AMENDMENT NO. 1 TO THE
FIVE-YEAR CREDIT AGREEMENT
Dated as of June 28, 1996
AMENDMENT NO. 1 TO THE FIVE-YEAR CREDIT AGREEMENT among
ALLIEDSIGNAL INC., a Delaware corporation (the "Company"), the banks,
financial institutions and other institutional lenders which are
parties to the Five-Year Credit Agreement referred to below
(collectively, the "Lenders"), CITIBANK, N.A., as agent (the "Agent"),
and ABN AMRO BANK N.V. and MORGAN GUARANTY TRUST COMPANY OF NEW YORK as
co-agents (the "Co-Agents") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders and the Agent have entered into
a Five-Year Credit Agreement dated as of June 30, 1995 ("Five-Year
Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Five-Year Credit
Agreement.
(2) The Company and the Lenders have agreed to amend the
Five-Year Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Five-Year Credit Agreement. The
Five-Year Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in
Section 2, hereby amended as follows:
(a) The definition of "Applicable Margin" in Section 1.01 is
amended in full to read as follows:
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
Public Debt Rating
S&P/Moody's Applicable Margin
-----------------------------------------------
Level 1
-------
AA- /Aa3 or above .090 o/o
Level 2
-------
Lower than AA-/Aa3
but at least A-/A3 .155 o/o
Level 3
-------
Lower than A-/A3 but
at least BBB+/Baa1 .200 o/o
Level 4
-------
Below BBB+/Baa1
or unrated .350 o/o
(b) The definition of "Applicable Percentage" in
Section 1.01 is amended in full to read as follows:
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in
effect on such date as set forth below:
Public Debt Rating
S&P/Moody's Applicable Percentage
---------------------------------------------------
Level 1
-------
AA- /Aa3 or above .060 o/o
Level 2
-------
Lower than AA-/Aa3
but at least A-/A3 .070 o/o
Level 3
-------
Lower than A-/A3 but
at least BBB+/Baa1 .100 o/o
Level 4
-------
Below BBB+/Baa1
or unrated .150 o/o
(c) The definition of "Commitment" in Section 1.01 is
amended by deleting clause (i) thereof in its entirety and
substituting for such clause the following:
"(i) the Dollar amount set forth opposite its name on
the signature pages of Amendment No. 1 to the Five-Year
Credit Agreement, dated as of June 28, 1996,".
(d) The definition of "Termination Date" in Section 1.01 is
amended by deleting the year "2000" in the first line therein and
substituting for such year the year "2001".
SECTION 2. Conditions of Effectiveness. This Amendment
shall become effective as of the date first above written when, and
only when, on or before June 28, 1996 the Agent shall have received
counterparts of this Amendment executed by the Company and all of the
Lenders or, as to any of the Lenders, advice satisfactory to the Agent
that such Lender has executed this Amendment. This Amendment is
subject to the provisions of Section 8.01 of the Five-Year Credit
Agreement. Section 1 hereof shall become effective when, and only
when, the Agent shall have additionally received all of the following
documents, each such document (unless otherwise specified) dated the
date of receipt thereof by the Agent (unless otherwise specified), in
form and substance satisfactory to the Agent (unless otherwise
specified):
(a) The Revolving Credit Notes of the Company to the
order of the Lenders, respectively.
(b) Certified copies of (i) the resolutions of the Board of
Directors of the Company authorizing this Amendment, the Notes and
the matters contemplated hereby and thereby and (ii) all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Amendment, the Notes and
the matters contemplated hereby and thereby.
(c) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Amendment, the
Notes and the other documents to be delivered hereunder.
(d) A favorable opinion of Victor P. Patrick, Associate
General Counsel for the Company, in substantially the form of
Exhibit G to the Five-Year Credit Agreement, and as to such other
matters as any Lender through the Agent may reasonably request.
(e) A certificate signed by a duly authorized officer of the
Company stating that:
(i) The representations and warranties contained
in Section 5 hereof and in Section 4.01 of the Five-Year
Credit Agreement are correct on and as of the date of such
certificate as though made on and as of such date; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 5. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The execution, delivery and performance by the Company
of this Amendment and the Notes of the Company delivered
hereunder, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not and
will not cause or constitute a violation of any provision of law
or regulation or any provision of the Certificate of Incorporation
or By-Laws of the Company or result in the breach of, or
constitute a default or require any consent under, or result in
the creation of any lien, charge or encumbrance upon any of the
properties, revenues, or assets of the Company pursuant to, any
indenture or other agreement or instrument to which the Company is
a party or by which the Company or its property may be bound or
affected.
(c) No authorization, consent, approval (including any
exchange control approval), license or other action by, and no
notice to or filing or registration with, any governmental
authority, administrative agency or regulatory body or any other
third party is required for the due execution, delivery or
performance by the Company of this Amendment or the Notes of the
Company.
(d) This Amendment has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by
the Company. This Amendment is, and each of the Notes of the
Company when delivered hereunder will be, the legal, valid and
binding obligation of the Company enforceable against the Company
in accordance with their respective terms, except to the extent
that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights
generally.
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 1995, and the related
Consolidated statements of income and cash flows of the Company
and its Consolidated Subsidiaries for the fiscal year then ended
(together with the notes to the financial statements of the
Company and its Consolidated Subsidiaries and the Consolidated
statements of cash flows of the Company and its Consolidated
Subsidiaries), accompanied by an opinion of one or more nationally
recognized firms of independent public accountants, copies of
which have been furnished to each Lender, are materially complete
and correct, and fairly present the Consolidated financial
condition of the Company and its Consolidated Subsidiaries as at
such date and the Consolidated results of the operations of the
Company and its Consolidated Subsidiaries for the period ended on
such date, all in accordance with GAAP consistently applied,
except as otherwise noted therein; and the Company and its
Consolidated Subsidiaries do not have on such date any material
contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or
provided for in such balance sheet or the notes thereto as at such
date. Since December 31, 1995, there has been no Material Adverse
Change.
