CONFORMED COPY
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CREDIT AGREEMENT
dated as of
November 28, 2000,
As Amended and Restated as of June 20, 2002
among
METALDYNE CORPORATION,
METALDYNE COMPANY LLC,
The Foreign Subsidiary Borrowers Party Hereto,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
COMERICA BANK,
as Documentation Agent
FIRST UNION NATIONAL BANK,
as Documentation Agent
NATIONAL CITY BANK,
as Documentation Agent
and
BANK ONE, NA,
as Documentation Agent
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X.X. XXXXXX SECURITIES INC.,
and
CREDIT SUISSE FIRST BOSTON
as
Joint Bookrunners and Joint Lead Arrangers
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms ...................................... 2
SECTION 1.02. Classification of Loans and Borrowings ............. 52
SECTION 1.03. Terms Generally .................................... 52
SECTION 1.04. Accounting Terms; GAAP ............................. 53
SECTION 1.05. Exchange Rate ...................................... 53
SECTION 1.06. Redenomination of Certain Foreign Currencies ....... 54
ARTICLE II
The Credits
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SECTION 2.01. Commitments ........................................ 55
SECTION 2.02. Loans and Borrowings ............................... 55
SECTION 2.03. Requests for Borrowings ............................ 56
SECTION 2.04. Swingline Loans .................................... 57
SECTION 2.05. Letters of Credit .................................. 59
SECTION 2.06. Funding of Borrowings .............................. 66
SECTION 2.07. Interest Elections ................................. 67
SECTION 2.08. Termination and Reduction of Commitments ........... 69
SECTION 2.09. Repayment of Loans; Evidence of Debt ............... 70
SECTION 2.10. Amortization of Term Loans ......................... 71
SECTION 2.11. Prepayment of Loans ................................ 73
SECTION 2.12. Fees ............................................... 75
SECTION 2.13. Interest ........................................... 77
SECTION 2.14. Alternate Rate of Interest ......................... 78
SECTION 2.15. Increased Costs .................................... 79
SECTION 2.16. Break Funding Payments ............................. 80
SECTION 2.17. Taxes .............................................. 81
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs ..................................... 83
SECTION 2.19. Mitigation Obligations; Replacement of Lenders ..... 86
SECTION 2.20. Additional Reserve Costs ........................... 87
SECTION 2.21. Designation of Foreign Subsidiary Borrowers ........ 88
SECTION 2.22. Foreign Subsidiary Borrower Costs .................. 88
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ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers ............................... 89
SECTION 3.02. Authorization; Enforceability ...................... 89
SECTION 3.03. Governmental Approvals; No Conflicts ............... 90
SECTION 3.04. Financial Condition; No Material Adverse Change .... 90
SECTION 3.05. Properties ......................................... 91
SECTION 3.06. Litigation and Environmental Matters ............... 91
SECTION 3.07. Compliance with Laws and Agreements ................ 92
SECTION 3.08. Investment and Holding Company Status .............. 92
SECTION 3.09. Taxes .............................................. 92
SECTION 3.10. ERISA .............................................. 93
SECTION 3.11. Disclosure ......................................... 93
SECTION 3.12. Subsidiaries ....................................... 94
SECTION 3.13. Insurance .......................................... 94
SECTION 3.14. Labor Matters ...................................... 94
SECTION 3.15. Solvency ........................................... 94
SECTION 3.16. Senior Indebtedness ................................ 95
SECTION 3.17. Security Documents ................................. 95
SECTION 3.18. Federal Reserve Regulations ........................ 96
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date ..................................... 97
SECTION 4.02. Each Credit Event .................................. 99
SECTION 4.03. Credit Events Relating to Foreign
Subsidiary Borrowers ............................ 99
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information ......... 100
SECTION 5.02. Notices of Material Events ......................... 103
SECTION 5.03. Information Regarding Collateral ................... 103
SECTION 5.05. Payment of Obligations ............................. 105
SECTION 5.06. Maintenance of Properties .......................... 105
SECTION 5.07. Insurance .......................................... 105
SECTION 5.08. Casualty and Condemnation .......................... 106
SECTION 5.09. Books and Records; Inspection and Audit Rights ..... 106
SECTION 5.10. Compliance with Laws ............................... 106
SECTION 5.11. Use of Proceeds and Letters of Credit .............. 107
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SECTION 5.12. Additional Subsidiaries ............................ 107
SECTION 5.13. Further Assurances ................................. 107
SECTION 5.14. [Intentionally Omitted] ............................ 108
SECTION 5.15. Available Funds; Additional Equity ................. 108
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness; Certain Equity Securities ............ 109
SECTION 6.02. Liens .............................................. 112
SECTION 6.03. Fundamental Changes ................................ 113
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions ................................... 115
SECTION 6.05. Asset Sales ........................................ 117
SECTION 6.06. Sale and Leaseback Transactions .................... 119
SECTION 6.07. Hedging Agreements ................................. 119
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness ................................... 120
SECTION 6.09. Transactions with Affiliates ....................... 122
SECTION 6.10. Restrictive Agreements ............................. 124
SECTION 6.11. Amendment of Material Documents .................... 124
SECTION 6.12. Convertible Debentures ............................. 125
SECTION 6.13. Interest Expense Coverage Ratio .................... 125
SECTION 6.14. Leverage Ratio ..................................... 125
SECTION 6.15. Capital Expenditures ............................... 126
SECTION 6.16. Consolidated Lease Expense ......................... 126
ARTICLE VII
Events of Default
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ARTICLE VIII
The Administrative Agent
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ARTICLE IX
Collection Allocation Mechanism
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SECTION 9.01. Implementation of CAM .............................. 133
SECTION 9.02. Letters of Credit .................................. 134
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ARTICLE X
Miscellaneous
SECTION 10.01. Notices ........................................... 136
SECTION 10.02. Waivers; Amendment ................................ 138
SECTION 10.03. Expenses; Indemnity; Damage Waiver ................ 140
SECTION 10.04. Successors and Assigns ............................ 142
SECTION 10.05. Survival .......................................... 146
SECTION 10.06. Counterparts; Integration; Effectiveness .......... 146
SECTION 10.07. Severability ...................................... 147
SECTION 10.08. Right of Setoff ................................... 147
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process ..................................... 147
SECTION 10.10. WAIVER OF JURY TRIAL .............................. 148
SECTION 10.11. Headings .......................................... 148
SECTION 10.12. Confidentiality ................................... 148
SECTION 10.13. Interest Rate Limitation .......................... 150
SECTION 10.14. Judgment Currency ................................. 150
SECTION 10.15. Effectiveness of the Amendment and Restatement;
Original Credit Agreement ..................... 151
SCHEDULES:
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Schedule 1.01(a) -- Existing Letters of Credit
Schedule 2.01 -- Commitments
Schedule 3.12 -- Subsidiaries
Schedule 3.17(d) -- Mortgage Filing Offices
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Debenture Account
Exhibit C -- Form of Foreign Subsidiary Borrowing
Agreement
Exhibit D -- Form of Guarantee Agreement
Exhibit E -- Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit F -- Form of Mortgage
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Mandatory Costs Rate
CREDIT AGREEMENT dated as of
November 28, 2000, as amended and restated
as of June 20, 2002, among METALDYNE
CORPORATION, METALDYNE COMPANY LLC, the
FOREIGN SUBSIDIARY BORROWERS party hereto,
the LENDERS party hereto, JPMORGAN CHASE
BANK, as Administrative Agent and Collateral
Agent, FIRST UNION NATIONAL BANK, as
Documentation Agent, CREDIT SUISSE FIRST
BOSTON, as Syndication Agent, COMERICA BANK,
as Documentation Agent, NATIONAL CITY BANK,
as Documentation Agent and BANK ONE, NA, as
Documentation Agent.
The Parent Borrower (such term and each other
capitalized term used but not defined in this preamble having the
meaning assigned to such term in Article I), intends to, among other
things, refinance certain of its obligations under the Credit Agreement
dated as of November 28, 2000, as amended by Amendment No. 1 dated as
of December 21, 2001, as further amended by Amendment No. 2 dated as of
June 6, 2002 (the "Original Credit Agreement"), among Holdings, the
Parent Borrower, the existing lenders thereunder and JPMorgan Chase
Bank, as the administrative agent, with the proceeds of (a) the
issuance of the Existing Subordinated Notes and (b) the Tranche D Term
Loans. Such proceeds will be used for (i) the prepayment in full of the
Tranche A Term Loans, the Tranche B Term Loans and the Incremental Term
Loans (each as defined in the Original Credit Agreement, and
collectively, the "Existing Term Loans"), (ii) the Receivables
Contribution and (iii) the payment of certain fees and expenses
relating thereto.
In connection therewith, the Parent Borrower desires
to amend and restate the terms and provisions of the Original Credit
Agreement in the form hereof in order to, among other things, provide
for the modifications set forth above.
The Lenders are willing to amend and restate the
Original Credit Agreement and are willing to extend credit to the
Parent Borrower and the Foreign Subsidiary Borrowers, in each case upon
the terms and subject to the conditions set forth herein. Accordingly,
the parties hereto agree as follows:
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in
this Agreement, the following terms have the meanings
specified below:
"ABR", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
"Acquired Assets" means (a) with respect to any
fiscal year, the consolidated tangible assets acquired pursuant to a
Permitted Acquisition during such fiscal year determined in accordance
with GAAP (the "Specified Amount"), provided that if such Permitted
Acquisition is not consummated during the first quarter of such fiscal
year, Acquired Assets shall be determined for purposes of this clause
(a) by multiplying the Specified Amount by (i) .75 if such Permitted
Acquisition is consummated during the second quarter of such fiscal
year, (ii) .50 if such Permitted Acquisition is consummated during the
third quarter of such fiscal year and (iii) .25 if such Permitted
Acquisition is consummated during the fourth quarter of such fiscal
year and (b) with respect to any fiscal year thereafter, the Specified
Amount.
"Acquisition Lease Financing" means any sale or
transfer by the Parent Borrower or any Subsidiary of any Specified
Acquired Property that is rented or leased by the Parent Borrower or
such Subsidiary so long as (a) the proceeds from such transaction
consist solely of cash, (b) such transaction is consummated within 90
days after the completion of the applicable Permitted Acquisition and
(c) the proceeds from such transaction are applied as contemplated by
Section 2.11(e).
"Adjusted LIBO Rate" means, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
"Administrative Agent" means Chase, in its capacity
as administrative agent for the Lenders hereunder. With respect to
Foreign Currency Borrowings, the Admini strative Agent may be an
Affiliate of Chase for purposes of administering such Borrowings, and
all references herein to the term "Administrative Agent" shall be
deemed to refer to
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the Administrative Agent in respect of the applicable Borrowing or to
all Administrative Agents, as the context requires.
"Administrative Questionnaire" means an
Administrative Questionnaire in a form supplied by the Administrative
Agent.
"Affiliate" means, 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.
"Alternate Base Rate" means, for any day, a rate per
annum 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%. Any
change in the Alternate Base Rate due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any
Revolving Lender, the percentage of the total Revolving Commitments
represented by such Lender's Revolving Commitment. If the Revolving
Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Revolving Commitments most recently
in effect, giving effect to any assignments.
"Applicable Rate" means, for any day (a) with respect
to any Tranche D Term Loan, (i) 1.75% per annum, in the case of an ABR
Loan, or (ii) 2.75% per annum, in the case of a Eurocurrency Loan, and
(b) with respect to any ABR Loan or Eurocurrency Loan that is a
Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR Spread", "Eurocurrency Spread" or
"Commitment Fee Rate", as the case may be, based upon the Leverage
Ratio as of the most recent determination date:
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Leverage Ratio: ABR Eurocurrency
Spread Spread
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Category 1
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Greater than 3.75 to 1.00 2.75% 3.75%
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Leverage Ratio: ABR Eurocurrency
Spread Spread
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Category 2
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Less than or equal to 3.75 to 1.00
but greater than 3.50 to 1.00 2.00% 3.00%
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Category 3
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Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 1.75% 2.75%
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Category 4
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Less than or equal to 3.00 to 1.00
but greater than 2.50 1.50% 2.50%
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Category 5
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Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 1.25% 2.25%
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Category 6
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Less than or equal to 2.00 to 1.00 1.00% 2.00%
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Commitment Fee Rates
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Leverage Ratio: High Usage Low Usage
Period Period
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Category 1
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Greater than 3.50 to 1.00 .50% .75%
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Category 2
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Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .50% .75%
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Category 3
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Less than or equal to 3.00 to 1.00
but greater than 2.50 .50% .75%
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Commitment Fee Rates
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Leverage Ratio: High Usage Low Usage
Period Period
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Category 4
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Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 .375% .625%
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Category 5
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Less than or equal to 2.00 to 1.00 .375% .625%
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For purposes of the foregoing, (i) the Leverage Ratio
shall be determined as of the end of each fiscal quarter of the Parent
Borrower's fiscal year based upon Holdings' consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii) each
change in the Applicable Rate resulting from a change in the Leverage
Ratio shall be effective during the period commencing on and including
the date of delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change;
provided that the Leverage Ratio shall be deemed to be in Category 1
(A) at any time that an Event of Default has occurred and is continuing
or (B) if the Parent Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section
5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are
delivered.
"Assessment Rate" means, for any day, the annual
assessment rate in effect on such day that is payable by a member of
the Bank Insurance Fund classified as "well-capitalized" and within
supervisory subgroup "B" (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance
to the Lenders.
6
"Asset Dropdown" means (a) the contribution by
Holdings to the Parent Borrower of all of its assets (other than
Saturn, the Saturn Subsidiary, the Specified Assets and the Specified
Cash and other assets approved by the Administrative Agent) and (b)
immediately after completion of such contribution, the execution of the
Supplemental Indenture by the parties thereto.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent
of any party whose consent is required by Section 10.04), and accepted
by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"Assumed Preferred Stock" means any preferred stock
or preferred equity interests of any Person that becomes a Subsidiary
after the date hereof; provided that (a) such preferred stock or
preferred equity interests exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary and (b) the aggregate liquidation
value of all such outstanding preferred stock and preferred equity
interests shall not exceed $25,000,000 at any time outstanding, less
the aggregate principal amount of Indebtedness incurred pursuant to
Section 6.01(a)(xiii).
"Available Funds" means collectively, at any time,
(a) the amount of unused Revolving Commitments designated by the Parent
Borrower at such time for availability to repurchase, redeem, repay or
otherwise retire Convertible Debentures pursuant to Section 5.15(b) and
(b) the amount of cash in the Debenture Account at such time.
"Available Funds Reserve Amount" means, at any time,
an amount equal to the aggregate face amount of all Convertible
Debentures outstanding at such time, provided that the Available Funds
Reserve Amount shall in no event exceed $100,000,000.
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowing" means (a) Loans of the same Class and
Type, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect,
or (b) a Swingline Loan.
7
"Borrowing Request" means a request by the Parent
Borrower or a Foreign Subsidiary Borrower, as the case may be, for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that (a) when
used in connection with any Eurocurrency Loan denominated in dollars or
Sterling, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London
interbank market and (b) when used in connection with any Revolving
Loan denominated in Euro, the term "Business Day" shall also exclude
any day on which the TARGET payment system is not open for the
settlement of payment in Euro.
"Calculation Date" means (a) each date on which a
Revolving Borrowing is made and (b) the last Business Day of each
calendar month.
"CAM" shall mean the mechanism for the allocation and
exchange of interests in the Credit Facilities and collections
thereunder established under Article IX.
"CAM Exchange" shall mean the exchange of the
Lender's interests provided for in Section 9.01.
"CAM Exchange Date" shall mean the date on which (a)
any event referred to in paragraph (h) or (i) of Article VII shall
occur in respect of Holdings, the Parent Borrower or any Foreign
Subsidiary Borrower or (b) an acceleration of the maturity of the Loans
pursuant to Article VII shall occur.
"CAM Percentage" shall mean, as to each Lender, a
fraction, expressed as a decimal, of which (a) the numerator shall be
the aggregate Dollar Equivalent (determined on the basis of Exchange
Rates prevailing on the CAM Exchange Date) of the Specified Obligations
owed to such Lender and such Lender's participation in undrawn amounts
of Letters of Credit immediately prior to the CAM Exchange Date and (b)
the denominator shall be the aggregate Dollar Equivalent (as so
determined) of the Specified Obligations owed to all the Lenders and
the aggregate undrawn amount of outstanding Letters of Credit
immediately prior to such CAM Exchange Date.
"Capital Expenditures" means, for any period, without
duplication, (a) the additions to property, plant and equipment and
other capital expenditures of Holdings, the Parent Borrower and its
consolidated Subsidiaries
8
(including the Receivables Subsidiary) that are (or would be) set forth
in a consolidated statement of cash flows of Holdings for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by Holdings, the Parent Borrower and its consolidated
Subsidiaries (including the Receivables Subsidiary) during such period.
"Capital Lease Obligations" of any Person means 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, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any
Person other than Holdings of any Equity Interest in the Parent
Borrower; (b) prior to the date of an IPO, either (i) Heartland,
together with its Affiliates and the HIP Co-Investors (together with
such HIP Co-Investors' Permitted Transferees (as such terms are defined
in the Shareholder Agreement as in effect on the date hereof)), shall
cease to beneficially own, directly or indirectly, Equity Interests in
Holdings representing at least a majority of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests
in Holdings, (ii) Heartland and its Affiliates shall cease to
beneficially own, directly or indirectly, Equity Interests in Holdings
representing at least 30% of each of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests in
Holdings or (iii) any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof) other
than Heartland and its Affiliates shall beneficially own at any time,
directly or indirectly (without giving effect, for avoidance of doubt,
to shares owned by Heartland and its Affiliates), a greater percentage
of the aggregate ordinary voting power of Holdings than the aggregate
ordinary voting power of Holdings that is beneficially owned at such
time, directly or indirectly (without giving effect, for avoidance of
doubt, to shares owned by such Person), by Heartland and its
Affiliates; (c) on or after an IPO, the acquisition of beneficial
ownership, directly or indirectly, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date
hereof) other than
9
Heartland and its Affiliates, of Equity Interests representing more
than 25% of either the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests in Holdings and such Person
or group beneficially owns at such time, directly or indirectly
(without giving effect, for avoidance of doubt, to shares owned by
Heartland and its Affiliates), a greater percentage of the aggregate
ordinary voting power of Holdings than the aggregate ordinary voting
power of Holdings that is beneficially owned at such time, directly or
indirectly, (without giving effect, for avoidance of doubt, to shares
owned by such Person), by Heartland and its Affiliates; (d) occupation
of a majority of the seats on the board of directors of Holdings by
Persons who were not nominated by Heartland and its Affiliates; or (e)
the occurrence of any change in control (or similar event, however
denominated) with respect to Holdings or the Parent Borrower under (i)
any indenture or agreement in respect of Material Indebtedness to which
Holdings, the Parent Borrower or any Subsidiary is a party,(ii) any
instrument governing any preferred stock of Holdings, the Parent
Borrower or any Subsidiary having a liquidation value or redemption
value in excess of $15,000,000 or (iii) the Permitted Receivables
Financing.
"Change in Law" means (a) the adoption of any law,
rule or regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpreta tion or application
thereof by any Governmental Authority after the date of this Agreement
or (c) compliance by any Lender or the Issuing Bank (or, for purposes
of Section 2.15(b), by any lending office of such Lender or by such
Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of
this Agreement.
"Chase" means JPMorgan Chase Bank.
"Class", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans, Tranche D Term Loans or Swingline Loans
and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment or Tranche D Commitment.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" means any and all "Collateral", as
defined in any applicable Security Document.
\
10
"Collateral Agent" means Chase, in its capacity as
collateral agent for the Lenders under the Security Documents. With
respect to Foreign Currency Borrowings, the Collateral Agent may be an
Affiliate of Chase, for purposes of administering the collateralization
of such Borrowings, and all references herein to the term "Collateral
Agent" shall be deemed to refer to the Collateral Agent in respect of
the applicable Borrowing or to all Collateral Agents, as the context
requires.
"Collateral and Guarantee Requirement" means the
requirement that:
(a) the Collateral Agent shall have received from
each party thereto (other than the Collateral Agent) either
(i) a counterpart of (A) the Guarantee Agreement, (B) the
Indemnity, Subrogation and Contribution Agreement, (C) the
Pledge Agreement and (D) the Security Agreement, in each case
duly executed and delivered on behalf of such Loan Party or
(ii) in the case of any Person that becomes a Loan Party after
the Effective Date, a supplement to each of the Guarantee
Agreement, the Indemnity, Subrogation and Contribution
Agreement, the Pledge Agreement and the Security Agreement, in
each case in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of the Parent
Borrower and each Subsidiary (including the Receivables
Subsidiary) owned by or on behalf of any Loan Party shall have
been pledged pursuant to the Pledge Agreement (except that the
Loan Parties shall not be required to pledge more than 65% of
the outstanding voting Equity Interests of any Foreign
Subsidiary, it being understood that this exception shall not
limit the application of the Foreign Security Collateral and
Guarantee Requirement) and the Collateral Agent shall have
received certificates or other instruments representing all
such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in
blank;
(c) all Indebtedness of Holdings, the Parent Borrower
and each Subsidiary in an aggregate principal amount that
exceeds $500,000 that is owing to any Loan Party shall be
evidenced by a promissory note and shall have been pledged
pursuant to the Pledge Agreement and the Collateral Agent
shall have received all such promissory notes, together with
instruments of transfer with respect thereto endorsed in
blank;
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(d) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed,
registered or recorded to create the Liens intended to be
created by the Security Agreement and the Pledge Agreement and
perfect such Liens to the extent required by, and with the
priority required by, the Security Agreement and the Pledge
Agreement shall have been filed, registered or recorded or
delivered to the Collateral Agent for filing, registration or
recording;
(e) the Collateral Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged
Property duly executed and delivered by the record owner of
such Mortgaged Property, (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance
company insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free
of any other Liens except as expressly permitted by Section
6.02, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent or the Required
Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as
the Administrative Agent or the Required Lenders may
reasonably request with respect to any such Mortgage or
Mortgaged Property; provided that with respect to any
Mortgaged Property as to which a Mortgage was recorded prior
to the Effective Date, the requirements of this paragraph
shall be limited to such supplements, amendments and
bring-downs as the Collateral Agent shall reasonably request;
and
(f) each Loan Party (other than the Foreign
Subsidiary Borrowers) shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it
is a party, the performance of its obligations thereunder and
the granting by it of the Liens thereunder.
