i) to extend the Termination Date from May
15, 1998 to May 15, 2000, (ii) to reduce certain interest
rates and fees, (iii) to increase or reduce the Commitments
of certain Banks and add The Bank of New York and The
Mitsubishi Bank, Limited as additional Banks and (iv) to
make certain other changes;
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1. Definitions; References. Unless
otherwise specifically defined herein, each term used herein
which is defined in the Agreement has the meaning assigned
to such term in the Agreement. Each reference to "hereof,
"hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each
other similar reference contained in the Agreement shall
from and after the date hereof refer to the Agreement as
amended hereby.
SECTION 2. Amendment of Section 1.01. Section
1.01 of the Agreement is amended as follows:
(a) The definition of "Borrower's 1993 Form 10-K"
is deleted.
(b) The following new definitions are added in
the appropriate alphabetical order:
"Amendment No. 1" means Amendment No. 1 dated as
of June 1, 1995 to this Agreement.
"Amendment No. 1 Effective Date" means the date on
which Amendment No. 1 became effective pursuant to
Section 10 thereof.
"Borrower's 1994 Form 10-K" means the Borrower's
annual report on Form 10-K for the year ended December
31, 1994, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of
1934, as amended.
(c) The definition of "Continuing Director" is
amended by changing the date therein from "May 18, 1994" to
"June 1, 1995".
(d) The definition of "Termination Date" is
amended by changing the date therein from "May 15, 1998" to
"May 15, 2000".
SECTION 3. Interest Rates. (a) The definition of
"CD Margin" in Section 2.07(b) of the Agreement is amended
to read as follows:
"CD Margin" means, subject to Section 2.17:
(i) for any day on which Level I Status exists,
32.50 Basis Points;
(ii) for any day on which Level II Status exists,
37.50 Basis Points;
(iii) for any day on which Level III Status
exists, 40.00 Basis Points; or
(iv) for any day on which Level IV Status exists,
42.50 Basis Points.
(b) The definition of "Assessment Rate" in
Section 2.07(b) of the Agreement is amended by changing the
statutory reference therein from "12 C.F.R. Section
327.3(d)" to "12 C.F.R. Section 327.4(a)".
(c) The definition of "Euro-Dollar Margin" in
Section 2.07(c) of the Agreement is amended to read as
follows:
"Euro-Dollar Margin" means, subject to Section
2.17:
(i) for any day on which Level I Status exists,
20.00 Basis Points;
(ii) for any day on which Level II Status exists,
25.00 Basis Points;
(iii) for any day on which Level III Status
exists, 27.50 Basis Points; or
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(iv) for any day on which Level IV Status exists,
30.00 Basis Points.
SECTION 4. Fees. Section 2.08 of the Agreement
is amended to read as follows:
SECTION 2.08 Fees
(a) Facility Fees. The Borrower shall pay to the
Agent for the account of the Banks ratably in
proportion to their Commitments a facility fee
calculated, subject to Section 2.17, on a daily basis
at the rate per annum of (i) 10.00 Basis Points for any
day on which Level I Status exists, (ii) 12.50 Basis
Points for any day on which Level II Status exists,
(iii) 15.00 Basis Points for any day on which Level III
Status exists or (iv) 20.00 Basis Points for any day on
which Level IV Status exists. Such facility fee shall
accrue (i) from and including the Effective Date to but
excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on
the daily aggregate amount of the Commitments (whether
used or unused) and (ii) from and including such date
of termination of the Commitments to but excluding the
date the Loans shall be repaid in their entirety, on
the daily aggregate outstanding principal amount of the
Loans.
(b) Payments. Fees accrued under this Section
shall be payable quarterly on the last Domestic
Business Day of each March, June, September and
December and upon the termination of the Commitments in
their entirety (and, if later, the date the Loans shall
be repaid in their entirety).
SECTION 5. Application of Interest Rates and Fees. Section
2.17 is amended to read as follows:
SECTION 2.17. Application of Interest Rates and
Fees. Interest and fees shall accrue on and after the
Amendment No. 1 Effective Date at the rates described
in Sections 2.07 and 2.08. Interest and fees
(including commitment fees) for all periods prior to
the Amendment No. 1 Effective Date shall be calculated
and paid in accordance with this Agreement as in effect
before the Amendment No. 1 Effective Date.