(f) There is no action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental
Action, pending or to the knowledge of the Company threatened
affecting the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably likely to
have a Material Adverse Effect (other than the Disclosed
Litigation), or (ii) purports to affect the legality, validity or
enforceability of this Amendment, the Notes or the Five-Year
Credit Agreement, as amended hereby, and there has been no adverse
change in the status, or financial effect on the Company or any of
its Subsidiaries, of the Disclosed Litigation from that described
on Schedule 3.01(b) to the Five-Year Credit Agreement.
SECTION 6. Reference to and Effect on the Five-Year Credit
Agreement and the Notes. (a) On and after the effectiveness of this
Amendment, each reference in the Five-Year Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to
the Five-Year Credit Agreement, and each reference in the Notes to
"the Five-Year Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Five-Year Credit Agreement, shall mean and
be a reference to the Five-Year Credit Agreement, as amended by this
Amendment.
(b) The Five-Year Credit Agreement, as specifically amended
by this Amendment, and the Notes are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender or the Agent under
the Five-Year Credit Agreement, nor constitute a waiver of any
provision of the Five-Year Credit Agreement.
SECTION 7. Costs and Expenses. The Company agrees to pay on
demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration, modification and
amendment of this Amendment and the other instruments and documents to
be delivered hereunder (including, without limitation, the reasonable
fees and expenses of counsel for the Agent) in accordance with the
terms of Section 9.04 of the Five-Year Credit Agreement. In addition,
the Company shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery
of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Agent and each Lender
harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
SECTION 8. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 9. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ALLIEDSIGNAL INC.
By /s/ Nancy A. Garvey
-----------------------------
Title:
COMMITMENT AS LENDER
$23,000,000 CITIBANK, N.A.,
as Agent and as Lender
By /s/ Robert D. Wetrus
-----------------------------
Title: Vice President,
Attorney-in-Fact
By /s/ Alan J. Berenbaum
-----------------------------
Title: Attorney-in-Fact
$23,000,000 ABN AMRO BANK N.V.,
as Co-Agent and as Lender
By /s/ Larry W. Larzoni
------------------------------
Title: Group Vice President
$23,000,000 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Co-Agent and as Lender
By /s/ Penelope J. B. Cox
-----------------------------
Title: Vice President
$18,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ David Noda
-----------------------------
Name: David Noda
Title: Vice President
$18,000,000 BANK OF MONTREAL
By: /s/ Thruston W. Pettus
-----------------------------
Name: Thruston W. Pettus
Title: Director
$18,000,000 BANQUE NATIONALE DE PARIS, NEW YORK
By: /s/ Richard L. Sted
--------------------------
Name: Richard L. Sted
Title: Senior Vice President
By: /s/ Robert S. Taylor, Jr.
-----------------------------
Name: Robert S. Taylor, Jr.
Title: Senior Vice President
$18,000,000 CIBC INC.
By: /s/ Christopher P. Kleczkowski
---------------------------
Name: Christopher P. Kleczkowski
Title: Agent for CIBC Inc.
$18,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Colin T. Taylor
------------------------------
Name: Colin T. Taylor
Title: Director
By: /s/ Lain Stewart
------------------------------
Name: Lain Stewart
Title: Assistant Vice President
$18,000,000 MELLON BANK, N.A.
By: /s/ Caroline R. Walsh
-----------------------------
Name: Caroline R. Walsh
Title: Assistant Vice President
$18,000,000 MIDLAND BANK PLC, NEW YORK BRANCH
By: /s/ Rochelle Forster
-----------------------------
Name: Rochelle Forster
Title: Authorized Signatory
$18,000,000 NATIONAL WESTMINSTER BANK PLC
Joint Commitment (NEW YORK BRANCH)
By: /s/ Anne Marie Torre
-----------------------------
Name: Anne Marie Torre
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH)
By: /s/ Anne Marie Torre
----------------------------
Name: Anne Marie Torre
Title: Vice President
$18,000,000 NATIONSBANK, N.A.
By: /s/ Scott A. Jackson
----------------------------
Name: Scott A. Jackson
Title: Vice President
$18,000,000 ROYAL BANK OF CANADA
By: /s/ T. L. Gleason
----------------------------
Name: T. L. Gleason
Title: Vice President
$18,000,000 THE BANK OF NEW YORK
By: /s/ Russell S. Gorman
----------------------------
Name: Russell S. Gorman
Title: Vice President
$18,000,000 BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By: /s/ Michael C. Irwin
----------------------------
Name: Michael C. Irwin
Title: Vice President
$18,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ James B. Treger
----------------------------
Name: James B. Treger
Title: Vice President
$18,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Judith L. Mayberry
----------------------------
Name: Judith L. Mayberry
Title: As Acting Agent
$18,000,000 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ John V. Veltri
----------------------------
Name: John V. Veltri
Title: Senior Vice President
$18,000,000 THE TORONTO-DOMINION BANK
By: /s/ Kimberly Burleson
----------------------------
Name: Kimberly Burleson
Title: Mgr. Cr Admin
$18,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /s/ Stephen A. Cayer
----------------------------
Name: Stephen A. Cayer
Title: Assistant Treasurer
By: /s/ Peter B. Yearley
----------------------------
Name: Peter B. Yearley
Title: Managing Director