"Commitment" means a Revolving Commitment or Tranche
D Commitment, or a combination thereof (as the context requires).
"Compac Event" means the damage to any property owned
by Compac Corporation and its subsidiaries resulting from floods
occurring in August, 2000.
12
"Consolidated Cash Interest Expense" means, for any
period, the excess of (a) the sum, without duplication, of (i) the
interest expense (including imputed interest expense in respect of
Capital Lease Obligations) of Holdings, the Parent Borrower and the
Subsidiaries (including the Receivables Subsidiary) for such period,
determined on a consolidated basis in accordance with GAAP, (ii) any
interest accrued during such period in respect of Indebtedness of
Holdings, the Parent Borrower or any Subsidiary (including the
Receivables Subsidiary) that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance
with GAAP, plus (iii) any cash payments made during such period in
respect of obligations referred to in clause (b)(iii) below that were
amortized or accrued in a previous period, plus (iv)
interest-equivalent costs associated with any Permitted Receivables
Financing, whether accounted for as interest expense or loss on the
sale of receivables minus (b) the sum of, without duplication, (i)
interest income of Holdings, the Parent Borrower and the Subsidiaries
(including the Receivables Subsidiary) for such period, determined on a
consolidated basis in accordance with GAAP, (ii) to the extent included
in such consolidated interest expense for such period, noncash amounts
attributable to amortization of financing costs paid in a previous
period, plus (iii) to the extent included in such consolidated interest
expense for such period, noncash amounts attributable to amortization
of debt discounts or accrued interest payable in kind for such period,
plus (iv) to the extent included in such consolidated interest expense
for such period, all financing fees incurred in connection with the
Transactions. For purposes of calculating Consolidated Cash Interest
Expense for each of the four-fiscal-quarter periods ending December 31,
2000, March 31, 2001 and June 30, 2001, Consolidated Cash Interest
Expense for such four-fiscal-quarter period shall equal Consolidated
Cash Interest Expense for the period commencing October 1, 2000 and
ending on (a) December 31, 2000, multiplied by 4, (b) March 31, 2001,
multiplied by 2 and (c) June 30, 2001, multiplied by 4/3.
Notwithstanding the foregoing, the defined term "Consolidated Cash
Interest Expense" shall not include any interest expense in respect of
$205,000,000 aggregate principal amount of Convertible Debentures
during the 90-day period following the consumation of the TriMas
Transaction.
"Consolidated EBITDA" means, for any period,
Consolidated Net Income for such period plus (a) without duplication
and to the extent deducted in determining such Consolidated Net Income,
the sum of (i) consolidated interest expense for such period, (ii)
consolidated income
13
tax expense for such period (including all single business tax expenses
imposed by state law), (iii) all amounts attributable to depreciation
and amortization for such period, (iv) any extraordinary noncash
charges for such period, (v) all management fees and other fees paid
during such period to Heartland and/or its Affiliates pursuant to the
Heartland Management Agreement to the extent permitted by Section 6.09,
(vi) all payments made during and expenses recorded in such period in
respect of the Restricted Stock Obligation and all items expensed at
the Recapitalization Date in respect of Restricted Stock Awards, (vii)
any losses incurred during such period in connection with the sale of
receivables pursuant to the Permitted Receivables Financing, (viii) all
extraordinary losses during such period, (ix) noncash expenses during
such period resulting from the grant of Equity Interests to management
and employees of Holdings, the Parent Borrower or any of the
Subsidiaries, (x) the aggregate amount of deferred financing expenses
for such period, (xi) all other noncash expenses or losses of Holdings,
the Parent Borrower or any of the Subsidiaries for such period
(excluding any such charge that constitutes an accrual of or a reserve
for cash charges for any future period), (xii) any nonrecurring fees,
expenses or charges realized by Holdings, the Parent Borrower or any of
the Subsidiaries for such period related to any offering of Equity
Interests or incurrence of Indebtedness, (xiii) with respect to any
four-fiscal-quarter period ending prior to or on December 31, 2001,
operating expense and other expense reductions and other synergistic
benefits relating to the Recapitalization Transactions, not to exceed
the applicable Excluded Amount for such period, (xiv) Excluded
Severance Charges for such period, (xv) fees and expenses in connection
with the Transactions and fees and expenses of Holdings, the Parent
Borrower and its Subsidiaries (excluding TriMas and the subsidiaries of
TriMas) in connection with the TriMas Transaction, (xvi) any
nonrecurring costs and expenses arising from the integration of any
business acquired pursuant to any Permitted Acquisition and (xvii)
solely for purposes of determining compliance with Section 6.14, fees
paid pursuant to Section 18 of Amendment No. 1 to the Original Credit
Agreement; provided that the aggregate amount of costs and expenses
that may be included in Consolidated EBITDA pursuant to this clause
(xvi) during the term of this Agreement shall not exceed $5,000,000 and
minus (b) without duplication and to the extent included in determining
such Consolidated Net Income, any extraordinary gains for such period,
all determined on a consolidated basis in accordance with GAAP. For
purposes of determining the Leverage Ratio and Senior Leverage Ratio,
if the Parent Borrower or any Subsidiary has made any Permitted
Acquisition or any sale, transfer, lease or other disposition of assets
outside of the ordinary course of business permitted by Section 6.05
during the relevant period for determining the Leverage Ratio and
Senior Leverage Ratio, Consolidated EBITDA for the relevant period
shall be calculated only for purposes of determining Leverage Ratio and
Senior Leverage Ratio after giving pro forma effect thereto, as if such
Permitted Acquisition or sale, transfer, lease
14
or other disposition of assets (and, in each case, any related
incurrence, repayment or assumption of Indebtedness, with any new
Indebtedness being deemed to be amortized over the relevant period in
accordance with its terms, and assuming that any Revolving Loans
borrowed in connection with such acquisition are repaid with excess
cash balances when available) had occurred on the first day of the
relevant period for determining Consolidated EBITDA. Any such pro forma
calculations may include operating and other expense reductions and
other adjustments for such period resulting from any Permitted
Acquisition that is being given pro forma effect to the extent that
such operating and other expense reductions and other adjustments (a)
would be permitted pursuant to Article XI of Regulation S-X under the
Securities Act of 1933 or (b) are reasonably consistent with the
purpose of Regulation S-X as determined in good faith by the Parent
Borrower in consultation with the Administration Agent. For purposes of
calculating Consolidated EBITDA for each of the fiscal-quarters ending
September 30, 2001, December 31, 2001, and March 31, 2002, Consolidated
EBITDA shall equal, for the fiscal-quarter ending on (a) September 30,
2001, $41,700,000, (b) December 31, 2001, $35,000,000 and (c) March 31,
2002, $41,600,000.
"Consolidated Lease Expense" shall mean, for any
period, all rental expenses of Holdings, the Parent Borrower and the
Subsidiaries (including the Receivables Subsidiary) during such period
under operating leases for real or personal property, excluding real
estate taxes, insurance costs and common area maintenance charges and
net of sublease income, other than Capitalized Lease Obligations, all
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the
net income or loss of Holdings, the Parent Borrower and the
Subsidiaries (including the Receivables Subsidiary) for such period
determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) the income of any Person (other than
the Parent Borrower) in which any other Person (other than the Parent
Borrower or any Subsidiary or any director holding qualifying shares in
compliance with applicable law) owns an Equity Interest,
15
except to the extent of the amount of dividends or other distributions
actually paid to the Parent Borrower or any of the Subsidiaries during
such period, and (b) the income or loss of any Person accrued prior to
the date it becomes a Subsidiary or is merged into or consolidated with
the Parent Borrower or any Subsidiary or the date that such Person's
assets are acquired by the Parent Borrower or any Subsidiary.
"Control" means 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 ability to
exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Conversion Right" means the right of the Debenture
Holders after the Merger to convert their Convertible Debentures into
the amount of cash that the Debenture Holders would have received if
such Convertible Debentures had been converted into common stock of
Holdings immediately prior to the Merger, as provided in Section 3.06
of the Convertible Debentures Indenture.
"Convertible Debentures" means the 4 1/2% Convertible
Subordinated Debentures of Holdings issued under the Convertible
Debentures Indenture in an aggregate principal amount not greater than
$305,000,000, which after the Asset Dropdown became joint and several
obligations of the Parent Borrower and Holdings.
"Convertible Debentures Indenture" means the
Indenture dated as of November 1, 1986, between Holdings and Xxxxxx
Guaranty Trust Company of New York, as amended by the two Supplemental
Indentures dated the Recapitalization Date.
"Credit Facility" means a category of Commitments and
extensions of credit thereunder.
"Debenture Account" means an account established with
the Administrative Agent in the name of the Administrative Agent and
for the benefit of the Lenders having the terms specified in Exhibit B,
all proceeds in which will be used to defease, redeem, repay or
repurchase or otherwise retire Convertible Debentures as specified in
this Agreement.
"Debenture Holders" means the holders of record, from
time to time, of the Convertible Debentures.
"Debenture Maturity Date" means December 15, 2003.
16
"Default" means any event or condition which
constitutes an Event of Default or which upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and
proceedings and the environmental matters disclosed in Schedule 3.06 to
the Original Credit Agreement.
"dollars" or "$" refers to lawful money of
the United States of America.
"Dollar Equivalent" means, on any date of
determination, (a) with respect to any amount in dollars, such amount,
and (b) with respect to any amount in any Foreign Currency, the
equivalent in dollars of such amount, determined by the Administrative
Agent pursuant to Section 1.05(b) using the Exchange Rate with respect
to such Foreign Currency at the time in effect under the provisions of
such Section.
"Domestic Loan Party" means any Loan Party, other
than the Foreign Subsidiary Borrowers.
"Effective Date" means the date on which the
conditions specified in Section 4.01 are satisfied (or waived in
accordance with Section 10.02).
"EMU Legislation" means the legislative measures of
the European Union for the introduction of, changeover to or operation
of the Euro in one or more member states.
"Environmental Laws" means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the
management, Release or threatened Release of any Hazardous Material or
to health and safety matters.
"Environmental Liability" means any liabilities,
obligations, damages, losses, claims, actions, suits, judgments, or
orders, contingent or otherwise (including any liability for damages,
costs of environmental remediation, costs of administrative oversight,
fines, natural resource damages, penalties or indemnities), of
Holdings, the Parent Borrower or any Subsidiary (including the
Receivables Subsidiary) directly or indirectly resulting from or
relating to (a) compliance or non-compliance with any Environmental
Law, (b) the generation, use, handling,
17
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous
Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means shares of capital stock,
partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership
interests in a Person or any warrants, options or other rights to
acquire such interests.
"Equity Rollover" means the issuance of common stock
of Holdings on the Recapitalization Date to the Continuing Shareholders
(as defined in the Recapitalization Agreement) or their permitted
transferees under the Exchange and Voting Agreement (as defined in the
Recapitalization Agreement), in each case pursuant to and in accordance
with Section 2.04(d) of the Recapitalization Agreement.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) that, together with the Parent Borrower,
is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day notice
period is waived); (b) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect
to any Plan; (d) the incurrence by the Parent Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Parent Borrower
or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the
Parent Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from
18
any Plan or Multiemployer Plan; or (g) the receipt by the Parent
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Parent Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of
ERISA.
"Euro" or "(EUR)" means the single currency of the
European Union as constituted by the Treaty on European Union and as
referred to in the EMU Legislation.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to
the Adjusted LIBO Rate.
"European Factoring Arrangement" means any factoring
arrangement entered into by any Foreign Subsidiary with respect to
accounts receivable of such entity that are held in Europe pursuant to
customary terms; provided that the aggregate recourse and exposure in
respect thereof shall not exceed at any time $15,000,000.
"Event of Default" has the meaning assigned to such
term in Article VII.
"Excess Cash Flow" means, for any fiscal year, the
sum (without duplication) of:
(a) the consolidated net income (or loss) of
Holdings, the Parent Borrower and its consolidated
Subsidiaries (including the Receivables Subsidiary) for such
fiscal year, adjusted to exclude any gains or losses
attributable to Prepayment Events; plus
(b) the excess, if any, of the Net Proceeds received
during such fiscal year by Holdings, the Parent Borrower and
its consolidated Subsidiaries (including the Receivables
Subsidiary) in respect of any Prepayment Events over the
aggregate principal amount of Term Loans prepaid pursuant to
Section 2.11(d) (and, as applicable to such fiscal year,
Existing Term Loans prepaid pursuant to Section 2.11(d) of the
Original Credit Agreement) in respect of such Net Proceeds;
plus
(c) depreciation, amortization and other noncash
charges or losses deducted in determining such consolidated
net income (or loss) for such fiscal year; plus
19
(d) the sum of (i) the amount, if any, by which Net
Working Capital (adjusted to exclude changes arising from
Permitted Acquisitions) decreased during such fiscal year plus
(ii) the net amount, if any, by which the consolidated
deferred revenues and other consolidated accrued long-term
liability accounts of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables
Subsidiary) (adjusted to exclude changes arising from
Permitted Acquisitions) increased during such fiscal year plus
(iii) the net amount, if any, by which the consolidated
accrued long-term asset accounts of Holdings, Parent Borrower
and its consolidated Subsidiaries (including the Receivables
Subsidiary) (adjusted to exclude changes arising from
Permitted Acquisitions) decreased during such fiscal year;
minus
(e) the sum of (i) any noncash gains included in
determining such consolidated net income (or loss) for such
fiscal year plus (ii) the amount, if any, by which Net Working
Capital (adjusted to exclude changes arising from Permitted
Acquisitions) increased during such fiscal year plus (iii) the
net amount, if any, by which the consolidated deferred
revenues and other consolidated accrued long-term liability
accounts of Holdings, the Parent Borrower and its consolidated
Subsidiaries (including the Receivables Subsidiary) (adjusted
to exclude changes arising from Permitted Acquisitions)
decreased during such fiscal year plus (iv) the net amount, if
any, by which the consolidated accrued long-term asset
accounts of Holdings, the Parent Borrower and its consolidated
Subsidiaries (including the Receivables Subsidiary) (adjusted
to exclude changes arising from Permitted Acquisitions)
increased during such fiscal year; minus
(f) the sum of (i) Capital Expenditures for such
fiscal year (except to the extent attributable to the
incurrence of Capital Lease Obligations or otherwise financed
by incurring Long-Term Indebtedness) plus (ii) cash
consideration paid during such fiscal year to make
acquisitions or other capital investments (except to the
extent financed by incurring Long-Term Indebtedness); minus
(g) the aggregate principal amount of Long-Term
Indebtedness repaid or prepaid by Holdings, the Parent
Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) during such fiscal year, excluding (i)
Indebtedness in respect of Revolving Loans and Letters of
Credit, (ii) Term Loans prepaid
20
pursuant to Section 2.11(d) or (f) (and, as applicable to such
fiscal year, Existing Term Loans prepaid pursuant to Section
2.11(d) or (f) of the Original Credit Agreement) and (iii)
repayments or prepayments of Long-Term Indebtedness financed
by incurring other Long-Term Indebtedness; minus
(h) [intentionally omitted];
(i) the noncash impact of currency translations and
other adjustments to the equity account, including adjustments
to the carrying value of marketable securities and to pension
liabilities, in each case to the extent such items would
otherwise constitute Excess Cash Flow.
"Exchange Rate" means on any day, with respect to any
Foreign Currency, the rate at which such Foreign Currency may be
exchanged into dollars, as set forth at approximately 11:00 a.m.,
London time, on such day on the Reuters World Currency Page for such
Foreign Currency. In the event that such rate does not appear on any
Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and
the Parent Borrower, or, in the absence of such agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates
of exchange of the Administrative Agent in the market where its foreign
currency exchange operations in respect of such Foreign Currency are
then being conducted, at or about 10:00 a.m., local time, on such date
for the purchase of dollars for delivery two Business Days later;
provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent, after
consultation with the Parent Borrower, may use any reasonable method it
deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
"Excluded Amount" means, with respect to any fiscal
period ending on the date specified below, the amount set forth
opposite such date:
Date Amount
---- ------
December 31, 2000 $15,000,000
March 31, 2001 $15,000,000
June 30, 2001 $12,500,000
--------------------------------------------------
21
September 20, 2001 $10,000,000
December 31, 2001 $ 7,500,000
"Excluded Severance Charges" means any nonrecurring
severance or similar costs relating to the termination of employment of
any employees arising during any four-fiscal-quarter period ending on
or prior to December 31, 2003, not to exceed in the aggregate for all
such periods $12,500,000.
"Excluded Taxes" means, with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation
of the Parent Borrower or any Foreign Subsidiary Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits Taxes
imposed by the United States of America or any similar Tax imposed by
any other jurisdiction described in clause (a) above and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request
by the Parent Borrower under Section 2.19(b)), (i) any United States
withholding Tax that is in effect and would apply to amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to
this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Parent Borrower with respect to any
United States withholding Tax pursuant to Section 2.17(a) and (ii) any
withholding Tax that is attributable to such Foreign Lenders' failure
to comply with Section 2.17(e).
"Existing Letters of Credit" means the letters of
credit issued under the Original Credit Agreement and outstanding as of
the Effective Date, which are listed on Schedule 1.01(a).
"Existing Subordinated Notes" means the 11%
Subordinated Notes of Holdings due 2012 in the aggregate principal
amount of $250,000,000 (including the Exchange Notes issued in exchange
for the initial Existing Subordinated Notes as contemplated by the
registration rights agreement related thereto) and the Indebtedness
represented thereby.
22
"Existing Subordinated Notes Documents" means the
Existing Subordinated Notes, the indenture under which the Existing
Subordinated Notes are issued and all other documents evidencing,
guaranteeing or otherwise governing the terms of the Existing
Subordinated Notes.
"Existing Term Loans Prepayment" means the prepayment
in full of all Existing Term Loans in accordance with the Original
Credit Agreement, including all principal, interest, fees and other
amounts outstanding under or due in connection therewith.
"Federal Funds Effective Rate" means, for any day,
the weighted average (rounded upwards, if necessary, to the next 1/100
of 1%) 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for
such transactions received by the Administra tive Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or controller of the
Parent Borrower.
"Foreign Currencies" means Euro and Sterling.
"Foreign Currency Commitment" means, with respect to
each Revolving Lender, the commitment of such Revolving Lender to make
Foreign Currency Loans and to acquire participations in Foreign
Currency Letters of Credit, expressed as an amount representing the
maximum aggregate amount of such Revolving Lender's Foreign Currency
Exposure hereunder, as such commitment may be reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Revolving Lender pursuant to
Section 10.04. The initial amount of each Revolving Lender's Foreign
Currency Commitment is set forth on Schedule 2.01, or in the Assignment
and Acceptance pursuant to which such Revolving Lender shall have
assumed its Foreign Currency Commitment, as applicable. The initial
aggregate amount of the Revolving Lenders' Foreign Currency Commitments
is the Dollar Equivalent of $75,000,000.
"Foreign Currency Exposure" means, with respect to
any Revolving Lender at any time, the Dollar Equivalent of
23
the sum of the outstanding principal amount of such Lender's Foreign
Currency Loans and its Foreign Currency LC Exposure at such time.
"Foreign Currency LC Exposure" means, at any time,
the sum of (a) the aggregate undrawn amount of all outstanding Foreign
Currency Letters of Credit at such time plus (b) the aggregate amount
of all LC Disbursements in respect of Foreign Currency Letters of
Credit that have not yet been reimbursed by or on behalf of the Foreign
Subsidiary Borrowers at such time. The Foreign Currency LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of
the total Foreign Currency LC Exposure at such time.
"Foreign Currency Letter of Credit" means a Letter of
Credit denominated in a Foreign Currency.
"Foreign Currency Loan" means a Revolving Loan
denominated in a Foreign Currency.