SECTION 6. Financial Information. (a) Section
4.04(a) of the Agreement is amended by changing the date
therein from "December 31, 1993" to "December 31, 1994" and
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by changing the words "Borrower's 1993 Form 10-K" therein to
"Borrower's 1994 Form 10-K."
(b) Section 4.04(b) of the Agreement is amended
by changing the date therein from "December 31, 1993" to
"December 31, 1994".
SECTION 7. Illegality. The first sentence of
Section 8.02 of the Agreement is amended by changing the
words "the date of this Agreement" therein to "June 1,
1995".
SECTION 8. Increased Cost and Reduced Return.
The first sentence of each of Section 8.03(a) and Section
8.03(b) of the Agreement is amended by changing the words
"the date hereof" therein to "June 1, 1995".
SECTION 9. Amendment of Signature Pages. The
signature pages of the Agreement are amended as follows:
(a) The Commitment set forth opposite the name of
Morgan Guaranty Trust Company of New York is increased from
"$75,000,000" to "$80,000,000".
(b) The Commitment set forth opposite the name of
Comerica Bank is reduced from "$70,000,000" to
"$65,000,000".
(c) The Commitment set forth opposite the name of
NationsBank of Texas, N.A. is increased from "$45,000,000"
to "$55,000,000".
(d) The name of "Continental Bank N.A." is changed to
"Bank of America Illinois" and the Commitment set forth
opposite the name of such Bank is increased from
"$30,000,000" to "$60,000,000".
(e) The following new Commitment and signature line
are added after the Commitment and signature line of "ROYAL
BANK OF CANADA":
$30,000,000 THE BANK OF NEW YORK
By
Title:.
(f) The Commitment set forth opposite the name of
Commerzbank Aktiengesellschaft Grand Cayman Branch is
increased from "$20,000,000" to "$30,000,000".
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(g) The following new Commitment and signature line
are added after the Commitment and signature line of
"ISTITUTO BANCARIO SAN PAOLO DI TORINO, S.p.A.":
$20,000,000 THE MITSUBISHI BANK, LIMITED
By
Title:.
(h) The names of Bank of America NT&SA, Citibank, N.A.
and National City Bank and the Commitments set forth
opposite their respective names are deleted.
SECTION 10. Effectiveness of This Amendment.
This Amendment shall become effective on the date (the
"Amendment No. 1 Effective Date") when each of the following
conditions shall have been satisfied:
(a) the Agent shall have received counterparts
hereof signed by each of the parties listed on the
signature pages hereof (or, in the case of any party as
to which an executed counterpart shall not have been
received, the Agent shall have received in form
satisfactory to it a facsimile or other written
confirmation that such party has executed a counterpart
hereof);
(b) the Agent shall have received an opinion of
John R. Leekley, Vice President-General Counsel of the
Borrower, substantially in the form of Exhibit A
hereto;
(c) the Agent shall have received a certificate
of a duly authorized officer of the Borrower, dated the
Amendment No. 1 Effective Date, certifying that (i) as
of such date, no Default (as defined in the Agreement
as amended hereby) shall have occurred and be
continuing, and (ii) the representations and warranties
of the Borrower contained in the Agreement as amended
hereby are correct as though made on and as of such
date;
(d) the Agent shall have received, for the
account of each of The Bank of New York and The
Mitsubishi Bank, Limited, a duly executed Note dated on
or before the Amendment No. 1 Effective Date, complying
with the provisions of Section 2.05 of the Agreement;
and
(e) the Agent shall have received all documents
it may reasonably request relating to the existence of
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the Borrower, the corporate authority for and the
validity of this Amendment and any other matters
relevant hereto, all in form and substance satisfactory
to the Agent;
provided that this Amendment shall not become effective or
be binding on any party hereto unless all of the foregoing
conditions are satisfied not later than June 15, 1995. The
Agent shall promptly notify the Borrower and the Banks of
the Amendment No. 1 Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 11. Governing Law. This Amendment shall
be governed by and construed in accordance with the laws of
the State of New York.
SECTION 12. Counterparts. This Amendment may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the day and year first above
written.