"Foreign Lender" means any Lender that is organized
under the laws of a jurisdiction other than that in which the Parent
Borrower or any Foreign Subsidiary Borrower, as the case may be, is
located. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Security Collateral and Guarantee Requirement"
means the requirement that:
(a) the Collateral Agent shall have received from the
applicable Foreign Subsidiary Borrower and its subsidiaries a
counterpart of each Foreign Security Document relating to the
assets (including the capital stock of its subsidiaries) of
such Foreign Subsidiary Borrower, excluding assets as to which
the Collateral Agent shall determine in its reasonable
discretion, after consultation with the Parent Borrower, that
the costs and burdens of obtaining a security interest are
excessive in relation to the value of the security afforded
thereby;
(b) all documents and instruments (including legal
opinions) required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created over the assets specified in
clause (a) above and perfect such Liens to the extent required
by, and with priority required by, such Foreign Security
Documents,
24
shall have been filed, registered or recorded or delivered to
the Collateral Agent for filing, registration or recording;
(c) such Foreign Subsidiary Borrower and its
subsidiaries shall become a guarantor of the obligations under
the Loan Documents of other Foreign Subsidiary Borrowers, if
any, under a guarantee agreement reasonably acceptable to the
Collateral Agent, in either case duly executed and delivered
on behalf of such Foreign Subsidiary Borrower and such
subsidiaries, except that such guarantee shall not be required
if the Collateral Agent shall determine in its reasonable
discretion, after consultation with the Parent Borrower, that
the benefits of such a guarantee are limited and such limited
benefits are not justified in relation to the burdens imposed
by such guarantee on the Parent Borrower and its Subsidiaries;
and
(d) such Foreign Subsidiary Borrower shall have
obtained all consents and approvals required to be obtained by
it in connection with the execution of such Foreign Security
Documents, the performance and obligations thereunder and the
granting by it of the Liens thereunder.
"Foreign Security Documents" means any agreement or
instrument entered into by any Foreign Subsidiary Borrower that is
reasonably requested by the Collateral Agent providing for a Lien over
the assets (including shares of other Subsidiaries) of such Foreign
Subsidiary Borrower.
"Foreign Subsidiary" means any Subsidiary that is
organized under the laws of a jurisdiction other than the United States
of America or any State thereof or the District of Columbia.
"Foreign Subsidiary Borrowers" means any wholly owned
Foreign Subsidiary of the Parent Borrower organized under the laws of
England and Wales, any member nation of the European Union or any other
nation in Europe reasonably acceptable to the Collateral Agent that
becomes a party to this Agreement pursuant to Section 2.21.
"Foreign Subsidiary Borrowing Agreement" means an
agreement substantially in the form of Exhibit C.
"GAAP" means generally accepted accounting principles
in the United States of America.
25
"Governmental Authority" means the government of the
United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor")
means any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof,
(b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit D, made by Holdings, the Parent
Borrower and the Subsidiary Loan Parties party thereto in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Hazardous Materials" means all explosive,
radioactive, hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Heartland" means Heartland Industrial
Partners, L.P., a Delaware limited partnership.
"Heartland Management Agreement" means the monitoring
agreement dated as of the Recapitalization Date between Heartland and
Holdings.
26
"Hedging Agreement" means any interest rate
protection agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement.
"High Usage Period" means any day that the unused
amount of Revolving Commitments is less than 50% of the Revolving
Commitments.
"HIP Co-Investor" means a shareholder of Holdings
that is a limited partner, or an Affiliate of a limited partner, in
Heartland or in any other fund or investment vehicle established or
managed by Heartland or an Affiliate of Heartland and shall in any
event include those Persons constituting HIP Co-Investors under the
Shareholder Agreement on the Recapitalization Date.
"Holdings" means Metaldyne Corporation, formerly
known as MascoTech, Inc., a Delaware corporation.
"Holdings Preferred Dividends" means (a) dividend
payments due in respect of the Holdings Preferred Stock pursuant to
Article 4(c)(2) of Holdings' Certificate of Designation and (b) any
cash dividend payments in respect of any Qualified Holdings Preferred
Stock.
"Holdings Preferred Stock" means the Series A
Preferred Stock issued by Holdings, having an aggregate liquidation
value of $36,100,100 and the other terms specified in Holdings'
Certificate of Incorporation.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed money or
with respect to advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired
by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) 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 Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person (other than lease obligations
that are Capital Lease
27
Obligations solely because of a Guarantee), (i) all obligations,
contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
Notwithstanding anything to the contrary in this paragraph, the term
"Indebtedness" shall not include (a) the Restricted Stock Obligation,
(b) any obligation in respect of the Saturn Proceeds Distribution, (c)
any obligations in respect of options or other Equity Interests held by
the Pre-Merger Stockholders to the extent surviving the
Recapitalization Transactions, (d) agreements providing for
indemnification, purchase price adjustments or similar obligations
incurred or assumed in connection with the acquisition or disposition
of assets or capital stock and (e) trade payables and accrued expenses
in each case arising in the ordinary course of business.
"Indemnified Taxes" means Taxes other than
Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement"
means the Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit E, among the Parent Borrower, the
Subsidiary Loan Parties party thereto and the Collateral Agent.
"Information Memorandum" means the Confidential
Information Memorandum dated June, 2002, relating to the Parent
Borrower and the Transactions.
"Intercompany Transfer" means the dividend or other
intercompany distribution by the Parent Borrower to Holdings, all of
which was used by Holdings as payment, in part, of the Merger
Consideration.
"Interest Election Request" means a request by the
Parent Borrower or a Foreign Subsidiary Borrower, as the case may be,
to convert or continue a Revolving Borrowing or Term Borrowing in
accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any
ABR Loan (other than a Swingline Loan), the last day of each March,
June, September and December, (b) with respect
28
to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the
case of a Eurocurrency Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the
first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any
Eurocurrency Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or
nine or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make an interest
period of such duration available), as the Parent Borrower or a Foreign
Subsidiary Borrower, as the case may be, may elect; provided, that (a)
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 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 and (b) any Interest Period that commences
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Interim Period" means the period commencing on the
Recapitalization Date and ending on December 31, 2000.
"Investors" means Heartland, its Affiliates and the
other entities identified by Heartland as "Investors" to the
Administrative Agent prior to the Recapitalization Date.
"IPO" means an underwritten public offering by
Holdings of Equity Interests of Holdings pursuant to a registration
statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933.
"Issuing Bank" means Chase, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i). The Issuing
29
Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, including with respect
to Foreign Currency Letters of Credit, and in each such case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate. In the event that there is more
than one Issuing Bank at any time, references herein and in the other
Loan Documents to the Issuing Bank shall be deemed to refer to the
Issuing Bank in respect of the applicable Letter of Credit or to all
Issuing Banks, as the context requires. Notwithstanding the foregoing,
each institution listed in Schedule 1.01(a) shall be deemed to be an
Issuing Bank with respect to the Existing Letters of Credit issued by
it.
"Judgment Currency" has the meaning set forth in
Section 10.14.
"Judgment Currency Conversion Date" has the meaning
set forth in Section 10.14.
"LC Disbursement" means a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that have
not yet been reimbursed by or on behalf of the Parent Borrower or the
Foreign Subsidiary Borrowers, as the case may be, at such time. The LC
Exposure of any Revolving Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
"LC Reserve Account" has the meaning set forth in
Section 9.02(a).
"Lender Affiliate" means, (a) with respect to any
Lender, (i) an Affiliate of such Lender or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and
similar extensions of credit in the ordinary course of its business and
is administered or managed by a Lender or an Affiliate of such Lender
and (b) with respect to any Lender that is a fund that invests in bank
loans and similar extensions of credit, any other fund that invests in
bank loans and similar extensions of credit and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" means the Persons listed on Schedule 2.01
and any other Person that shall have become a
30
party hereto pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement. Each Existing Letter of Credit shall be
deemed to constitute a Letter of Credit issued hereunder on the
Effective Date for all purposes of the Loan Documents.
"Leverage Ratio" means, on any date, the ratio of (a)
Total Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of Holdings ended on such
date (or, if such date is not the last day of a fiscal quarter, ended
on the last day of the fiscal quarter of Holdings most recently ended
prior to such date for which financial statements are available).
"LIBO Rate" means, with respect to any Eurocurrency
Borrowing (other than such Borrowings denominated in a Foreign
Currency) for any Interest Period, the rate appearing on Page 3750 of
the Dow Xxxxx Market Service (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits
with a maturity comparable to such Interest Period. With respect to
Eurocurrency Borrowings denominated in a Foreign Currency, the LIBO
Rate for any Interest Period shall be determined by the Administrative
Agent at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period by reference to the British Bankers'
Association Interest Settlement Rates for deposits in the currency of
such Borrowing (as reflected on the applicable Telerate screen) for a
period equal to such Interest Period. In the event that such rate is
not available at such time for any reason, then the "LIBO Rate" with
respect to such Eurocurrency Borrowing for such Interest Period shall
be the rate at which deposits in the applicable currency for the Dollar
Equivalent of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two
31
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement and the
Security Documents.
"Loan Parties" means Holdings, the Parent Borrower,
the Foreign Subsidiary Borrowers and the other Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the
Parent Borrower and the Foreign Subsidiary Borrowers pursuant to this
Agreement.
"Long-Term Indebtedness" means any Indebtedness that,
in accordance with GAAP, constitutes (or, when incurred, constituted) a
long-term liability, including the current portion of any Long-Term
Indebtedness.
"Low Usage Period" means any day that does not fall
within a High Usage Period.
"Margin Stock" shall have the meaning assigned to
such term in Regulation U.
"Masco" means Masco Corporation, a Delaware
corporation, or any successor thereto.
"Material Adverse Effect" means a material adverse
effect on (a) the business, operations, properties, assets, financial
condition, contingent or otherwise, or material agreements of Holdings,
the Parent Borrower and the Subsidiaries (including the Receivables
Subsidiary), taken as a whole (it being understood that any effect on
the business, operations, properties, assets, financial condition,
contingent or otherwise or material agreements of Holdings, the Parent
Borrower and the Subsidiaries (including the Receivables Subsidiary)
resulting from the Asset Dropdown will not constitute a material
adverse effect for purposes of this clause (a)), (b) the ability of any
32
Loan Party in any material respect to perform any of its obligations
under any Loan Document or (c) the rights of or benefits available to
the Lenders under any Loan Document.
"Material Agreements" means (a) any agreements or
instruments relating to Material Indebtedness and (b) the Heartland
Management Agreement.
"Material Indebtedness" means (a) Indebtedness in
respect of the Existing Subordinated Notes, Convertible Debentures, the
Permitted Subordinated Notes and the Permitted Senior Notes, (b)
obligations in respect of the Permitted Receivables Financing and (c)
any other Indebtedness (other than the Loans and Letters of Credit), or
obligations in respect of one or more Hedging Agreements, of any one or
more of Holdings, the Parent Borrower and its Subsidiaries evidencing
an aggregate outstanding principal amount exceeding $15,000,000. For
purposes of determining Material Indebtedness, the "principal amount"
of the obligations of Holdings, the Parent Borrower or any Subsidiary
in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that
Holdings, the Parent Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"Merger" means the merger of Merger Subsidiary with
and into Holdings, with respect to which Holdings was the surviving
entity as contemplated by the Recapitalization Agreement.
"Merger Consideration" means the cash payment to the
Pre-Merger Stockholders in accordance with the Recapitalization
Agreement in an amount not exceeding $609,200,000.
"Merger Subsidiary" means Riverside Acquisition
Corporation, a Delaware corporation, all the Equity Interests of which
are owned by Heartland, its Affiliate and the other Investors.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust,
assignment of leases and rents, leasehold mortgage or other security
document granting a Lien on any Mortgaged Property to secure the
Obligations. Each Mortgage shall be substantially in the form of
Exhibit F with such changes as are necessary under applicable local
law.
33
"Mortgaged Property" means, initially, each parcel of
real property and the improvements thereto owned by a Loan Party as of
the Effective Date, and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted
pursuant to Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a)
the cash proceeds received in respect of such event including (i) any
cash received in respect of any noncash proceeds, but only as and when
received, (ii) in the case of a casualty, insurance proceeds in excess
of $1,000,000 (excluding proceeds arising from the Compac Event), and
(iii) in the case of a condemnation or similar event, condemnation
awards and similar payments, net of (b) the sum of (i) all reasonable
fees and out-of-pocket expenses and premiums paid by Holdings, the
Parent Borrower and the Subsidiaries in connection with such event,
(ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty
or a condemnation or similar proceeding), the amount of all payments
required to be made by Holdings, the Parent Borrower and the
Subsidiaries as a result of such event to repay Indebtedness (other
than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event, and (iii) the amount of all Taxes
paid (or reasonably estimated to be payable) by Holdings, the Parent
Borrower and the Subsidiaries, and the amount of any reserves
established by Holdings, the Parent Borrower and the Subsidiaries to
fund contingent liabilities reasonably estimated to be payable, in each
case during the 24-month period immediately following such event and
that are directly attributable to such event (as determined reasonably
and in good faith by the chief financial officer of Holdings or the
Parent Borrower) to the extent such liabilities are actually paid
within such applicable time periods. Notwithstanding anything to the
contrary set forth above, (i) the proceeds of any sale, transfer or
other disposition of receivables (or any interest therein) pursuant to
any Permitted Receivables Financing shall not be deemed to constitute
Net Proceeds and (ii) the proceeds of any sale, transfer or other
disposition of receivables (or any interest therein) pursuant to any
European Factoring Arrangement shall constitute Net Proceeds only to
the extent such proceeds can be repatriated to the United States
without adverse tax consequences to the Parent Borrower or any
Subsidiary.
34
"Net Working Capital" means, at any date, (a) the
consolidated current assets of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables Subsidiary) as of
such date (excluding cash and Permitted Investments) minus (b) the
consolidated current liabilities of Holdings, the Parent Borrower and
its consolidated Subsidiaries (including the Receivables Subsidiary) as
of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or
negative number. Net Working Capital increases when it becomes more
positive or less negative and decreases when it becomes less positive
or more negative.
"Obligations" has the meaning assigned to such term
in the Security Agreement.
"Other Taxes" means any and all present or future
recording, stamp, documentary, excise, transfer, sales, property or
similar taxes, charges or levies imposed by any Governmental Authority
arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to,
any Loan Document, other than Excluded Taxes.
"Parent Borrower" means Metaldyne Company LLC,
formerly known as Metalync Company LLC, a Delaware limited liability
company.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing
similar functions.
"Perfection Certificate" means a certificate in the
form of Annex I to the Security Agreement or any other form approved by
the Collateral Agent.
"Permitted Acquisition" means any acquisition,
whether by purchase, merger, consolidation or otherwise, by the Parent
Borrower or a Subsidiary of all or substantially all the assets of, or
all the Equity Interests in, a Person or a division, line of business
or other business unit of a Person so long as (a) such acquisition
shall not have been preceded by a tender offer that has not been
approved or otherwise recommended by the board of directors of such
Person, (b) such assets are to be used in, or such Person so acquired
is engaged in, as the case may be, a business of the type conducted by
the Parent Borrower and its Subsidiaries on the date of execution of
this Agreement or in a business reasonably related thereto, (c) such
acquisition shall be financed with proceeds from (i) Revolving Loans
(subject to Section 6.01(a)(i)), the
35
Permitted Subordinated Notes to the extent the issuance thereof is
permitted under the defined term "Permitted Subordinated Notes" and/or
Qualified Holdings Preferred Stock issued and outstanding pursuant to
clause (b) of the definition of Qualified Holdings Preferred Stock,
(ii) Permitted Receivables Financing (subject to Section 6.01(a)(ii)),
(iii) any lease financing permitted hereunder the proceeds of which are
not required to prepay Term Borrowings hereunder, (iv) the issuance of
Equity Interests by Holdings, (v) Excess Cash Flow not required to be
used to prepay Term Loans pursuant to Section 2.11(f), (vi) proceeds
from sales of assets permitted by Section 6.05 that are not required to
be applied toward the repayment of Term Borrowings hereunder or (vii)
any combination thereof and (d) immediately after giving effect
thereto, (i) no Default has occurred and is continuing or would result
therefrom, (ii) all transactions related thereto are consummated in all
material respects in accordance with applicable laws, (iii) all the
Equity Interests (other than Assumed Preferred Stock) of each
Subsidiary formed for the purpose of or resulting from such acquisition
shall be owned directly by the Parent Borrower or a Subsidiary and all
actions required to be taken under Sections 5.12 and 5.13 have been
taken, (iv) Holdings, the Parent Borrower and its Subsidiaries are in
compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Sections 6.13 and 6.14
recomputed as at the last day of the most recently ended fiscal quarter
of Holdings for which financial statements are available, as if such
acquisition (and any related incurrence or repayment of Indebtedness)
had occurred on the first day of each relevant period for testing such
compliance (provided that any acquisition that occurs prior to the
first testing period under such Sections shall be deemed to have
occurred during such first testing period), (v) any Indebtedness or any
preferred stock that is incurred, acquired or assumed in connection
with such acquisition shall be in compliance with Section 6.01 and (vi)
the Parent Borrower has delivered to the Administrative Agent an
officers' certificate to the effect set forth in clauses (a), (b), (c)
and (d) (i) through (vi) above, together with all relevant financial
information for the Person or assets to be acquired.
"Permitted Capital Expenditure Amount" means (a) with
respect to the Interim Period, $30,000,000 and (b) with respect to any
fiscal year thereafter, the sum of (i) the Base Amount for such fiscal
year as specified below, (ii) 20% of Acquired Assets (the "Acquired
Assets Amount") and (iii) for each fiscal year after any Acquired
Assets Amount are initially included in clause (ii) above, 5% of
36
such Acquired Assets Amount, calculated on a cumulative basis.
Fiscal Year Ended Base Amount
--------------------- ---------------
2001 $120,000,000
2002 $115,000,000
2003 $100,000,000
2004 $110,000,000
2005 $115,000,000
2006 $125,000,000
2007 $130,000,000
2008 $140,000,000
2009 $140,000,000
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do
not constitute an Event of Default under clause (k) of Article
VII;
37
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from
the value of the affected property or interfere with the
ordinary conduct of business of the Parent Borrower or any
Subsidiary;
(g) ground leases in respect of real property on
which facilities owned or leased by the Parent Borrower or any
of the Subsidiaries are located, other than any Mortgaged
Property;
(h) Liens in favor or customs and revenue authorities
arising as a matter of law to secure payment of customs duties
in connection with the importation of goods in the ordinary
course of business;
(i) Leases or subleases granted to other Persons and
not interfering in any material respect with the business of
Holdings, the Parent Borrower and the Subsidiaries, taken as a
whole;
(j) banker's liens, rights of set-off or similar
rights, in each case arising by operation of law; and
(k) Liens in favor of a landlord on leasehold
improvements in leased premises;
provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within
one year from the date of acquisition thereof and having, at
such date of acquisition, the highest credit rating obtainable
from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from
the date of acquisition thereof issued or
38
guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States
of America or any State thereof which has a combined capital
and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) securities issued by any state of the United
States of America or any political subdivision of any such
state or any public instrumentality thereof having maturities
of not more than six months from the date of acquisition
thereof and, at the time of acquisition, having the highest
credit rating obtainable from S&P or from Moody's;
(f) securities issued by any foreign government or
any political subdivision of any foreign government or any
public instrumentality thereof having maturities of not more
than six months from the date of acquisition thereof and, at
the time of acquisition, having the highest credit rating
obtainable from S&P or from Moody's;
(g) investments of the quality as those identified on
Schedule 6.04 to the Original Credit Agreement as "Qualified
Foreign Investments" made in the ordinary course of business;
(h) cash; and
(i) investments in funds that invest solely in one or
more types of securities described in clauses (a), (e) and (f)
above.
"Permitted Receivables Documents" means the
Receivable Purchase Agreement, the Receivables Transfer Agreement and
all other documents and agreements relating to the Permitted
Receivables Financing.
"Permitted Receivables Financing" means (a) the sale
by the Parent Borrower and certain Subsidiaries (other than Foreign
Subsidiaries) of accounts receivable to the Receivables Subsidiary
pursuant to the Receivables Sale Agreement and (b) the sale of such
accounts receivable (or participations therein) by the Receivables
Subsidiary to
39
certain purchasers pursuant to the Receivables Transfer Agreement,
provided that the aggregate net investment of the purchasers under the
Receivables Transfer Agreement in such accounts receivables so sold by
the Parent Borrower and such Subsidiaries shall not exceed in the
aggregate $250,000,000.
"Permitted Senior Notes" means Indebtedness of
Holdings or the Parent Borrower, provided that (a) such Indebtedness
and any related Guarantees shall not be secured by any Lien, (b) the
proceeds from such Indebtedness shall be used (i) to prepay Term
Borrowings pursuant to Section 2.11(d)(1), (ii) to repay (subject to
Section 6.01(a)(vii)) Revolving Borrowings or obligations arising in
respect of the Permitted Receivables Financing or (iii) if after giving
effect to the incurrence of such Indebtedness, the Senior Leverage
Ratio is less than 2.75 to 1.00, to effect Permitted Acquisitions
(provided that the aggregate principal amount of Permitted Senior Notes
that can be used for financing Permitted Acquisitions pursuant to this
clause (iii) shall not exceed $250,000,000, less the aggregate
principal amount of Permitted Subordinated Notes issued pursuant to
clause (iv) of the definition thereof), (c) such Indebtedness shall not
have any principal payments due prior to the date that is 12 months
after the Tranche D Maturity Date, whether at maturity or otherwise,
except upon the occurrence of a change of control or similar event
(including asset sales), in each case so long as the provisions
relating to change of control or similar events (including asset sales)
included in the governing instrument of such Indebtedness provide that
the provisions of this Agreement must be satisfied prior to the
satisfaction of such provisions of such Indebtedness and (d) such
Indebtedness bears interest at a fixed rate, which rate shall be, in
the good faith judgment of the Parent Borrower's board of directors,
consistent with the market at the time of issuance for similar
Indebtedness for comparable issuers or borrowers.
"Permitted Subordinated Notes" means Indebtedness of
Holdings or the Parent Borrower, provided that (a) such Indebtedness
and any related Guarantees shall not be secured by any Lien, (b) such
Indebtedness shall be subject to subordination and intercreditor
provisions that are no more favorable to the holders or obligees
thereof than the subordination or intercreditor provisions of the
Existing Subordinated Notes in any material respect, (c) the proceeds
from such Indebtedness shall be used (i) to repurchase, redeem, repay
or otherwise retire the Convertible Debentures, (ii) to repay (subject
to Section 6.01(a)(vii)) Revolving Borrowings or obligations arising in
respect of the Permitted Receivables Financing, (iii) to prepay Term
40
Borrowings pursuant to Section 2.11(a) or (iv) if after giving effect
to the incurrence of such Indebtedness, the Senior Leverage Ratio is
less than 2.75 to 1.00, to effect Permitted Acquisitions (provided that
the aggregate principal amount of Permitted Subordinated Notes that can
be used for financing Permitted Acquisitions pursuant to this clause
(iv) shall not exceed $250,000,000, less the aggregate principal amount
of Permitted Senior Notes issued pursuant to clause (iii) of the
definition thereof), (d) such Indebtedness shall not have any principal
payments due prior to the date that is 12 months after the Tranche D
Maturity Date, whether at maturity or otherwise, except upon the
occurrence of a change of control or similar event (including asset
sales), in each case so long as the provisions relating to change of
control or similar events (including asset sales) included in the
governing instrument of such Indebtedness provide that the provisions
of this Agreement must be satisfied prior to the satisfaction of such
provisions of such Indebtedness and (e) such Indebtedness bears
interest at a fixed rate, which rate shall be, in the good faith
judgment of the Parent Borrower's board of directors, consistent with
the market at the time of issuance for similar Indebtedness for
comparable issuers or borrowers.
"Person" means any natural person, corporation,
limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Parent Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement,
substantially in the form of Exhibit G, among Holdings, the Parent
Borrower, the Subsidiary Loan Parties party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Pre-Merger Stockholders" means the common
stockholders of Holdings and holders of options to acquire common stock
of Holdings immediately prior to the Merger.
41
"Prepayment Event" means:
(a) any sale, transfer or other disposition
(including pursuant to a sale and leaseback transaction) of
any property or asset of Holdings, the Parent Borrower or any
Subsidiary, other than dispositions described in clauses (a),
(b), (c), (d), (e), (f)(ii), (g), (h), (i) and (l) of Section
6.05; or
(b) any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or
similar proceeding of, any property or asset of Holdings, the
Parent Borrower or any Subsidiary having a book value or fair
market value in excess of $1,000,000 (other than damage
arising from the Compac Event), but only to the extent that
the Net Proceeds therefrom have not been applied to repair,
restore or replace such property or asset within 365 days
after such event; or
(c) the incurrence by Holdings, the Parent Borrower
or any Subsidiary of any Indebtedness, other than Indebtedness
permitted by Section 6.01(a) (except for Permitted Senior
Notes);
provided that, in no event shall the sale, transfer or other
disposition of the Saturn Subsidiary or the Saturn Sale constitute a
Prepayment Event.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change
is publicly announced as being effective.
"Qualified Holdings Preferred Stock" means any
preferred capital stock or preferred equity interest of Holdings (a)(i)
that does not provide for any cash dividend payments or other cash
distributions in respect thereof prior to the Tranche D Term Loan
Maturity Date and (ii) that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable
or exercisable) or upon the happening of any event does not (A)(x)
mature or become mandatorily redeemable pursuant to a sinking fund
obligation or otherwise; (y) become convertible or exchangeable at the
option of the holder thereof for Indebtedness or preferred stock that
is not Qualified Holdings Preferred Stock; or (z) become redeemable at
the option of the holder thereof (other than as a result of a
42
change of control event), in whole or in part, in each case on or prior
to the first anniversary of the Tranche D Term Loan Maturity Date and
(B) provide holders thereunder with any rights upon the occurrence of a
"change of control" event prior to the repayment of the Obligations
under the Loan Documents or (b) with respect to which Holdings has
delivered a notice to the Administrative Agent that it has issued
preferred stock or preferred equity interest in lieu of incurring
Indebtedness otherwise permitted by clauses (vii) or (xv) under Section
6.01(a) and, in the case of clause (vii), whether such preferred stock
or preferred equity interests relate to any Permitted Subordinated
Notes or any Permitted Senior Notes, with such notice specifying the
applicable clause; provided that (i) the aggregate liquidation value of
all such preferred stock or preferred equity interest issued pursuant
to this clause (b) shall not exceed at any time the dollar limitation
specified in such applicable clause, less the aggregate principal
amount of Indebtedness outstanding pursuant to such paragraph and (ii)
the terms of such preferred stock or preferred equity interests (x)
shall provide that upon a default thereof, the remedies of the holders
thereof shall be limited to the right to additional representation on
the board of directors of Holdings and (y) shall otherwise be no less
favorable to the Lenders, in the aggregate, than the terms of any
Indebtedness that may be incurred pursuant to such paragraph.
"Quotation Day" means, with respect to any
Eurocurrency Borrowing denominated in a Foreign Currency and any
Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such
Interest Period. If such quotations would normally be given by prime
banks on more than one day, the Quotation Day will be the last of such
days.
"Recapitalization" means the recapitalization of
Holdings effected pursuant to the Merger as contemplated by the
Recapitalization Agreement.
"Recapitalization Agreement" means the
Recapitalization Agreement dated as of August 1, 2000, between Holdings
and Merger Subsidiary, as amended.
"Recapitalization Date" means November 28, 2000.
"Recapitalization Documents" means the
Recapitalization Agreement and the other agreements and documents
relating to the Recapitalization Transactions.
43
"Recapitalization Transactions" means (a) the
Recapitalization, (b) the Specified Asset Sales, (c) the Saturn Sale,
(d) the Asset Dropdown, (e) the Restricted Stock Award and the
performance of the Restricted Stock Obligation, (f) the Intercompany
Transfer, (g) the payment of the Merger Consideration and the Saturn
Proceeds Distribution, (h) the issuance of the Holdings Preferred Stock
to Masco, (i) the repayment of certain Indebtedness, (j) the Equity
Rollover, (k) the execution of the Subordinated Loan Agreement dated as
of the Recapitalization Date between Masco and Holdings, as amended, by
the parties thereto and (l) the other transactions contemplated by the
Recapitalization Agreement.
"Receivables Contribution" means the $37,795,046.27
contribution from Holdings to the Receivables Subsidiary on the
Effective Date.
"Receivables Purchase Agreement" means (a) the
Receivables Purchase Agreement dated as of the Recapitalization Date
among the Receivables Subsidiary, Holdings, the Parent Borrower and the
Subsidiaries party thereto, related to the Permitted Receivables
Financing, as may be amended, supplemented or otherwise modified to the
extent permitted by Section 6.11 and (b) any agreement replacing such
Receivables Purchase Agreement, provided that such replacing agreement
contains terms that are substantially similar to such Receivables
Purchase Agreement and that are otherwise no more adverse to the
Lenders than the applicable terms of such Receivables Purchase
Agreement.
"Receivables Subsidiary" means MTSPC, Inc., a
Delaware corporation.
"Receivables Transfer Agreement" means (a) the
Receivables Transfer Agreement dated as of the Recapitalization Date,
among the Receivables Subsidiary, Holdings and the purchasers party
thereto, relating to the Permitted Receivables Financing, as may be
amended, supplemented or otherwise modified to the extent permitted by
Section 6.11 and (b) any agreement replacing such Receivables Transfer
Agreement, provided that such replacing agreement contains terms that
are substantially similar to such Receivables Transfer Agreement and
that are otherwise no more adverse to the Lenders than the applicable
terms of such Receivables Transfer Agreement.
"Register" has the meaning set forth in Section
10.04.
44
"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 Parties" means, with respect to any
specified Person, such Person's Affiliates and the respective
directors, officers, employees, agents and advisors of such Person and
such Person's Affiliates.
"Release" means any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into or through the environment
(including ambient air, surface water, groundwater, land surface or
subsurface strata) or within any building, structure, facility or
fixture.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing
more than 50% of the sum of the total Revolving Exposures, outstanding
Term Loans and unused Commitments at such time.
"Restricted Indebtedness" means Indebtedness of
Holdings, the Parent Borrower or any Subsidiary, the payment,
prepayment, redemption, repurchase or defeasance of which is restricted
under Section 6.08(b).
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any Equity Interests in Holdings, the Parent Borrower or any
Subsidiary (including the Receivables Subsidiary), or any payment
(whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Equity
Interests in Holdings, the Parent Borrower or any Subsidiary (including
the Receivables Subsidiary) or any option, warrant or other right to
acquire any such Equity Interests in Holdings, the Parent Borrower or
any Subsidiary (including the Receivables Subsidiary).
"Restricted Stock Award" means the grant of
restricted stock awards (including phantom restricted stock awards) of
Holdings in connection with the Recapitalization, having the terms set
forth in the Recapitalization Agreement, in substitution of restricted
stock awards
45
(including phantom restricted stock awards) of Holdings existing
immediately prior to the Recapitalization Date.
"Restricted Stock Obligation" means the obligation
following the Recapitalization Date of Holdings to make deferred cash
payments in an aggregate amount not to exceed $47,500,000 over a 38
month period, plus (i) any accretion thereto and (ii) any deferred
payments required to be made in connection with the Saturn Sale, in
each case in accordance with the Recapitalization Agreement following
the Recapitalization Date, pursuant to the terms of the new restricted
stock granted pursuant to the Restricted Stock Award.
"Revolving Availability Period" means the period from
and including the Effective Date to but excluding the earlier of the
Revolving Maturity Date and the date of termination of the Revolving
Commitments.
"Revolving Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Revolving Loans,
including Foreign Currency Loans, and to acquire participations in
Letters of Credit, including Foreign Currency Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Exposure, including
Foreign Currency Exposure, hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's
Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $250,000,000.
"Revolving Exposure" means, with respect to any
Lender at any time, the sum of the outstanding principal amount of such
Lender's Revolving Loans and its LC Exposure and Swingline Exposure at
such time.
"Revolving Lender" means a Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired,
a Lender with Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause
(ii) of Section 2.01(a).
46
"Revolving Maturity Date" means May 28, 2007, or, if
such day is not a Business Day, the first Business Day thereafter.
"S&P" means Standard & Poor's.
"Saturn" means Saturn Electronics and Engineering
Inc. or any successor thereto by merger or otherwise.
"Saturn Proceeds Distribution" means the cash
payments to be made as a result of any Saturn Sale in an amount based
upon the net proceeds resulting from the Saturn Sale and determined in
accordance with and pursuant to the Recapitalization Agreement.
"Saturn Sale" means one or more sales by the Saturn
Subsidiary of any Equity Interests (or other property received in
respect thereof) in Saturn.
"Saturn Subsidiary" means a special purpose wholly
owned subsidiary of Holdings which will hold any Equity Interests (or
other property received in respect thereof) in Saturn pending the
completion of the Saturn Sale and any other special purpose wholly
owned subsidiary of Holdings that holds any proceeds from the Saturn
Sale not required to be paid to Pre-Merger Stockholders or on account
of taxes from any Saturn Sale.
"Secured Parties" has the meaning assigned to such
term in the Security Agreement.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit H, among Holdings, the Parent
Borrower, the Subsidiary Loan Parties party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement,
the Pledge Agreement, the Mortgages, the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement, each Foreign
Security Document entered into pursuant to Section 2.21 and Section
4.03 and each other security agreement or other instrument or document
executed and delivered pursuant to Section 5.12 or 5.13 to secure any
of the Obligations.
"Senior Indebtedness" means (a) the sum of Total
Indebtedness plus the obligations outstanding under the Permitted
Receivables Financing minus (b) Subordinated Debt.
47
"Senior Leverage Ratio" means, on any date, the ratio
of (a) Senior Indebtedness as of such date to (b) Consolidated EBITDA
for the period of four consecutive fiscal quarters of Holdings ended on
such date (or, if such date is not the last day of a fiscal quarter,
ended on the last day of the fiscal quarter of Holdings most recently
ended prior to such date for which financial statements are available).
"Shareholder Agreement" means the Shareholders
Agreement dated as of the Recapitalization Date, among Holdings,
Heartland and the other parties thereto, as amended from time to time.
"Specified Acquired Property" means any property,
real or personal, (a) that is acquired pursuant to a Permitted
Acquisition or (b) that is owned by the Parent Borrower or any
Subsidiary immediately prior to such Permitted Acquisition and that is
combined with any such acquired property for purposes of any
Acquisition Lease Financing, provided that the fair value of the
property described in this clause (b) shall not exceed in the aggregate
during the term of this Agreement, $25,000,000.
"Specified Asset Sales" means the sale by Holdings of
its equity investments in the Specified Assets.
"Specified Assets" means Advanced Accessories Systems
LLC, Titan International Inc., Delco Remy International Inc., MSX
International Inc., Innovative Coatings Technology, Inc., Qualitor,
Inc. and Tower Automotive Inc.
"Specified Cash" means the cash held by Holdings on
the Recapitalization Date in an amount equal to $3,700,000.
"Specified Obligations" means Obligations consisting
of the principal and interest on Loans, reimbursement obligations in
respect of LC Disbursements and fees.
"Specified Prepayment Event" means any sale, transfer
or other disposition constituting an Acquisition Lease Financing.
"Statutory Reserve Rate" means 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
48
reserves) expressed as a decimal established by the Board (or in the
case of Foreign Currency Borrowings, the applicable Governmental
Authority) to which the Administra tive Agent is subject (a) with
respect to the Base CD 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,
for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages
shall include those imposed pursuant to such Regulation D. Eurocurrency
Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to
time to any Lender under any applicable law, rule or regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Sterling" or "(pound)" means the lawful money of the
United Kingdom.
"Subordinated Debt" means, without duplication, (a)
the Convertible Debentures, (b) the Existing Subordinated Notes and (c)
any other subordinated Indebtedness of Holdings, the Parent Borrower or
any Subsidiary (including the Permitted Subordinated Notes).
"Subordinated Debt Documents" means (a) the
Convertible Debentures Indenture, (b) the Existing Subordinated Notes
Documents and (c) any indenture or other instruments under which any
other Subordinated Debt is issued or incurred.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated
financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity (a)
of which securities or other ownership interests representing more than
50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date,
owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
49
"Subsidiary" means any subsidiary of the Parent
Borrower or Holdings, as the context requires, including the Foreign
Subsidiary Borrowers. Unless expressly otherwise provided, the term
"Subsidiary" shall not include (a) the Receivables Subsidiary, (b) the
Saturn Subsidiary, (c) for so long as Acme Office Group, Inc. ("Acme")
is inactive, holds no assets and conducts no business, Acme and (d)
TriMas.
"Subsidiary Loan Party" means (a) any Subsidiary that
is not a Foreign Subsidiary (other than the Foreign Subsidiary
Borrowers) and (b) any Foreign Subsidiary Borrower and any other
Foreign Subsidiary that executes a guarantee agreement pursuant to
paragraph (c) of the Collateral and Guarantee Requirement.
"Supplemental Indenture" means the supplement to the
Convertible Debenture Indenture among the Parent Borrower, Holdings and
Xxxxxx Guaranty Trust Company of New York, as trustee, pursuant to
which the Parent Borrower will become a co-obligor (together with
Holdings) under Convertible Debenture Indenture.
"Swingline Exposure" means, at any time, the
aggregate principal amount of all Swingline Loans outstanding at such
time. The Swingline Exposure of any Lender at any time shall be its
Applicable Percentage of the total Swingline Exposure at such time.
"Swingline Lender" means Chase, in its capacity as
lender of Swingline Loans hereunder , and Comerica Bank, in its
capacity as lender of Swingline Loans hereunder. References herein and
in the other Loan Documents to the Swingline Lender shall be deemed to
refer to the Swingline Lender in respect of the applicable Swingline
Loan or to all Swingline Lenders, as the context requires.
"Swingline Loan" means a Loan made pursuant to
Section 2.04.
"Synthetic Purchase Agreement" means any swap,
derivative or other agreement or combination of agreements pursuant to
which Holdings, the Parent Borrower or a Subsidiary is or may become
obligated to make (i) any payment (other than in the form of Equity
Interests of Holdings) in connection with a purchase by a third party
from a Person other than Holdings, the Parent Borrower or a Subsidiary
of any Equity Interest or Restricted Indebtedness or (ii) any payment
(other than on account of a permitted purchase by it of any Equity
Interest or any Restricted Indebtedness) the amount of which is
determined by reference
50
to the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no Restricted Stock Award and no phantom
stock or similar plan providing for payments only to current or former
directors, officers, consultants, advisors or employees of Holdings,
the Parent Borrower or the Subsidiaries (or to their heirs or estates)
shall be deemed to be Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes (of
any nature whatsoever), levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
"Term Loans" means Tranche D Term Loans.
"Three-Month Secondary CD Rate" means, 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 is not 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 is not 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 is not a
Business Day, on the next preceding Business Day) by the Administra
tive Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Indebtedness" means, as of any date, the sum
of, without duplication, (a) the aggregate principal amount of
Indebtedness of Holdings, the Parent Borrower and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a
balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of
Indebtedness of Holdings, the Parent Borrower and the Subsidiaries
outstanding as of such date that is not required to be reflected on a
balance sheet in accordance with GAAP, determined on a consolidated
basis; provided that, for purposes of clause (b) above, the term
"Indebtedness" shall not include (i) contingent obligations of
Holdings, the Parent Borrower or any Subsidiary as an account party in
respect of any letter of credit or letter of guaranty unless, without
duplication, such letter of credit or letter of guaranty supports an
obligation that constitutes Indebtedness and (ii) Indebtedness
described in Section
51
6.01(a)(xiv); and provided further that (i) "Total Indebtedness" shall
not include any obligation arising in respect of the Permitted
Receivables Financing or the TriMas Notes and (ii) solely for purposes
of determining compliance with Section 6.14, for purposes of clause (a)
above, the term "Total Indebtedness" shall not include Convertible
Debentures.
"Tranche D Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make a Tranche D Term
Loan hereunder on the Effective Date, expressed as an amount
representing the maximum principal amount of the Tranche D Term Loan to
be made by such Lender hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant
to Section 10.04. The initial amount of each Lender's Tranche D
Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche
D Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche D Commitments is $400,000,000.
"Tranche D Lender" means a Lender with a Tranche D
Commitment or an outstanding Tranche D Term Loan.
"Tranche D Maturity Date" means December 31, 2009, or
if such day is not a Business Day, the first Business Day thereafter.
"Tranche D Term Loan" means a Loan made pursuant to
clause (i) of Section 2.01(a).
"Transactions" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to
be a party, the borrowing of Loans, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder, (b) the execution,
delivery and performance of the Existing Subordinated Notes Documents
by each party thereto, the issuance of the Existing Subordinated Notes
and the use of the proceeds thereof and (c) the other transactions
contemplated hereby.
"TriMas" means TriMas Corporation, a Delaware
corporation.
"TriMas Affiliate Agreements" means the Stock
Purchase Agreement, the Corporate Services Agreement, the Warrant, the
Shareholders Agreement and each agreement and transaction contemplated
by any of the foregoing and entered into in connection with the TriMas
Transactions.
52
"TriMas Available Proceeds" means the Net Proceeds
received by the Parent Borrower from the TriMas Transaction, less the
TriMas Specified Proceeds.
"TriMas Interest" means, at any time, the Equity
Interest of TriMas held by the Parent Borrower or any Subsidiary.
"TriMas Notes" means the senior subordinated notes of
TriMas issued in contemplation of the TriMas Transaction.
"TriMas Specified Proceeds" means the Net Proceeds
received by the Parent Borrower from the TriMas Transaction in an
amount equal to the sum of (x) $255,000,000 and (y) the amount by which
obligations under the Permitted Receivables Financing are required to
be repaid in connection with the reduction of borrowing base capacity
thereunder as a result of the TriMas Transaction.
"TriMas Transaction" means the transactions
contemplated by the Stock Purchase Agreement dated as of May 17, 2002
among Holdings, the Parent Borrower and Heartland Industrial Partners,
L.P. and the related documentation.
"Type", when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
"Withdrawal Liability" means 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.
SECTION 1.02. Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to
by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency
Loan") or by Class and Type (e.g., a "Eurocurrency Revolving Loan").
Borrowings also may be classified and referred to by Class (e.g., a
"Revolving Borrowing") or by Type (e.g., a "Eurocurrency Borrowing") or
by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall
include the corresponding mascu line, feminine and neuter forms. The
words "include",
53
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the
same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement
and (e) the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts
and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Parent Borrower
notifies the Administrative Agent that the Parent Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent
notifies the Parent Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or
in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such
change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00
p.m., New York City time, on each Calculation Date beginning with the
date on which the initial Foreign Currency Borrowing is made or the
initial Foreign Currency Letter of Credit is issued, the Administrative
Agent shall (i) determine the Exchange Rate as of such Calculation Date
with respect to each Foreign Currency and (ii) give notice thereof to
the Revolving Lenders and the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers). The
54
Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a
"Recalculation Date"), shall remain effective until the next succeeding
Recalculation Date, and shall for all purposes of this Agreement (other
than Section 9.01, Section 10.14 or any other provision expressly
requiring the use of a current Exchange Rate) be the Exchange Rates
employed in converting any amounts between dollars and Foreign
Currencies.