The Borrower:
MASCO CORPORATION
By /s/ Robert B. Rosowski
Title: Vice President-
Controller
The Banks:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Timothy S. Broadbent
Title: Vice President
COMERICA BANK
By /s/ Charles L. Weddell
Title: Vice President
NBD BANK
By /s/ Richard H. Huttenlocher
Title: Vice President
BANK OF AMERICA NT&SA
By /s/ Steven K. Ahrenholz
Title: Vice President
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BANK OF AMERICA ILLINOIS
By /s/ Steven K. Ahrenholz
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ Michael S. Zehfuss
Title: Senior Vice President
CITIBANK, N.A.
By /s/ Barbara A. Cohen
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Susan L. Comstock
Title: Vice President
PNC BANK, NATIONAL
ASSOCIATION
By /s/ John F. Broeren
Title: Assistant Vice
President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Ashby
Title: Senior Manager Loan
Operations
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ROYAL BANK OF CANADA
By /s/ Patricia L. Shupert
Title: Manager, Corporate
Banking
THE BANK OF NEW YORK
By /s/ H. Stephen Griffith
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By /s/ Carol M. Otten
Title: Assistant Treasurer
By /s/ Dr. Helmut R. Tollner
Title: Executive Vice
President
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Terry L. Akins
Title: Senior Vice President
CHEMICAL BANK
By /s/ Rosemary Bradley
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By /s/ Masami Tsuboi
Title: Vice President
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DEUTSCHE BANK AG CHICAGO BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Pamela Neal
Title: Assistant Vice
President
By /s/ David S. Berger
Title: Assistant Vice
President
DRESDNER BANK AG CHICAGO AND
GRAND CAYMAN BRANCHES
By /s/ Haig Garabedian
Title: Vice President
By /s/ E.R. Holder
Title: Senior Vice President
ISTITUTO BANCARIO SAN PAOLO
DI TORINO, S.p.A.
By /s/ Roberto Gorlier
Title: First Vice President
and Deputy General
Manager
By /s/ William J. DeAngelo
Title: First Vice President
THE MITSUBISHI BANK, LIMITED
By /s/ Noboru Kobayashi
Title: Senior Vice President
and Joint General
Manager
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NATIONAL CITY BANK
By /s/ Andrew J. Walshaw
Title: Account Representative
THE SANWA BANK LIMITED
By /s/ Richard H. Ault
Title: Vice President
SOCIETY NATIONAL BANK
By /s/ Michael J. Jackson
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Hiroyuki Iwami
Title: Joint General Manager
The Agent:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Timothy S. Broadbent
Title: Vice President
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EXHIBIT A
OPINION OF
COUNSEL FOR THE BORROWER
___________ __, 199_
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am Vice President-General Counsel of Masco
Corporation (the "Borrower") and am familiar with the Amended
and Restated Credit Agreement dated as of May 18, 1994 among
the Borrower, the banks party thereto and Morgan Guaranty
Trust Company of New York, as Agent (the "Credit Agreement")
and Amendment No. 1 dated as of June 1, 1995 thereto
("Amendment No. 1"). Terms defined in the Credit Agreement
are used herein as therein defined. This opinion is being
rendered to you pursuant to Section 11 of Amendment No. 1.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion
that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its businesses substantially as now
conducted.
2. The execution, delivery and performance by the
Borrower of Amendment No. 1, the Credit Agreement as amended
thereby and the Notes being issued today to The Bank of New
York and The Mitsubishi Bank, Limited (the "New Notes") are
within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action of the Borrower,
require no action in respect of the Borrower by, or filing in
respect of the Borrower with, any governmental body, agency or
official (except filings under the Securities Exchange Act of
1934, as amended) and do not contravene, or constitute a
default under any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or
other instrument known to me to be binding upon the Borrower
or result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries under any
such agreement or instrument.
3. Each of Amendment No. 1 and the Credit Agreement
as amended thereby constitutes a valid and binding agreement
of the Borrower and each of the New Notes constitutes a valid
and binding obligation of the Borrower, in each case
enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general
principles of equity.
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against or
affecting, the Borrower or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or
official which, in my opinion, is likely to have a material
adverse effect on the business or financial position of the
Borrower and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity
or enforceability of Amendment No. 1, the Credit Agreement as
amended thereby or the New Notes.
Very truly yours,
John R. Leekley
Vice President and
General Counsel
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