(b) Not later than 5:00 p.m., New York City time, on
each Recalculation Date and each date on which Revolving Loans
denominated in any Foreign Currency are made, the Administrative Agent
shall (i) determine the aggregate amount of the Dollar Equivalents of
(A) the principal amounts of the Foreign Currency Loans then
outstanding (after giving effect to any Foreign Currency Loans made or
repaid on such date) (B) the face value of outstanding Foreign Currency
Letters of Credit and (C) unreimbursed drawings in respect of Foreign
Currency Letters of Credit and (ii) notify the Revolving Lenders and
the Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) of the results of such determination.
SECTION 1.06. Redenomination of Certain Foreign
Currencies. (a) Each obligation of any party to this Agreement to make
a payment denominated in the national currency unit of any member state
of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such
adoption (in accordance with the EMU Legislation). If, in relation to
the currency of any such member state, the basis of accrual of interest
expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London Interbank
Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice
with effect from the date on which such member state adopts the Euro as
its lawful currency; provided that if any Foreign Currency Borrowing in
the currency of such member state is outstanding immediately prior to
such date, such replacement shall take effect, with respect to such
Foreign Currency Borrowing, at the end of the then current Interest
Period.
(b) Each provision of this Agreement shall be subject
to such reasonable changes of construction as the Administrative Agent
may from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
55
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms
and conditions set forth herein, each Lender agrees (i) to make a
Tranche D Term Loan to the Parent Borrower on the Effective Date in a
principal amount not exceeding its Tranche D Commitment and (ii) to
make Revolving Loans to the Parent Borrower and the Foreign Subsidiary
Borrowers, as the case may be, from time to time during the Revolving
Availability Period in an aggregate principal amount that will not
result in such Lender's (A) Revolving Exposure exceeding such Lender's
Revolving Commitment or (B) Foreign Currency Exposure exceeding such
Lender's Foreign Currency Commitment.
(b) Within the foregoing limits and subject to the
terms and conditions set forth herein, the Parent Borrower and the
Foreign Subsidiary Borrowers, as the case may be, may borrow, prepay
and reborrow Revolving Loans. Amounts repaid in respect of Term Loans
may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan
(other than a Swingline Loan) shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender's failure to make
Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing
(other than Foreign Currency Borrowings) and Term Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Parent
Borrower may request in accordance herewith; provided that all
Borrowings made on the Effective Date must be made as ABR Borrowings.
All Foreign Currency Borrowings shall be comprised entirely of
Eurocurrency Loans. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurocurrency 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 any Borrower to repay such Loan in accordance with the
terms of this Agreement.
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(c) At the commencement of each Interest Period for
any Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 (or 1,000,000 units
of the applicable Foreign Currency) and not less than $5,000,000 (or
5,000,000 units in the applicable Foreign Currency. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not
less than $5,000,000; provided that (i) an ABR Revolving Borrowing may
be in an aggregate amount that is equal to the entire unused balance of
the total Revolving Commitments and (ii) an ABR Revolving Borrowing or
a Eurocurrency Revolving Borrowing, in the case of Foreign Currency
Letters of Credit, may be in an aggregate amount that is equal to the
amount that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan
shall be in an amount that is an integral multiple of $100,000 and not
less than $500,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time
be more than a total of 12 Eurocurrency Borrowings outstanding.
(d) Notwithstanding any other provision of this
Agreement, none of the Parent Borrower or any Foreign Subsidiary
Borrower shall be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Maturity Date or the Tranche D
Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a
Revolving Borrowing or Term Borrowing, the Parent Borrower or, in the
case of a Foreign Currency Borrowing, the applicable Foreign Subsidiary
Borrower, shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than 12:00 noon, New York City time, one Business Day before the
date of the proposed Borrowing; provided that any such notice of an ABR
Revolving Borrowing to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.05(e) may be given not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Parent Borrower and, in the case
of a Foreign Currency Borrowing, the applicable Foreign
57
Subsidiary Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section
2.02:
(i) whether the requested Borrowing is to be a
Revolving Borrowing or a Tranche D Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing, unless such Borrowing is a
Foreign Currency Borrowing;
(v) if such Borrowing is a Foreign Currency
Borrowing, the relevant Foreign Currency;
(vi) in the case of a Eurocurrency Borrowing, the
initial Interest Period to be applicable thereto, which shall
be a period contemplated by the definition of the term
"Interest Period"; and
(vii) the location and number of the Parent
Borrower's or the applicable Foreign Subsidiary Borrower's, as
the case may be, account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing, unless such Borrowing is
a Foreign Currency Borrowing, in which case such Borrowing shall be a
Eurocurrency Borrowing. If no Interest Period is specified with respect
to any requested Eurocurrency Revolving Borrowing, then the Parent
Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the
terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Parent Borrower from time to time during
the Revolving Availability Period, in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $30,000,000
or (ii) the sum of the total Revolving Exposures exceeding the
58
total Revolving Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Parent Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Parent Borrower
shall notify the Administrative Agent of such request by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City time,
on the day of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Parent Borrower. The Swingline Lender
shall make each Swingline Loan available to the Parent Borrower by
means of a credit to the general deposit account of the Parent Borrower
with the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given
to the Administrative Agent not later than 12:00 noon, New York City
time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Revolving 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 Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving
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 reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever (provided that such payment shall not cause
such Lender's Revolving Exposure to exceed such Lender's Revolving
Commitment). Each Revolving Lender shall comply with its obligation
under this paragraph
59
by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders), and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify the Parent
Borrower 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. Any amounts received by the Swingline Lender from the Parent
Borrower (or other party on behalf of the Parent Borrower) 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 Revolving 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 Parent Borrower
of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject
to the terms and conditions set forth herein, the Parent Borrower may
request the issuance of Letters of Credit for its own account or the
account of a Subsidiary and any Foreign Subsidiary Borrower may request
the issuance of Foreign Currency Letters of Credit for its own account
or the account of a Subsidiary of such Foreign Subsidiary Borrower, in
each case in a form reasonably acceptable to the Administrative Agent
and the Issuing Bank, at any time and from time to time during the
Revolving Availability Period (provided that the Parent Borrower or a
Foreign Subsidiary Borrower, as the case may be, shall be a co-
applicant with respect to each Letter of Credit issued for the account
of or in favor of a Subsidiary that is not a Foreign Subsidiary
Borrower). In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the
Parent Borrower or any Foreign Subsidiary Borrower, as the case may be,
to, or entered into by the Parent Borrower or any Foreign Subsidiary
Borrower, as the case may be, with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall
control.
(b) Notice of Issuance, Amendment, Renewal,
Extension; Certain Conditions. To request the issuance of a
60
Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Parent Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for
doing so have been approved by the Issuing Bank) to the Issuing Bank
and the Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit
to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business
Day), the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of such Letter
of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the
case may be, also shall submit a letter of credit application on the
Issuing Bank's standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $50,000,000,
(ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments and (iii) the total Foreign Currency Exposures shall not
exceed the total Foreign Currency Commitments.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the
date one year after the date of the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days
prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the Issuing Bank
or the Lenders, the Issuing Bank hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In
61
consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the
Issuing Bank and not reimbursed by the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, on the date
due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Parent Borrower or
the applicable Foreign Subsidiary Borrower, as the case may be, for any
reason. Each 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 any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of
a Default or reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any
LC Disbursement in respect of a Letter of Credit, the Parent Borrower
or the applicable Foreign Subsidiary Borrower, as the case may be,
shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00
noon, New York City time, on the date that such LC Disbursement is
made, if the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time or London time (in
the case of Foreign Currency Letters of Credit), on such date, or, if
such notice has not been received by the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, prior to
such time on such date, then not later than 12:00 noon, New York City
time or London time (in the case of Foreign Currency Letters of
Credit), on (i) the Business Day that the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, receives
such notice, if such notice is received prior to 10:00 a.m., New York
City time or London time (in the case of Foreign Currency Letters of
Credit), on the day of receipt, or (ii) the Business Day immediately
following the day that the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, receives such notice, if such
notice is not received prior to such time on the day of receipt;
provided that (i) the Parent Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent
62
amount and, to the extent so financed, the Parent Borrower's obligation
to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan and (ii) such Foreign
Subsidiary Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment
be financed with a Eurocurrency Revolving Borrowing in an equivalent
amount in the applicable Foreign Currency and, to the extent so
financed, such Foreign Subsidiary Borrower's obligation to make such
payment shall be discharged and replaced by the resulting Eurocurrency
Revolving Borrowing. If the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, fails to make such payment
when due, the Administrative Agent shall notify each Revolving Lender
of the applicable LC Disbursement, the payment then due from the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the
unreimbursed LC Disbursement in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Revolving Lenders.
Promptly following receipt by the Administrative Agent of any payment
from the Parent Borrower or any applicable Foreign Subsidiary Borrower,
as the case may be, pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the
extent that Revolving Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans or a Swingline Loan as contemplated above) shall not constitute a
Loan and shall not relieve the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The obligation of the
Parent Borrower or any Foreign Subsidiary Borrower to reimburse LC
Disbursements as provided in paragraph (e) of this Section 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 this
63
Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the 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,
or (iv) 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, or provide
a right of setoff against, the obligations of the Parent Borrower or
any Foreign Subsidiary Borrower hereunder. Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any
of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating
to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, to the extent of any
direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, to the extent
permitted by applicable law) suffered by the Parent Borrower or any
applicable Foreign Subsidiary Borrower, as the case may be, that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of
the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect
to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may,
in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or refuse to accept and
make
64
payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the
Parent Borrower or any applicable Foreign Subsidiary Borrower, as the
case may be, by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Parent Borrower or any
applicable Foreign Subsidiary Borrower, as the case may be, of its
obligation to reimburse the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement (other than with respect to the
timing of such reimbursement obligation set forth in Section 2.05(e)).
(h) Interim Interest. If the Issuing Bank shall make
any LC Disbursement, then, unless the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the
date that the Parent Borrower or any applicable Foreign Subsidiary
Borrower, as the case may be, reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Revolving Loans; provided that,
if the Parent Borrower or any applicable Foreign Subsidiary Borrower,
as the case may be, fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after
the date of payment by any Revolving Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account
of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank; Additional
Issuing Banks. The Issuing Bank may be replaced at any time by written
agreement among the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers), the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. One or more Lenders may be
appointed as additional Issuing Banks by written agreement among the
Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers), the Administrative Agent (whose consent will not be
unreasonably withheld) and the
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Lender that is to be so appointed. The Administrative Agent shall
notify the Lenders of any such replacement of the Issuing Bank or any
such additional Issuing Bank. At the time any such replacement shall
become effective, the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b). From
and after the effective date of any such replacement or addition, as
applicable, (i) the successor or additional Issuing Bank shall have all
the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer
to such successor or such addition or to any previous Issuing Bank, or
to such successor or such addition and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement, but shall not be required to issue
additional Letters of Credit. If at any time there is more than one
Issuing Bank hereunder, the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) may, in its discretion, select which
Issuing Bank is to issue any particular Letter of Credit.
(j) Cash Collateralization. If any Event of Default
shall occur and be continuing, on the Business Day that the Parent
Borrower or any Foreign Subsidiary Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Parent
Borrower and the Foreign Subsidiary Borrowers, as the case may be,
shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders, an
amount in cash in the applicable currency equal to the LC Exposure as
of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Parent Borrower
or any Foreign Subsidiary Borrower described in clause (h) or (i) of
Article VII. Each such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations
of the Parent Borrower and
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the Foreign Subsidiary Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the risk and expense of the Parent Borrower
and the Foreign Subsidiary Borrower, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent
not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Parent Borrower and the Foreign Subsidiary Borrower
for the LC Exposure at such time or, if the maturity of the Loans has
been accelerated (but subject to the consent of Revolving Lenders with
LC Exposure representing greater than 50% of the total LC Exposure), be
applied to satisfy other obligations of the Parent Borrower and the
Foreign Subsidiary Borrower under this Agreement. If the Parent
Borrower or any Foreign Subsidiary Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount plus any accrued interest or realized
profits of such amounts (to the extent not applied as aforesaid) shall
be returned to the Parent Borrower or such Foreign Subsidiary Borrower
within three Business Days after all Events of Default have been cured
or waived. If the Parent Borrower is required to provide an amount of
such collateral hereunder pursuant to Section 2.11(b), such amount plus
any accrued interest or realized profits on account of such amount (to
the extent not applied as aforesaid) shall be returned to the Parent
Borrower as and to the extent that, after giving effect to such return,
the Parent Borrower would remain in compliance with Section 2.11(b) and
no Default or Event of Default shall have occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon,
New York City time, or in the case of Foreign Currency Borrowings,
London time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, by promptly crediting the amounts so received, in like funds, to an
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account of the Parent Borrower or such Foreign Subsidiary Borrower, as
the case may be, maintained with the Administrative Agent in New York
City, or in the case of Foreign Currency Borrowings, London, and
designated by the Parent Borrower or such Foreign Subsidiary Borrower,
in the applicable Borrowing Request; provided that ABR Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, to but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Lender, the greater of (x) the Federal Funds
Effective Rate and (y) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation,
except with respect to Foreign Currency Borrowings, the applicable rate
shall be determined as specified in clause (y) above, or (ii) in the
case of the Parent Borrower or any Foreign Subsidiary Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving
Borrowing and Term Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Parent Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, may elect to convert
such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurocurrency Borrowing,
68
may elect Interest Periods therefor, all as provided in this Section.
The Parent Borrower or the applicable Foreign Subsidiary Borrower, as
the case may be, may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the
case may be, shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, were requesting a Revolving
Borrowing or Term Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the
Administrative Agent and signed by the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected
with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business
Day;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a
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period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurocurrency Borrowing
but does not specify an Interest Period, then the Parent Borrower or
the applicable Foreign Subsidiary Borrower, as the case may be, shall
be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each Lender of
the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If an Interest Election Request with respect to a
Eurocurrency Borrowing is not timely delivered prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing (unless such Borrowing
is a Foreign Currency Borrowing, in which case such Borrowing shall
become due and payable on the last day of such Interest Period).
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Parent Borrower (on
behalf of itself and the Foreign Subsidiary Borrowers), then, so long
as an Event of Default is continuing (i) no outstanding Borrowing
(other than a Foreign Currency Borrowing) may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Borrowing (other than a Foreign Currency Borrowing) shall
be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.08. Termination and Reduction of
Commitments. (a) Unless previously terminated, (i) the Tranche D
Commitments shall terminate at 5:00 p.m., New York City time, on the
Effective Date and (ii) the Revolving Commitments shall terminate on
the Revolving Maturity Date.
(b) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) may at any time terminate, or from time
to time reduce, the Commitments of any Class (it being understood that
reductions of Revolving Commitments will automatically reduce Foreign
Currency Commitments on a pro rata basis); provided that (i) each
reduction of the Commitments of any Class shall be in an amount that is
an integral multiple of $1,000,000 and not less than $5,000,000 and
(ii) the Revolving Commitments shall not be terminated or reduced if,
after giving effect
70
to any concurrent prepayment of the Revolving Loans in accordance with
Section 2.11, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b)
of this Section at least three Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving
Commitments delivered by the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) may state that such notice is
conditioned upon the effectiveness of other credit facilities or the
occurrence of another transaction, in which case such notice may be
revoked by the Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class
shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Parent Borrower and each Foreign Subsidiary Borrower (with
respect to Foreign Currency Loans made to such Foreign Subsidiary
Borrower) hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan of such Lender on the Revolving
Maturity Date, (ii) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Term Loan of such
Lender as provided in Section 2.10 and (iii) to the Swingline Lender
the then unpaid principal amount of each Swingline Loan on the earlier
of the Revolving Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at
least two Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing (other than a Foreign
Currency Borrowing) is made, the Parent Borrower shall repay all
Swingline Loans that were outstanding on the date such Borrowing was
requested.
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(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
the Parent Borrower and the Foreign Subsidiary Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts
in which it shall record (i) the amount of each Loan made hereunder,
the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from the Parent Borrower and the Foreign
Subsidiary Borrowers to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Parent Borrower and the Foreign
Subsidiary Borrowers to repay the Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans of any Class
made by it be evidenced by a promissory note. In such event, the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender,
to such Lender and its registered assigns) and in a form approved by
the Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject
to adjustment pursuant to paragraph (c) of this Section, the Parent
Borrower shall repay Tranche D Term Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date:
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Date Amount
---- ----------
December 31, 2002 ....................... $500,000
June 30, 2003 ........................... $500,000
December 31, 2003 ....................... $500,000
June 30, 2004 ........................... $500,000
December 31, 2004 ....................... $500,000
June 30, 2005 ........................... $500,000
December 31, 2005 ....................... $500,000
June 30, 2006 ........................... $500,000
December 31, 2006 ....................... $500,000
June 30, 2007 ........................... $500,000
December 31, 2007 ....................... $500,000
June 30, 2008 ........................... $500,000
December 31, 2008 ....................... $500,000
June 30, 2009 ........................... $500,000
Tranche D Maturity Date ................. $393,000,000
(b) To the extent not previously paid, all Tranche D
Term Loans shall be due and payable on the Tranche D Maturity Date.
(c) Any prepayment of a Term Borrowing shall be
applied to reduce the subsequent scheduled repayments of the Term
Borrowings to be made pursuant to this Section ratably. Notwithstanding
the foregoing, any prepayment of Eurocurrency Term Borrowings made
pursuant to Section 2.11(a) on a date that is (x) the last day of an
Interest Period and (y) no more than five days prior to a scheduled
amortization payment pursuant to this Section shall be applied, first,
to reduce such scheduled payment, and any excess shall be applied as
required by the first sentence of this Section 2.10(c).
(d) Prior to any repayment of any Term Borrowings
hereunder, the Parent Borrower shall select the Borrowing or Borrowings
to be repaid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of
such repayment. Each repayment of a Borrowing shall be applied ratably
to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount
repaid.
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SECTION 2.11. Prepayment of Loans. (a) The Parent
Borrower and the Foreign Subsidiary Borrowers, as the case may be,
shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this
Section.
(b) In the event and on such occasion that the sum of
the Revolving Exposures exceeds the total Revolving Commitments, the
Parent Borrower and the Foreign Subsidiary Borrowers, as the case may
be, shall prepay Revolving Borrowings or Swingline Borrowings (or, if
no such Borrowings are outstanding, deposit cash collateral in an
account with the Administrative Agent pursuant to Section 2.05(j)) in
an aggregate amount equal to such excess.
(c) In the event that the sum of the Foreign Currency
Exposures exceeds (i) 105% of the total Foreign Currency Commitments
solely as a result of currency fluctuations or (ii) the total Foreign
Currency Commitments (other than as a result of currency fluctuations),
the Foreign Subsidiary Borrowers shall prepay Foreign Currency
Borrowings (or if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to
Section 2.05(j)) in an amount equal to the amount by which the sum of
Foreign Currency Exposures exceed the total Foreign Currency
Commitments no later than in the case of clause (i) above the next
Interest Payment Date and in the case of clause (ii), the first
Business Day that such excess exists.
(d)(1) In the event and on each occasion that any Net
Proceeds are received by or on behalf of Holdings, the Parent Borrower
or any Subsidiary in respect of any Prepayment Event (other than TriMas
Available Proceeds and TriMas Specified Proceeds), the Parent Borrower
shall, within three Business Days after such Net Proceeds are received,
prepay Term Borrowings in an aggregate amount equal to such Net
Proceeds; provided that, in the case of any event described in clause
(a) of the definition of the term Prepayment Event, if Holdings or the
Parent Borrower shall deliver, within such three Business Days, to the
Administrative Agent a certificate of a Financial Officer to the effect
that Holdings, the Parent Borrower and the Subsidiaries intend to apply
the Net Proceeds from such event (or a portion thereof specified in
such certificate), within 365 days after receipt of such Net Proceeds,
to acquire real property, equipment or other tangible assets to be used
in the business of the Parent Borrower and the Subsidiaries, and
certifying that no Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of
the Net Proceeds in
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respect of such event (or the portion of such Net Proceeds specified in
such certificate, if applicable) except to the extent of any such Net
Proceeds therefrom that have not been so applied by the end of such
365-day period, at which time a prepayment shall be required in an
amount equal to such Net Proceeds that have not been so applied.
(2) In the event that $205,000,000 of the TriMas
Specified Proceeds are not applied to repurchase, redeem, repay or
otherwise retire the Convertible Debentures or an irrevocable notice of
redemption and deposit of such proceeds has not been delivered to the
trustee thereunder within 90 days of the date that the TriMas
Transaction is consummated, the Parent Borrower shall promptly
thereafter apply the amount of TriMas Specified Proceeds not so used to
prepay Term Borrowings.
(e) In the event and on each occasion that any Net
Proceeds are received by or on behalf of Holdings, the Parent Borrower
or any Subsidiary in respect of any Specified Prepayment Event, the
Parent Borrower shall, within three Business Days after such Net
Proceeds are received, prepay Term Borrowings in an aggregate amount
equal to such Net Proceeds.
(f) Following the end of each fiscal year of the
Parent Borrower, commencing with the fiscal year ending December 31,
2001, the Parent Borrower shall prepay Term Borrowings in an aggregate
amount equal to 75% of Excess Cash Flow for such fiscal year; provided
that such percentage shall be reduced from 75% to 50% with respect to
the prepayment under this paragraph (f), if the Parent Borrower's
Leverage Ratio as of the last fiscal quarter preceding the applicable
prepayment date is less than 3.00 to 1.00. Each prepayment pursuant to
this paragraph shall be made on or before the date on which financial
statements are delivered pursuant to Section 5.01 with respect to the
fiscal year for which Excess Cash Flow is being calculated (and in any
event within 95 days after the end of such fiscal year).
(g) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) shall select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to paragraph (h) of this Section.
(h) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) shall notify the Administrative Agent
(and, in the case of prepayment of a
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Swingline Loan, the Swingline Lender) by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of
a Eurocurrency Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Borrowing, not later than 12:00 noon, New
York City time, one Business Day before the date of prepayment or (iii)
in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid
and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a
notice of optional prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administra tive Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case
of an advance of a Borrowing of the same Type as provided in Section
2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by
Section 2.13.
SECTION 2.12. Fees. (a) The Parent Borrower (on
behalf of itself and the Foreign Subsidiary Borrowers) agrees to pay to
the Administrative Agent for the account of each Lender a commitment
fee, which shall accrue at the Applicable Rate on the average daily
unused amount of each Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which
such Commitment terminates. Accrued commitment fees shall be payable in
arrears (i) in the case of commitment fees in respect of the Revolving
Commitments, on the last day of March, June, September and December of
each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof and
(ii) in the case of commitment fees in respect of the Tranche D Term
Commitments, on the Effective Date or any earlier date on which such
Commitments terminate. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
For purposes of computing commitment fees with
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respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of
such Lender shall be disregarded for such purpose).
(b) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) agrees to pay (i) to the Administrative
Agent for the account of each Revolving Lender a participation fee with
respect to its participa tions in Letters of Credit, which shall accrue
at the same Applicable Rate as interest on Eurocurrency Revolving Loans
on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during
the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment
terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 0.25% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of
the Revolving Commitments and the date on which there ceases to be any
LC Exposure, as well as the Issuing Bank's standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and
fronting fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third
Business Day following such last day, commencing on the first such date
to occur after the Effective Date; provided that all such fees shall be
payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the
times separately agreed upon between the Parent Borrower and the
Administrative Agent.
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(d) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent
(or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to
the Lenders entitled thereto. Fees paid shall not be refundable under
any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each
ABR Borrowing (including each Swingline Loan) shall bear interest at
the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing
shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by the
Parent Borrower or the Foreign Subsidiary Borrowers, as the case may
be, hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of
Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Revolving
Loan prior to the end of the Revolving Availabil ity Period), accrued
interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the
basis of a year of 360 days, except that (i) interest on a Foreign
Currency Borrowing denominated in Sterling and (ii) interest computed
by reference to the Alternate Base
78
Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to
the commencement of any Interest Period for a Eurocurrency Borrowing
denominated in any currency:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the
Required Lenders that the Adjusted LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Parent
Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) and
the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Parent
Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) and
the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion
of any Borrowing denominated in such currency to, or continuation of
any Borrowing denominated in such currency as, a Eurocurrency Borrowing
shall be ineffective, and any Eurocurrency Borrowing denominated in
such currency that is requested to be continued (A) if such currency is
the dollar, shall be converted to an ABR Borrowing on the last day of
the Interest Period applicable thereto and (B) if such currency is a
Foreign Currency, shall be repaid on the last day of the Interest
Period applicable thereto and (ii) if any Borrowing Request requests a
Eurocurrency Borrowing denominated in such currency (A) if such
currency is the dollar, such Borrowing shall be made as an ABR
Borrowing and (B) if such currency is a Foreign Currency, such
Borrowing Request shall be ineffective.
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SECTION 2.15. Increased Costs. (a) If any Change in
Law shall:
(i) 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,
any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this
Agreement or Eurocurrency Loans 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 cost to
such Lender of making or maintaining any Eurocurrency Loan (or of
maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise), then the Parent Borrower
or the applicable Foreign Subsidiary Borrowers, as the case may be,
will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank determines that
any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing
Bank's capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of this Agreement or the
Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into considera tion such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy), then from time to
time the Parent Borrower or the applicable Foreign Subsidiary
Borrowers, as the case may be, will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
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(c) A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender
or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to
the Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) and shall be conclusive absent manifest error. The Parent
Borrower or the applicable Foreign Subsidiary Borrowers, as the case
may be, shall pay such Lender or the Issuing Bank, as the case may be,
the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation; provided that neither the Parent Borrower nor
any Foreign Subsidiary Borrower shall be required to compensate a
Lender or the Issuing Bank pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that
such Lender or the Issuing Bank, as the case may be, notifies the
Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to
claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive,
then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of
(a) the payment of any principal of any Eurocur rency Loan other than
on the last day of an Interest Period applicable thereto (including as
a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.11(h) and is revoked in accordance
therewith) or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a
request by the Parent Borrower or any Foreign Subsidiary Borrower
pursuant to Section 2.19, then, in any such event, the Parent Borrower
or the applicable Foreign Subsidiary Borrower, as the case may be,
shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an
amount
81
determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for deposits in the applicable
currency of a comparable amount and period from other banks in the
Eurocurrency market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Parent Borrower (on behalf of
itself and the Foreign Subsidiary Borrowers) and shall be conclusive
absent manifest error. The Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall pay such Lender the
amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or
on account of any obligation of the Parent Borrower or any Foreign
Subsidiary Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Parent Borrower or any Foreign
Subsidiary Borrower shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section) the Administrative Agent, Lender or Issuing Bank (as the case
may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Parent Borrower or such Foreign
Subsidiary Borrower, as the case may be, shall make such deductions and
(iii) the Parent Borrower or such Foreign Subsidiary Borrower, as the
case may be, shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Parent Borrower and each Foreign
Subsidiary Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Parent Borrower and each Foreign Subsidiary
Borrower, as the case may be, shall indemnify the Administrative Agent,
each Lender and the Issuing Bank,
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within 10 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any
obligation of the Parent Borrower and each Foreign Subsidiary Borrower,
as the case may be, hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Parent Borrower or any Foreign Subsidiary Borrower, as
the case may be, by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Parent Borrower or any Foreign
Subsidiary Borrower to a Governmental Authority, the Parent Borrower or
such Foreign Subsidiary Borrower, as the case may be, shall deliver to
the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in
which the Parent Borrower or any Foreign Subsidiary Borrower, as the
case may be, is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to
the Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably
requested by the Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) as will permit such payments to be made without
withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender (or a
transferee) determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified
by the Parent Borrower or any Foreign Subsidiary Borrower or with
respect to which the Parent Borrower (on behalf of itself and the
Foreign Subsidiary
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Borrowers) has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Parent Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the
Parent Borrower or any Foreign Subsidiary Borrower under this Section
2.17 with respect to the Taxes or the Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent
or such Lender (or Transferee) and without interest (other than any
interest paid by the relevant Governmental Authority with respect to
such refund); provided, however, that the Parent Borrower or any
Foreign Subsidiary Borrower, upon the request of the Administrative
Agent or such Lender (or Transferee), agrees to repay the amount paid
over to the Parent Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender (or Transferee) in the event the
Administrative Agent or such Lender (or Transferee) is required to
repay such refund to such Governmental Authority. Nothing contained in
this Section 2.17(f) shall require the Administrative Agent or any
Lender to make available its tax returns or any other information
relating to its taxes which it deems confidential to the Parent
Borrower or any other person.
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) shall make each payment required to
be made by it hereunder or under any other Loan Document (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of
amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) on or
before the time expressly required hereunder or under such other Loan
Document for such payment (or, if no such time is expressly required,
prior to 12:00 noon, New York City time, or if the applicable Loan is a
Foreign Currency Loan, London time), on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (unless otherwise
instructed in the case of Foreign Currency Loans), except payments to
be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 10.03 shall be made directly to the Persons entitled
thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent
84
shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on
a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the
period of such extension. Subject to Section 9.01, all payments under
each Loan Document of principal or interest in respect of any Loan or
LC Disbursement shall be made in the currency of such Loan or LC
Disbursement; all other payments hereunder and under each other Loan
Document shall be made in dollars.
(b) If at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disburse ments, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans, Term Loans or
participations in LC Disbursements or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate
amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in
LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans,
Term Loans and participa tions in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made
by the Parent
85
Borrower or any Foreign Subsidiary Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the Parent
Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Parent Borrower and each
Foreign Subsidiary Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Parent Borrower or any Foreign Subsidiary
Borrower, as the case may be, rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Parent Borrower or such Foreign Subsidiary Borrower in
the amount of such participation.
(d) Unless the Administrative Agent shall have
received notice from the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Parent Borrower or any Foreign
Subsidiary Borrower, as the case may be, will not make such payment,
the Administrative Agent may assume that the Parent Borrower or such
Foreign Subsidiary Borrower, as the case may be, has made such payment
on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case
may be, the amount due. In such event, if the Parent Borrower or such
Foreign Subsidiary Borrower, as the case may be, has not in fact made
such payment, then each of the Lenders or the Issuing Bank, as the case
may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank with
interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e),
2.06(b), 2.18(d) or 10.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account
of such Lender to satisfy such Lender's obligations under such
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Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.15, or
if the Parent Borrower or any Foreign Subsidiary Borrower is required
to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then
such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense
and would not otherwise be disadvantageous to such Lender. The Parent
Borrower (on behalf of itself and the Foreign Subsidiary Borrowers)
hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section
2.15, or if the Parent Borrower or any Foreign Subsidiary Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if
any Lender defaults in its obligation to fund Loans hereunder, then the
Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee selected by the Parent
Borrower that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i)
the Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Commitment is being assigned,
the Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Parent Borrower and the
Foreign Subsidiary Borrowers (in the case
87
of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will
result in a material reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Parent Borrower or any Foreign
Subsidiary Borrower to require such assignment and delegation cease to
apply.
SECTION 2.20. Additional Reserve Costs. (a) If and so
long as any Revolving Lender is required to make special deposits with
the Bank of England, to maintain reserve asset ratios or to pay fees,
in each case in respect of such Revolving Lender's Foreign Currency
Loans, such Revolving Lender may require the relevant Foreign
Subsidiary Borrower to pay, contemporaneously with each payment of
interest on each of such Foreign Currency Loans, additional interest on
such Foreign Currency Loan at a rate per annum equal to the Mandatory
Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit I hereto.
(b) If and so long as any Revolving Lender is
required to comply with reserve assets, liquidity, cash margin or other
requirements of any monetary or other authority (including any such
requirement imposed by the European Central Bank or the European System
of Central Banks, but excluding requirements reflected in the Statutory
Reserve Rate or the Mandatory Costs Rate) in respect of any of such
Revolving Lender's Foreign Currency Loans, such Revolving Lender may
require the relevant Foreign Subsidiary Borrower to pay,
contemporaneously with each payment of interest on each of such
Revolving Lender's Foreign Currency Loans subject to such requirements,
additional interest on such Foreign Currency Loan at a rate per annum
specified by such Revolving Lender to be the cost to such Revolving
Lender of complying with such requirements in relation to such Foreign
Currency Loan.
(c) Any additional interest owed pursuant to
paragraph (a) or (b) above shall be determined by the relevant
Revolving Lender, which determination shall be conclusive absent
manifest error, and notified to the Parent Borrower (on behalf of the
relevant Foreign Subsidiary Borrower) (with a copy to the
Administrative Agent)) at least five Business Days before each date on
which interest is payable for the relevant Foreign Currency Loan, and
such additional interest so notified by such Revolving Lender shall be
payable to the Administrative Agent for the account
88
of such Revolving Lender on each date on which interest is payable for
such Foreign Currency Loan.
SECTION 2.21. Designation of Foreign Subsidiary
Borrowers. The Parent Borrower may at any time and from time to time
designate any Foreign Subsidiary as a Foreign Subsidiary Borrower, by
delivery to the Administrative Agent of a Foreign Subsidiary Borrowing
Agreement executed by such Foreign Subsidiary and the Parent Borrower,
and upon such delivery such Foreign Subsidiary shall for all purposes
of this Agreement and the other Loan Documents be a Foreign Subsidiary
Borrower until the Parent Borrower shall terminate such designation
pursuant to a termination agreement satisfactory to the Administrative
Agent, whereupon such Foreign Subsidiary shall cease to be a Foreign
Subsidiary Borrower and a party to this Agreement and any other
applicable Loan Documents. Notwithstanding the preceding sentence, no
such termination will become effective as to any Foreign Subsidiary
Borrower at a time when any principal of or interest on any Loan to
such Foreign Subsidiary Borrower is outstanding. As soon as practicable
upon receipt of a Foreign Subsidiary Borrowing Agreement, the
Administrative Agent shall send a copy thereof to each Lender.
SECTION 2.22. Foreign Subsidiary Borrower Costs. (a)
If the cost to any Revolving Lender of making or maintaining any
Foreign Currency Loan to a Foreign Subsidiary Borrower is increased (or
the amount of any sum received or receivable by any Revolving Lender
(or its applicable lending office) is reduced) by an amount deemed in
good faith by such Revolving Lender to be material, by reason of the
fact that such Foreign Subsidiary Borrower is incorporated in, or
conducts business in, a jurisdiction outside the United States, such
Foreign Subsidiary Borrower shall indemnify such Revolving Lender for
such increased cost or reduction within 15 days after demand by such
Revolving Lender (with a copy to the Administrative Agent). A
certificate of such Revolving Lender claiming compensation under this
paragraph and setting forth the additional amount or amounts to be paid
to it hereunder (and the basis for the calculation of such amount or
amounts) shall be conclusive in the absence of manifest error.
(b) Each Revolving Lender will promptly notify the
Parent Borrower (on behalf of the relevant Foreign Subsidiary Borrower)
and the Administrative Agent of any event of which it has knowledge
that will entitle such Revolving Lender to additional interest or
payments pursuant to paragraph (a) above, but in any event within 45
days after such Revolving Lender obtains actual knowledge
89
thereof; provided that (i) if any Revolving Lender fails to give such
notice within 45 days after it obtains actual knowledge of such an
event, such Revolving Lender shall, with respect to compensation
payable pursuant to this Section 2.21 in respect of any costs resulting
from such event, only be entitled to payment under this Section 2.21
for costs incurred from and after the date 45 days prior to the date
that such Revolving Lender does give such notice and (ii) each
Revolving Lender will designate a different applicable lending office,
if, in the judgment of such Revolving Lender, such designation will
avoid the need for, or reduce the amount of, such compensation and will
not be otherwise disadvantageous to such Revolving Lender.
ARTICLE III
Representations and Warranties
Each of Holdings, the Parent Borrower and each
Foreign Subsidiary Borrower (as to itself only) represents and warrants
to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings,
the Parent Borrower and its Subsidiaries (including the Receivables
Subsidiary) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions to be entered into by each Loan Party are within such Loan
Party's powers and have been duly authorized by all necessary action.
This Agreement has been duly executed and delivered by each of Holdings
and the Parent Borrower and constitutes, and each other Loan Document
to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Parent Borrower or such Loan Party (as the
case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding
in equity or at law.
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SECTION 3.03. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except (x) such as have been obtained or made and are in
full force and effect, (y) filings necessary to perfect Liens created
under the Loan Documents and (z) consents, approvals, registrations,
filings or actions the failure of which to obtain or perform could not
reasonably be expected to result in a Material Adverse Effect, (b) will
not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of Holdings, the Parent Borrower or any
of its Subsidiaries (including the Receivables Subsidiary) or any order
of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon
Holdings, the Parent Borrower or any of its Subsidiaries (including the
Receivables Subsidiary) or its assets, or give rise to a right
thereunder to require any payment to be made by Holdings, the Parent
Borrower or any of its Subsidiaries (including the Receivables
Subsidiary), except for violations, defaults or the creation of such
rights that could not reasonably be expected to result in a Material
Adverse Effect, and (d) will not result in the creation or imposition
of any Lien on any asset of Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary), except Liens
created under the Loan Documents and Liens permitted by Section 6.02.
SECTION 3.04. Financial Condition; No Material
Adverse Change. (a) Holdings has heretofore furnished to the Lenders
its consolidated balance sheet and statements of income, stockholders
equity and cash flows (i) as of and for the fiscal year ended December
31, 2001, reported on by PriceWaterhouseCoopers LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended March 31, 2002, certified by its chief
financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and
cash flows of Holdings and its consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) Except as disclosed in the financial statements
referred to above or the notes thereto or in the Information
Memorandum, except for the Disclosed Matters and except for liabilities
arising as a result of the Transac tions, after giving effect to the
Transactions, none of Holdings, the Parent Borrower or the Subsidiaries
(including
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the Receivables Subsidiary and the Saturn Subsidiary) has, as of the
Effective Date, any contingent liabilities that would be material to
Holdings, the Parent Borrower and the Subsidiaries (including the
Receivables Subsidiary and the Saturn Subsidiary), taken as a whole.
(c) Since December 31, 2001, there has been no event,
change or occurrence that, individually or in the aggregate, has had or
could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. Properties. (a) Each of Holdings, the
Parent Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to
its business (including its Mortgaged Properties), except for minor
defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of Holdings, the Parent Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its
business, and the use thereof by Holdings, the Parent Borrower and its
Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) As of the Effective Date, neither Holdings, the
Parent Borrower nor any of its Subsidiaries has received written notice
of any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of
condemnation. Neither any Mortgaged Property nor any interest therein
is subject to any right of first refusal, option or other contractual
right to purchase such Mortgaged Property or interest therein.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the
knowledge of Holdings or the Parent Borrower, threatened against or
affecting Holdings, the Parent Borrower or any of its Subsidiaries
(including the Receivables Subsidiary) (i) as to which there is a
reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or
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(ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect, neither Holdings, the Parent Borrower nor any of its
Subsidiaries (including the Receivables Subsidiary) (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of the Original Credit Agreement,
there has been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agree ments.
Each of Holdings, the Parent Borrower and its Subsidiaries (including
the Receivables Subsidiary) is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither Holdings, the Parent Borrower nor any of its Subsidiaries
(including the Receivables Subsidiary) is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to
regula tion under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Holdings, the Parent
Borrower and its Subsidiaries (including the Receivables Subsidiary)
has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) any Taxes that are being
contested in good faith by appropriate proceedings and for which
Holdings, the Parent Borrower or such Subsidiary (including the
Receivables Subsidiaries), as applicable, has set aside on its books
adequate reserves or (b) to the
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extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or
is reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse
Effect. As of the Recapitalization Date, the present value of all
accumulated benefit obligations under any one Plan (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $23,000,000 the
fair market value of the assets of such Plan, and the present value of
all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $40,000,000 the
fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. Each of Holdings and the
Parent Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which Holdings, the
Parent Borrower or any of its Subsidiaries (including the Receivables
Subsidiary) is subject, and all other matters known to any of them,
that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation
of this Agreement or any other Loan Document or delivered hereunder or
thereunder (as modified or supple mented by other information so
furnished) contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information,
Holdings and the Parent Borrower represent only that such information
was prepared in good faith based upon assumptions believed to be
reasonable at the time such projections were prepared.
SECTION 3.12. Subsidiaries. Holdings does not have
any subsidiaries other than the Parent Borrower, the Saturn Subsidiary
and the Parent Borrower's Subsidiaries. Schedule 3.12 sets forth the
name of, and the ownership interest of the Parent Borrower in, each
Subsidiary of the
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Parent Borrower and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Effective Date.
SECTION 3.13. Insurance. As of the Effective Date,
all premiums due in respect of material insurance policies maintained
by or on behalf of Holdings, the Parent Borrower and the Subsidiaries
as of the Effective Date have been paid.
SECTION 3.14. Labor Matters. As of the Effective
Date, there are no strikes, lockouts or slowdowns against Holdings, the
Parent Borrower or any Subsidiary pending or, to the knowledge of
Holdings or the Parent Borrower, threatened that could reasonably be
expected to have a Material Adverse Effect. All payments due from
Holdings, the Parent Borrower or any Subsidiary, or for which any claim
may be made against Holdings, the Parent Borrower or any Subsidiary, on
account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of
Holdings, the Parent Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings, the Parent Borrower or any
Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the
consummation of the Transactions to occur on the Effective Date and
immediately following the making of each Loan made on the Effective
Date and after giving effect to the application of the proceeds of such
Loans, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the
property of each Loan Party will be greater than the amount that will
be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will
be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured;
and (d) the Loan Parties, on a consolidated basis, will not have
unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date.
SECTION 3.16. Senior Indebtedness. To
the extent any Subordinated Debt is outstanding, the Obligations
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constitute "Senior Indebtedness" under and as defined in the
Subordinated Debt Documents.
SECTION 3.17. Security Documents. (a) The Pledge
Agreement is effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral (as defined in the Pledge
Agreement) and, when such Collateral is delivered to the Collateral
Agent and for so long as the Collateral Agent remains in possession of
such Collateral, the security interest created by the Pledge Agreement
shall constitute a perfected first priority security interest in all
right, title and interest of the pledgor thereunder in such Collateral,
in each case prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in
favor of the Collateral Agent, for the benefit of the Secured Parties,
a legal, valid and enforceable security interest in the Collateral (as
defined in the Security Agreement) and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to
the Perfection Certificate, the security interest created by the
Security Agreement shall constitute a perfected security interest in
all right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property (as defined in the
Security Agreement)), in each case prior and superior in right to any
other Person, other than with respect to Liens permitted by Section
6.02.
(c) When the Security Agreement (or a summary
thereof) is filed in the United States Patent and Trademark Office and
the United States Copyright Office and the financing statements
referred to in Section 3.17(b) above are appropriately filed, the
security interest created by the Security Agreement shall constitute a
perfected security interest in all right, title and interest of the
grantors thereunder in the Intellectual Property (as defined in the
Security Agreement) in which a security interest may be perfected by
filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and
Trademark Office or the United States Copyright Office, as applicable,
in each case prior and superior in right to any other Person (it being
understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office and subsequent
UCC filings may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan
Parties after the Effective Date), other than with respect to Liens
permitted by Section 6.02.
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(d) The Mortgages are effective to create, subject to
the exceptions listed in each title insurance policy covering such
Mortgage, in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable Lien on all of the
applicable mortgagor's right, title and interest in and to the
Mortgaged Properties thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.17(d), the
Lien created by each Mortgage shall constitute a perfected Lien on all
right, title and interest of the applicable mortgagor in such Mortgaged
Properties and the proceeds thereof, in each case prior and superior in
right to any other Person, other than with respect to the rights of
Persons pursuant to Liens permitted by Section 6.02.
(e) Following the execution of any Foreign Security
Document pursuant to Section 4.03, each Foreign Security Document shall
be effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable security
interest in the applicable collateral covered by such Foreign Security
Document, and when the actions specified in such Foreign Security
Document, if any, are completed, the security interest created by such
Foreign Security Document shall constitute a perfected security
interest in all right, title and interest of the grantors thereunder in
such collateral to the full extent possible under the laws of the
applicable foreign jurisdiction, in each case prior and superior in
right to any other Person, other than with respect to Liens permitted
by Section 6.02.
SECTION 3.18. Federal Reserve Regulations. (a) None
of Holdings, the Parent Borrower or any of the Subsidiaries (including
the Receivables Subsidiary) is engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter
of Credit will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of the provisions of the Regulations of the Board, including
Regulation U or X.
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ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The amendments to the
Original Credit Agreement effected hereby and the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance
with Section 10.02):
(a) The Administrative Agent (or its counsel) shall
have received from the Required Lenders and each Tranche D
Lender either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of Holdings
and the Parent Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section
4.02.
(d) The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party hereunder
or under any other Loan Document.
(e) The Administrative Agent shall have received
evidence that the insurance required by Section 5.07 and the
Security Documents is in effect.
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(f) All material consents and approvals required to
be obtained from any Governmental Authority or other Person in
connection with the Transactions shall have been obtained, and
all applicable waiting periods and appeal periods shall have
expired and there shall be no governmental or judicial action,
actual or threatened, that could reasonably be expected to
restrain, prevent or impose burdensome conditions on the
Transactions and the other transactions contemplated hereby.
(g) The Parent Borrower shall have received gross
cash proceeds from the issuance of the Existing Subordinated
Notes in a public offering or Rule 144A offering or other
private placement, in an amount of not less than $250,000,000,
to one or more holders reasonably satisfactory to the
Administrative Agent. The terms of the Existing Subordinated
Notes Documents shall be reasonably satisfactory in all
material respects to the Administrative Agent (it being
understood that the terms specified in the confidential
offering circular related to the Existing Subordinated Notes
dated June 13, 2002 are satisfactory).
(h) After giving effect to the Transactions, none of
Holdings, the Parent Borrower or any of the Subsidiaries shall
have outstanding any shares of preferred stock or any
Indebtedness to a Person other than Holdings, the Parent
Borrower or any Subsidiary, other than (i) Indebtedness
incurred under the Loan Documents, (ii) the Convertible
Debentures, (iii) the Holdings Preferred Stock, (iv) the
Permitted Receivables Financing, (v) the Existing Subordinated
Notes and (vi) Indebtedness incurred and outstanding as of the
date hereof in compliance with Section 6.01 of the Original
Credit Agreement.
(i) There shall be no litigation or administrative
proceeding that has had or is reasonably likely to have a
material adverse effect on the ability of the parties to
consummate the Transactions or the other transactions
contemplated hereby.
(j) The consummation of the Transactions shall not
(a) violate any applicable law, statute, rule or regulation or
(b) conflict with, or result in a default or event of default
under, any material indenture or other agreement of Holdings
or any of its subsidiaries.
Notwithstanding the foregoing, the amendments to the Original Credit
Agreement that would be effected hereby and the obligations of the
Lenders to make the Loans shall not
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become effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 10.02) at or prior to 6:00 p.m., New
York City time, on June 28, 2002 (and, in the event such conditions are
not so satisfied or waived, the Original Credit Agreement shall remain
in effect without giving effect to any amendments thereto contemplated
hereby). The Administrative Agent shall notify the Parent Borrower and
the Lenders of the Effective Date, and such notice shall be conclusive
and binding.
SECTION 4.02. Each Credit Event. The obligation of
each Lender to make a Loan on the occasion of any Borrowing (other than
(i) any Revolving Borrowing made pursuant to Section 2.05(d) and (ii)
any continuation or conversion of a Borrowing pursuant to the terms
hereof that does not result in the increase of the aggregate principal
amount of the Borrowings then outstanding), and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to
receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:
(a) The representations and warranties of each Loan
Party set forth in the Loan Documents shall be true and
correct on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal
or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and
warranty by Holdings and the Parent Borrower on the date thereof as to
the matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Credit Events Relating to Foreign
Subsidiary Borrowers. The obligation of each Lender to make Loans to
any Foreign Subsidiary Borrower is subject to the satisfaction of the
following conditions:
(a) With respect to the initial Credit
Event relating to such Foreign Subsidiary Borrower;
(i) the Administrative Agent (or its
counsel) shall have received such Foreign Subsidiary
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Borrower's Foreign Subsidiary Borrowing Agreement
duly executed by all parties thereto; and
(ii) the Administrative Agent shall have
received such documents (including legal opinions)
and certificates as the Administrative Agent or its
counsel may reasonably request relating to the
formation, existence and good standing of such
Foreign Subsidiary Borrower, the authorization of the
Foreign Currency Borrowings as they relate to such
Foreign Subsidiary Borrower and any other legal
matters relating to such Foreign Subsidiary Borrower
or its Foreign Subsidiary Borrowing Agreement, all in
form and substance satisfactory to the Administrative
Agent and its counsel.
(b) With respect to any Credit Event following which
(x) such Foreign Subsidiary Borrower will have borrowed more
than the Dollar Equivalent of $5,000,000 of Foreign Currency
Borrowings or (y) the aggregate amount of outstanding Foreign
Currency Borrowings exceeds the Dollar Equivalent of
$15,000,000, the Administrative Agent shall be satisfied that
the Foreign Security Collateral and Guarantee Agreement shall
be satisfied with respect to such Foreign Subsidiary Borrower
in the case of clause (x) and all Foreign Subsidiary Borrowers
in the case of clause (y).
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated
and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall
have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Holdings, the Parent Borrower and each Foreign
Subsidiary Borrower (as to itself only) covenants and agrees with the
Lenders that:
SECTION 5.01. Financial Statements and Other
Information. Holdings or the Parent Borrower will furnish to the
Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal year
of Holdings, its audited consolidated and unaudited
consolidating balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end
of and for such year, setting forth
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in each case in comparative form the figures for the previous
fiscal year, all reported on by PriceWaterhouseCoopers LLP or
other independent public accountants of recognized national
standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects
the financial condition and results of operations of Holdings
and its consolidated subsi diaries on a consolidated basis in
accordance with GAAP consistently applied, other than any
change in the application of GAAP due solely to Holdings', the
Parent Borrower's and the Subsidiaries' transition from
"recapitalization accounting" to "purchase accounting" (it is
understood that such financial statements shall also present
separately financial information with respect to the
Receivables Subsidiary and the Saturn Subsidiary);
(b) within 50 days after the end of each of the first
three fiscal quarters of each fiscal year of Holdings, its
consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of
the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the
financial condition and results of operations of Holdings and
its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes (it is
understood that such financial statements shall also present
separately financial information with respect to the
Receivables Subsidiary and the Saturn Subsidiary);
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a
Financial Officer of Holdings or the Parent Borrower (i)
certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.13, 6.14 and 6.15,
(iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of
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Holdings' audited financial statements referred to in Section
3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying
such certificate and (iv) identifying all Subsidiaries
existing on the date of such certificate and indicating, for
each such Subsidiary, whether such Subsidiary is a Subsidiary
Loan Party or a Foreign Subsidiary and whether such Subsidiary
was formed or acquired since the end of the previous fiscal
quarter;
(d) concurrently with any delivery of financial
statements under clause (a) above, (i) a certificate of the
accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of
their examination of such financial statements of any Default
(which certificate may be limited to the extent required by
accounting rules or guidelines) and (ii) a certificate of a
Financial Officer of Holdings or the Parent Borrower (A)
identifying any parcels of real property or improvements
thereto with a value exceeding $750,000 that have been
acquired by any Loan Party since the end of the previous
fiscal year, (B) identifying any changes of the type described
in Section 5.03(a) that have not been previously reported by
the Parent Borrower, (C) identifying any Permitted
Acquisitions that have been consummated since the end of the
previous fiscal year, including the date on which each such
Permitted Acquisition was consummated and the consideration
therefor, (D) identifying any Intellectual Property (as
defined in the Security Agreement) with respect to which a
notice is required to be delivered under the Security
Agreement and has not been previously delivered and (E)
identifying any Prepayment Events that have occurred since the
end of the previous fiscal year and setting forth a reasonably
detailed calculation of the Net Proceeds received from
Prepayment Events since the end of such previous fiscal year;
(e) at least 30 days prior to the commencement of
each fiscal year of Holdings (commencing with the fiscal year
ending December 31, 2002), a detailed consolidated budget for
such fiscal year (including a projected consolidated balance
sheet and related statements of projected operations and cash
flow as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such
budget) and, promptly when available, any material
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revisions of such budget that have been approved by senior
management of Holdings;
(f) promptly after the same become publicly
available, copies of all periodic and other reports, proxy
statements and other materials filed by Holdings, the Parent
Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, as the case may be; and
(g) promptly following any request therefor, such
other information regarding the operations, business affairs
and financial condition of Holdings, the Parent Borrower or
any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. Holdings
and the Parent Borrower will furnish to the Administrative Agent and
each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Govern mental
Authority against or affecting Holdings, the Parent Borrower
or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of Holdings, the
Parent Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000; and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the
Parent Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with
respect thereto.
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SECTION 5.03. Information Regarding Collateral. (a)
The Parent Borrower will furnish to the Administrative Agent prompt
written notice of any change (i) in any Loan Party's legal name or in
any trade name used to identify it in the conduct of its business or in
the ownership of its properties, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral
owned by it or any office or facility at which Collateral owned by it
is located (including the establish ment of any such new office or
facility), (iii) in any Loan Party's identity or structure or (iv) in
any Loan Party's Federal Taxpayer Identification Number. The Parent
Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless written notice has been delivered to the
Collateral Agent, together with all applicable information to enable
the Administrative Agent to make all filings under the Uniform
Commercial Code or otherwise that are required in order for the
Collateral Agent (on behalf of the Secured Parties) to continue at all
times following such change to have a valid, legal and perfected
security interest in all the Collateral.
(b) Each year, at the time of delivery of annual
financial statements with respect to the preceding fiscal year pursuant
to clause (a) of Section 5.01, Holdings (on behalf of itself and the
other Loan Parties) shall deliver to the Administrative Agent a
certificate of a Financial Officer of Holdings (i) setting forth the
information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information since the
date of the Perfection Certificate delivered on the Effective Date or
the date of the most recent certificate delivered pursuant to this
Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description
of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified
pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Agreement for a
period of not less than 18 months after the date of such certificate
(except as noted therein with respect to any continuation statements to
be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Each of
Holdings, the Parent Borrower and the Foreign Subsidiary Borrowers
will, and will cause each of the
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Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence
and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names the loss of which would have a
Material Adverse Effect; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under
Section 6.03 or disposition by Section 6.05. Holdings and the Parent
Borrower will cause all the Equity Interests of the Foreign Subsidiary
Borrowers to be owned, directly or indirectly, by the Parent Borrower
or any Subsidiary.
SECTION 5.05. Payment of Obligations. Each of
Holdings, the Parent Borrower and the Foreign Subsidiary Borrowers
will, and will cause each of the Subsidiaries (including the
Receivables Subsidiary and the Saturn Subsidiary) to, pay its
Indebtedness and other obligations, including Tax liabilities, before
the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropri
ate proceedings, (b) Holdings, the Parent Borrower the Foreign
Subsidiary Borrowers or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (c)
such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and
(d) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Each of
Holdings, the Parent Borrower and the Foreign Subsidiary Borrowers
will, and will cause each of the Subsidiaries to, keep and maintain all
property material to the conduct of their business, taken as a whole,
in good working order and condition, ordinary wear and tear excepted;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03
or disposition by Section 6.05.
SECTION 5.07. Insurance. Each of Holdings, the Parent
Borrower and the Foreign Subsidiary Borrowers will, and will cause each
of the Subsidiaries to, maintain insurance in such amounts (with no
greater risk retention) and against such risks as are customarily
maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations, except
where the failure to do so could not reasonably be expected to result
in a Material Adverse Effect. Such insurance shall be maintained with
financially sound and reputable insurance companies, except that a
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portion of such insurance program (not to exceed that which is
customary in the case of companies engaged in the same or similar
business or having similar properties similarly situated) may be
effected through self-insurance, provided adequate reserves therefor,
in accordance with GAAP, are maintained. In addition, each of Holdings,
the Parent Borrower and the Foreign Subsidiary Borrowers will, and will
cause each of its Subsidiaries to, maintain all insurance required to
be maintained pursuant to the Security Documents. The Parent Borrower
will furnish to the Lenders, upon request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained. All
insurance policies or certificates (or certified copies thereof) with
respect to such insurance shall be endorsed to the Collateral Agent's
reasonable satisfaction for the benefit of the Lenders (including,
without limitation, by naming the Collateral Agent as loss payee or
additional insured, as appropriate).
SECTION 5.08. Casualty and Condemnation. The Parent
Borrower (a) will furnish to the Administrative Agent and the Lenders
prompt written notice of casualty or other insured damage to any
material portion of any Collateral having a book value or fair market
value of $1,000,000 or more or the commencement of any action or
proceeding for the taking of any Collateral having a book value or fair
market value of $1,000,000 or more or any part thereof or interest
therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event
(whether in the form of insurance proceeds, condemnation awards or
otherwise) are collected and applied in accordance with the applicable
provisions of this Agreement and the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit
Rights. Each of Holdings, the Parent Borrower and the Foreign
Subsidiary Borrowers will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its
business and activities. Each of Holdings, the Parent Borrower and the
Foreign Subsidiary Borrowers will, and will cause each of the
Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its
books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
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SECTION 5.10. Compliance with Laws. Each of Holdings,
the Parent Borrower and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it
or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit.
The Parent Borrower will use on the Effective Date the proceeds of the
Tranche D Term Loans, together with the proceeds of the Existing
Subordinated Notes, only for (i) the Existing Term Loans Prepayment,
(ii) the Receivables Contribution and (iii) the payment of fees and
expenses payable in connection with the Existing Term Loans Prepayment
and the Receivables Contribution, and for cash on hand. The proceeds of
the Revolving Loans and Swingline Loans will be used, subject to
Sections 5.15 and 6.12, only for general corporate purposes, including
to repurchase, redeem, repay or otherwise retire Convertible
Debentures, and to the extent permitted by Section 6.01(a)(i),
Permitted Acquisitions. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations
T, U and X.
SECTION 5.12. Additional Subsidiaries. If any
additional Subsidiary is formed or acquired after the Effective Date,
the Parent Borrower will, within five Business Days after such
Subsidiary is formed or acquired, notify the Administrative Agent and
the Lenders thereof and, within five Business Days after such
Subsidiary is formed or acquired, cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan
Party.
SECTION 5.13. Further Assurances. (a) Each of
Holdings, the Parent Borrower and the Foreign Subsidiary Borrowers
will, and will cause each Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording
of financing statements, fixture filings, mortgages, deeds of trust,
landlord waivers and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan
Parties. Holdings, the Parent Borrower and the Foreign
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Subsidiary Borrowers also agree to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens
created or intended to be created by the Security Documents.
(b) If any assets (including any real property or
improvements thereto or any interest therein) having a book value or
fair market value of $1,000,000 or more in the aggregate are acquired
by the Parent Borrower or any Subsidiary Loan Party after the Effective
Date or through the acquisition of a Subsidiary Loan Party under
Section 5.12 (other than, in each case, assets constituting Collateral
under the Security Agreement or the Pledge Agreement that become
subject to the Lien of the Security Agreement or the Pledge Agreement
upon acquisition thereof), the Parent Borrower or, if applicable, the
relevant Foreign Subsidiary Borrower will notify the Administrative
Agent and the Lenders thereof, and, if reasonably requested by the
Administrative Agent or the Required Lenders, the Parent Borrower will
cause such assets to be subjected to a Lien securing the Obligations
and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the
Loan Parties.
SECTION 5.14. [Intentionally Omitted].
SECTION 5.15. Available Funds; Additional Equity. (a)
Promptly following the consummation of the TriMas Transaction, the
Parent Borrower shall deposit $205,000,000 of the TriMas Specified
Proceeds in an interest bearing money market account with the
Administrative Agent. The proceeds of such account shall be distributed
to the Parent Borrower in order to enable the Parent Borrower to (i)
repurchase, redeem, repay, or otherwise retire the Convertible
Debentures within 90 days of the consummation of the TriMas Transaction
or deliver an irrevocable notice of redemption and deposit such
proceeds to the trustee thereunder within such 90-day period or (ii)
thereafter, to satisfy its obligations under the last sentence of
Section 2.11(d)(2).
(b) Until the date that the Convertible Debentures
have been irrevocably repurchased, redeemed, repaid or otherwise
retired in full, the Parent Borrower will designate as available for
the repurchase, redemption, repayment or retirement of Convertible
Debentures an amount of unused Revolving Commitments equal to the
Available Funds
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Reserve Amount, less the amount of cash in the Debenture Account.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and
the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, each
of Holdings, the Parent Borrower and each Foreign Subsidiary Borrower
(as to itself only) covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity
Securities. (a) None of Holdings, the Parent Borrower or any Foreign
Subsidiary Borrower will, nor will they permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
provided that (x)(A) Revolving Loans may only be used to
finance a Permitted Acquisition if, in addition to the
satisfaction of all other requirements necessary to effect
such Permitted Acquisition set forth herein, after giving
effect to such Permitted Acquisition (and any related
incurrence or repayment of Indebtedness), the Senior Leverage
Ratio is less than 2.75 to 1.00 and (B) the amount of
Revolving Loans used to finance Permitted Acquisitions
outstanding at any time shall not exceed $150,000,000 less (i)
the Available Funds Reserve Amount at such time plus (ii) the
amount of Available Funds in the Debenture Account at such
time, (y) until the Convertible Debentures have been
irrevocably repurchased, redeemed, repaid or otherwise retired
in full, Revolving Loans outstanding may not exceed the
aggregate Revolving Commitments less the amount designated as
available for the repurchase, redemption, repayment or
retirement of Convertible Debentures pursuant to Section
5.15(b) and (z) at all times, the amount of Revolving Loans
outstanding used for general corporate purposes (other than
Permitted Acquisitions) and Revolving Commitments available
for general corporate purposes (other than Permitted
Acquisitions) at such time shall be at least $100,000,000;
(ii) the Permitted Receivables Financing; provided
that the Permitted Receivables Financing may only be
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used to finance a Permitted Acquisition if, in addition to the
satisfaction of all other requirements necessary to effect
such Permitted Acquisition set forth herein, after giving
effect to such Permitted Acquisition (and any related
incurrence or repayment of Indebtedness), the Senior Leverage
Ratio is less than 2.75 to 1.00;
(iii) [intentionally omitted];
(iv) Indebtedness existing on the date hereof and set
forth in Schedule 6.01 to the Original Credit Agreement and
extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount as
specified on such Schedule 6.01 or result in an earlier
maturity date or decreased weighted average life thereof;
(v) the Convertible Debentures;
(vi) the Existing Subordinated Notes;
(vii) the Permitted Subordinated Notes and the
Permitted Senior Notes; provided that (x) Permitted
Subordinated Notes and Permitted Senior Notes may only be used
for the repayment of Revolving Borrowings and obligations
arising in respect of the Permitted Receivables Financing if,
after giving effect to the incurrence of such Permitted
Subordinated Notes or Permitted Senior Notes, the Senior
Leverage Ratio is less than 2.75 to 1.00 and (y) the aggregate
amount of proceeds of Permitted Subordinated Notes and
Permitted Senior Notes used for the repayment of Revolving
Borrowings and obligations arising in respect of the Permitted
Receivables Financing may not exceed $250,000,000;
(viii) Indebtedness of the Parent Borrower to any
Subsidiary and of any Subsidiary to the Parent Borrower or any
other Subsidiary; provided that Indebtedness of any Subsidiary
that is not a Domestic Loan Party to the Parent Borrower or
any Subsidiary Loan Party shall be subject to Section 6.04;
(ix) Guarantees by the Parent Borrower of
Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Parent Borrower or any other Subsidiary;
provided that (a) Guarantees by the Parent Borrower or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that
is not a Domestic Loan Party shall be subject to Section 6.04
and (b) this clause (ix) shall not apply to Guarantees of the
Existing
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Subordinated Notes, Permitted Subordinated Notes, the
Permitted Senior Notes or the TriMas Notes;
(x) Guarantees by Holdings, the Parent Borrower or
any Subsidiary, as the case may be, in respect of the Existing
Subordinated Notes, Permitted Subordinated Notes and the
Permitted Senior Notes; provided that none of Holdings, the
Parent Borrower or any Subsidiary, as the case may be, shall
Guarantee the Existing Subordinated Notes, the Permitted
Subordinated Notes or the Permitted Senior Notes unless (A) it
also has Guaranteed the Obligations pursuant to the Guarantee
Agreement and (B) such Guarantee of the Existing Subordinated
Notes or the Permitted Subordinated Notes is subordinated to
such Guarantee of the Obligations on terms no less favorable
to the Lenders than the subordination provisions of the
Existing Subordinated Notes;
(xi) Indebtedness of the Parent Borrower or any
Subsidiary incurred to finance the acquisition, construction
or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or
decreased weighted average life thereof; provided that (A)
such Indebtedness is incurred prior to or within 180 days
after such acquisition or the completion of such construction
or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (xi) shall not exceed
$50,000,000 at any time outstanding;
(xii) Indebtedness arising as a result of
an Acquisition Lease Financing;
(xiii) Indebtedness of any Person that becomes a
Subsidiary after the date hereof; provided that (A) such
Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contempla tion of or in
connection with such Person becoming a Subsidiary and (B) the
aggregate principal amount of Indebtedness permitted by this
clause (xiii) shall not exceed $25,000,000 at any time
outstanding, less the liquidation value of any outstanding
Assumed Preferred Stock;
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(xiv) Indebtedness of Holdings, the Parent Borrower
or any Subsidiary in respect of workers' compensation claims,
self-insurance obligations, performance bonds, surety appeal
or similar bonds and completion guarantees provided by
Holdings, the Parent Borrower and the Subsidiaries in the
ordinary course of their business; and
(xv) other unsecured Indebtedness of Holdings, the
Parent Borrower or any Subsidiary in an aggregate principal
amount not exceeding $20,000,000 at any time outstanding, less
the liquidation value of any applicable Qualified Holdings
Preferred Stock issued and outstanding pursuant to clause (b)
of the definition of Qualified Holdings Preferred Stock.
(b) None of Holdings, the Parent Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary
to, issue any preferred stock or other preferred Equity Interests,
except (i) Holdings Preferred Stock, (ii) Qualified Holdings Preferred
Stock, (iii) Assumed Preferred Stock and (iv) preferred stock or
preferred Equity Interests held by Holdings, the Parent Borrower or any
Subsidiary.
SECTION 6.02. Liens. None of Holdings, the Parent
Borrower or any Foreign Subsidiary Borrower will, nor will they permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) Liens in respect of the Permitted
Receivables Financing and the European Factoring
Arrangement;
(d) any Lien on any property or asset of the Parent
Borrower or any Subsidiary existing on the date hereof and set
forth in Schedule 6.02 to the Original Credit Agreement;
provided that (i) such Lien shall not apply to any other
property or asset of the Parent Borrower or any Subsidiary and
(ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
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(e) any Lien existing on any property or asset prior
to the acquisition thereof by the Parent Borrower or any
Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the
time such Person becomes a Subsidiary; provided that (A) such
Lien is not created in contemplation of or in connection with
such acquisi tion or such Person becoming a Subsidiary , as
the case may be, (B) such Lien shall not apply to any other
property or assets of the Parent Borrower or any Subsidiary
and (C) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be;
(f) Liens on fixed or capital assets acquired,
constructed or improved by, or in respect of Capital Lease
Obligations of, the Parent Borrower or any Subsidiary;
provided that (A) such security interests secure Indebtedness
permitted by clause (xi) of Section 6.01(a), (B) such security
interests and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (C) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital
assets and (D) such security interests shall not apply to any
other property or assets of the Parent Borrower or any
Subsidiary;
(g) Liens, with respect to any Mortgaged Property,
described in Schedule B-2 of the title policy covering such
Mortgaged Property;
(h) other Liens securing liabilities permitted
hereunder in an aggregate amount not exceeding (i) in respect
of consensual Liens, $5,000,000 and (ii) in respect of all
such Liens, $10,000,000, in each case at any time outstanding;
and
(i) Liens on equipment with an orderly liquidation
value of not more than $13,000,000 securing obligations under
leases expressly permitted under Section 6.06(b)(ii); provided
that, with respect to each such lease, such equipment and its
aggregate orderly liquidation value shall be specified on a
schedule delivered to the Administrative Agent by the Parent
Borrower no later than three Business Days prior to the Parent
Borrower's or any Subsidiary's entering into such lease.
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SECTION 6.03. Fundamental Changes. (a) None of
Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Subsidiary may merge into
the Parent Borrower in a transaction in which the Parent Borrower is
the surviving corporation, (ii) any Subsidiary may merge into any
Subsidiary in a transaction in which the surviving entity is a
Subsidiary and (if any party to such merger is a Subsidiary Loan Party)
is a Subsidiary Loan Party (provided that, with respect to any such
mergers involving the Foreign Subsidiary Borrower, the surviving entity
of such mergers shall be a Subsidiary Borrower or a Foreign Subsidiary
Borrower, as the case may be) and (iii) any Subsidiary (other than a
Subsidiary Loan Party) may liquidate or dissolve if the Parent Borrower
determines in good faith that such liquidation or dissolution is in the
best interests of the Parent Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving
a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section
6.04.
(b) The Parent Borrower will not, and will not permit
any of its Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the Parent
Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
(c) Holdings will not engage in any business or
activity other than (i) the ownership of all the outstanding shares of
capital stock of the Parent Borrower and the Saturn Subsidiary, (ii)
performing its obligations in respect of the Restricted Stock Award,
(iii) performing its obligations (A) under the Loan Documents, (B) as
co-obligor with the Parent Borrower in respect of the Convertible
Debentures and (C) under the Permitted Receivables Financing, (iv)
activities incidental thereto and to Holdings' existence, (v)
activities related to the performance of all its obligations under the
Recapitalization Agreement and in respect of the Transactions, (vi)
performing its obligations under guarantees in respect of sale and
leaseback transactions permitted by Section 6.06 and (vii) other
activities (including the incurrence of Indebtedness and the issuance
of its Equity Interests) that are permitted by this Agreement. Holdings
will not own or acquire any assets
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(other than shares of capital stock of the Parent Borrower and the
Saturn Subsidiary, any immaterial assets not subject to the Asset
Dropdown, cash and Permitted Investments) or incur any liabilities
(other than liabilities imposed by law, including tax liabilities,
liabilities related to its existence and permitted business and
activities specified in the immediately preceding sentence).
(d) The Saturn Subsidiary will not engage in any
business or business activity other than (i) holding Equity Interests
in Saturn held on the date of the execution of this Agreement and any
property received in respect thereof, (ii) performing its obligations
in respect of the Saturn Sale and the Saturn Proceeds Distribution,
(iii) activities permitted by its certificate of incorporation and (iv)
activities incidental thereto and to the Saturn Subsidiary's existence.
The Saturn Subsidiary will not own or acquire any assets (other than
such equity investments in Saturn) or incur any liabilities (other than
liabilities imposed by law, including tax liabilities, and other
liabilities related to its existence and permitted business and
activities specified in the immediately preceding sentence).
(e) The Receivables Subsidiary will not engage in any
business or business activity other than the activities related to the
Permitted Receivables Financing and its existence. The Receivables
Subsidiary will not own or acquire any assets (other than the
receivables subject to the Permitted Receivables Financing) or incur
any liabili ties (other than the liabilities imposed by law including
tax liabilities, and other liabilities related to its existence and
permitted business and activities specified in the immediately
preceding sentence, including liabilities arising under the Permitted
Receivables Financing).
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions. None of the Parent Borrower, any
Subsidiary Loan Party or any Foreign Subsidiary Borrower will, nor will
they permit any Subsidiary to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned
Subsidiary prior to such merger) any Equity Interests in or evidences
of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other
Person, or purchase or otherwise
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acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set
forth on Schedule 6.04 to the Original Credit Agreement and
investments in TriMas and its subsidiaries existing
immediately after the consumation of the TriMas Transaction;
(c) Permitted Acquisitions;
(d) investments by the Parent Borrower and the
Subsidiaries in Equity Interests in their respective
Subsidiaries that exist immediately prior to any applicable
transaction; provided that (i) any such Equity Interests held
by a Loan Party shall be pledged pursuant to the Pledge
Agreement or any applicable Foreign Security Documents, as the
case may be, to the extent required by this Agreement and (ii)
the aggregate amount of investments (excluding any such
investments, loans, advances and Guaranties to such
Subsidiaries that are assumed and exist on the date any
Permitted Acquisition is consummated and that are not made,
incurred or created in contemplation of or in connection with
such Permitted Acquisition) by Loan Parties in, and loans and
advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness of, Subsidiaries that are not Domestic Loan
Parties made after the Effective Date shall not exceed 5% of
Holdings' consolidated total assets determined in accordance
with GAAP at any time outstanding;
(e) loans or advances made by the Parent Borrower to
any Subsidiary and made by any Subsidiary to the Parent
Borrower or any other Subsidiary; provided that (i) any such
loans and advances made by a Loan Party shall be evidenced by
a promissory note pledged pursuant to the Pledge Agreement and
(ii) the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties shall be
subject to the limitation set forth in clause (d) above;
(f) Guarantees permitted by Section 6.01(a)(x);
(g) investments arising as a result of the
Permitted Receivables Financing;
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(h) investments constituting permitted Capital
Expenditures under Section 6.15;
(i) investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
(j) any investments in or loans to any other Person
received as noncash consideration for sales, transfers, leases
and other dispositions permitted by Section 6.05;
(k) Guarantees by the Parent Borrower and the
Subsidiaries of leases entered into by any Subsidiary as
lessee; provided that the amount of such Guarantees made by
Loan Parties to Subsidiaries that are not Loan Parties shall
be subject to the limitation set forth in clause (d) above;
(l) extensions of credit in the nature of
accounts receivable or notes receivable in the
ordinary course of business;
(m) loans or advances to employees made in the
ordinary course of business consistent with prudent business
practice and not exceeding $5,000,000 in the aggregate
outstanding at any one time;
(n) investments in the form of Hedging
Agreements permitted under Section 6.07;
(o) investments by the Parent Borrower or any
Subsidiary in (i) the capital stock of a Receivables
Subsidiary and (ii) other interests in a Receivables
Subsidiary, in each case to the extent required by the terms
of the Permitted Receivables Financing;
(p) payroll, travel and similar advances to cover
matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business; and
(q) investments, loans or advances in addition to
those permitted by clauses (a) through (p) above not exceeding
in the aggregate $25,000,000 at any time outstanding.
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SECTION 6.05. Asset Sales. None of Holdings, the
Parent Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest owned by it, nor will they
permit any Subsidiary to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales, transfers, leases and other dispositions
of inventory, used or surplus equipment, Permitted Investments
and Investments referred to in Section 6.04(i) in the ordinary
course of business;
(b) sales, transfers and dispositions to the Parent
Borrower or a Subsidiary; provided that any such sales,
transfers or dispositions involving a Subsidiary that is not a
Domestic Loan Party shall be made in compliance with Section
6.09;
(c) the Saturn Sale or the disposition of Equity
Interests in the Saturn Subsidiary in lieu thereof;
(d) sales of accounts receivables and related assets
pursuant to the Permitted Receivables Financing;
(e) the creation of Liens permitted by Section 6.02
and dispositions as a result thereof;
(f)(i) sales or transfers that are permitted sale and
leaseback transactions pursuant to Section 6.06(a) and (ii)
sales and transfers of the TriMas Interest;
(g) sales and transfers that constitute part of an
Acquisition Lease Financing;
(h) Restricted Payments permitted by Section 6.08;
(i) transfers and dispositions constituting
investments permitted under Section 6.04;
(j) sales, transfers and other dispositions of
property identified on Schedule 6.05 to the Original Credit
Agreement;
(k) sales, transfers and other dispositions of assets
(other than Equity Interests in a Subsidiary) that are not
permitted by any other clause of this Section; provided that
the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this
clause (k) shall not exceed $15,000,000 during any fiscal year
of the Parent
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Borrower; provided that such amount shall be increased, in
respect of the fiscal year ending on December 31, 2002, and
each fiscal year thereafter by an amount equal to the total
unused amount of such permitted sales, transfers and other
dispositions for the immediately preceding fiscal year
(without giving effect to the amount of any unused permitted
sales, transfers and other dispositions that were carried
forward to such preceding fiscal year); and
(l) sales of accounts receivable and related assets
pursuant to a European Factoring Arrangement;
provided that (x) all sales, transfers, leases and other dispositions
permitted hereby (other than those permitted by clause (b) above) shall
be made for fair value and (y) all sales, transfers, leases and other
dispositions permitted by clauses (j) and (k) above shall be for at
least 85% cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. None
of the Parent Borrower or any Foreign Subsidiary Borrower will, nor
will they permit any Subsidiary to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred, except for (a)
any such sale of any fixed or capital assets that is made for cash
consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 180 days after the Parent
Borrower, such Foreign Subsidiary Borrower or such Subsidiary acquires
or completes the construction of such fixed or capital asset, so long
as the Capital Lease Obligations associated therewith are permitted by
Section 6.01(a)(xi), (b) in the case of property owned as of December
18, 2001, (i) any such sale of any fixed or capital assets that is made
for cash consideration in an aggregate amount not less than the fair
market value of such fixed or capital assets not to exceed $50,000,000
in the aggregate and (ii) any such sale of any fixed or capital assets
that is made for cash consideration in an aggregate amount not less
than an amount equal to 85% of the orderly liquidation value of such
fixed or capital assets not to exceed $25,000,000 in the aggregate, so
long as, in each case, the Capital Lease Obligations (if any)
associated therewith are permitted by Section 6.01(a)(xi) and (c) any
Acquisition Lease Financing.
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SECTION 6.07. Hedging Agreements. None of the Parent
Borrower or any Foreign Subsidiary Borrower will, nor will they permit
any Subsidiary to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business and which
are not speculative in nature to hedge or mitigate risks to which the
Parent Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its assets or liabilities.
SECTION 6.08. Restricted Payments; Certain Payments
of Indebtedness. (a) None of Holdings, the Parent Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary
to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except:
(i) Holdings may (x) declare and pay dividends with
respect to its Equity Interests payable solely in additional
Equity Interests of Holdings, (y) repurchase Equity Interests
not to exceed $10,000,000 from former shareholders of its
existing or former Subsidiaries that received such Equity
Interests of Holdings prior to the date hereof and (z)
repurchase the preferred stock of Holdings in an aggregate
amount not to exceed $20,000,000, provided that, at the time
of such repurchase and after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing and
Holdings and the Parent Borrower are in compliance with
Sections 6.13 and 6.14;
(ii) Subsidiaries may declare and pay dividends
ratably with respect to their capital stock;
(iii) the Parent Borrower may make payments to
Holdings to permit it to make, and Holdings may make,
Restricted Payments, not exceeding $2,000,000 during any
fiscal year (provided that such amount shall be increased, in
respect of the fiscal year ending on December 31, 2002, and
each fiscal year thereafter by an amount equal to the total
unused amount of such Restricted Payments for the immediately
preceding fiscal year (without giving effect to the amount of
any unused amounts that were carried forward to such preceding
fiscal year) not to exceed in the aggregate $16,000,000), in
each case pursuant to and in accordance with stock option
plans, equity purchase programs or agreements or other benefit
plans, in each case for management or employees or former
employees of the Parent Borrower and the Subsidiaries;
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(iv) the Parent Borrower may pay dividends to
Holdings at such times and in such amounts (A) as shall be
necessary to enable Holdings to make payments permitted by
clause (z) of Section 6.08(a)(i) and Sections 6.08(a)(v) and
(vi) and (B) as shall be necessary to permit Holdings to
discharge its other permitted liabilities;
(v) Holdings may pay Holdings Preferred Dividends and
interest in respect of its Indebtedness permitted hereunder,
provided that, at the time of such payment and after giving
effect thereto, no Default or Event of Default shall have
occurred and be continuing and Holdings and the Parent
Borrower are in compliance with Sections 6.13 and 6.14;
(vi) Holdings may make payments to the extent
contemplated by the Recapitalization Agreement, including
payments in respect of the restricted stock granted pursuant
to the Restricted Stock Obligation (including payments in
respect of the Restricted Stock Obligation after the date such
payments were scheduled to have been made), provided that, at
the time of such payment in respect of the Restricted Stock
Obligation and after giving effect thereto, no Event of
Default shall have occurred and be continuing;
(vii) Holdings may (x) pay the Saturn Proceeds
Distribution and (y) repurchase, redeem, repay or otherwise
retire the Convertible Debentures with Available Funds,
proceeds from Permitted Subordinated Notes or issuances or
sales of capital stock of Holdings; and
(viii) Parent Borrower may make payments to Holdings
to permit it to make, and Holdings may make payments permitted
by Sections 6.09(f), (g), (h) and (i); provided that, at the
time of such payment and after giving effect thereto, no
Default or Event of Default shall have occurred and be
continuing and Holdings and the Parent Borrower are in
compliance with Sections 6.13 and 6.14; provided, further that
any payments that are prohibited because of the immediately
preceding proviso shall accrue and may be made as so accrued
upon the curing or waiver of such Default, Event of Default or
noncompliance.
(b) None of Holdings, the Parent Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary
to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property)
of or in respect of principal of or interest on any Indebtedness, or
any payment or other distribution (whether in
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cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisi tion, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan
Documents;
(ii) the repurchase, redemption, repayment or other
retirement of the Convertible Debentures as permitted by
Section 6.08(a)(vii);
(iii) payment of regularly scheduled interest and
principal payments as and when due in respect of any
Indebtedness, other than payments in respect of the
subordinated Indebtedness prohibited by the subordination
provisions thereof;
(iv) refinancings of Indebtedness to the extent
permitted by Section 6.01; and
(v) payment of secured Indebtedness out of the
proceeds of any sale or transfer of the property or assets
securing such Indebtedness.
(c) None of Holdings, the Parent Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary
to, enter into or be party to, or make any payment under, any Synthetic
Purchase Agreement unless (i) in the case of any Synthetic Purchase
Agreement related to any Equity Interest of Holdings, the payments
required to be made by Holdings are limited to amounts permitted to be
paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase
Agreement related to any Restricted Indebtedness, the payments required
to be made by Holdings, the Parent Borrower or the Subsidiaries
thereunder are limited to the amount permitted under Section 6.08(b)
and (iii) in the case of any Synthetic Purchase Agreement, the
obligations of Holdings, the Parent Borrower and the Subsidiaries
thereunder are subordinated to the Obligations on terms satisfactory to
the Required Lenders.
SECTION 6.09. Transactions with Affiliates. None of
Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets
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from, or otherwise engage in any other transactions with, any of its
Affiliates, except:
(a) transactions that do not involve Holdings and are
at prices and on terms and conditions not less favorable to
the Parent Borrower or such Subsidiary than could be obtained
on an arm's-length basis from unrelated third parties;
(b) transactions between or among the Parent Borrower
and the Subsidiaries not involving any other Affiliate (to the
extent not otherwise prohibited by other provisions of this
Agreement);
(c) any Restricted Payment permitted by Section 6.08;
(d) transactions pursuant to agreements in effect on
the Effective Date and listed on Schedule 6.09 to the Original
Credit Agreement (provided that this clause (d) shall not
apply to any extension, or renewal of, or any amendment or
modification of such agreements that is less favorable to the
Parent Borrower or the applicable Subsidiaries, as the case
may be);
(e) (i) the Transactions and (ii) the TriMas
Transactions and the TriMas Affiliate Agreements (provided
that this clause (e)(ii) shall not apply to any extension, or
renewal of, or any amendment or modification of such
agreements that is less favorable in any material respect,
taken as a whole, to the Parent Borrower or the applicable
Subsidiaries, as the case may be);
(f) the payment, on a quarterly basis, of management
fees to Heartland and/or its Affiliates in accordance with the
Heartland Management Agreement, provided that the annual
amount of such management fees shall not exceed $4,000,000;
(g) the reimbursement of Heartland and/or its
Affiliates for their reasonable out-of-pocket expenses
incurred by them in connection with the Transactions and
performing management services to Holdings, the Parent
Borrower and the Subsidiaries, pursuant to the Heartland
Management Agreement;
(h) the payment of one time fees to Heartland and/or
its Affiliates in connection with any Permitted Acquisition,
such fees to be payable at the time of each such acquisition
and not to exceed the percentage
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of the aggregate consideration paid by Holdings, the Parent
Borrower and its Subsidiaries for any such acquisition as
specified in the Heartland Management Agreement; and
(i) payments to Heartland and/or its Affiliates for
any financial advisor, underwriter or placement services or
other investment banking activities rendered to Holdings, the
Parent Borrower or the Subsidiaries, pursuant to the Heartland
Management Agreement.
SECTION 6.10. Restrictive Agreements. None of
Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of
Holdings, the Parent Borrower or any Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or
advances to the Parent Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Parent Borrower or any other Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any (A) Loan Document or Permitted Receivables
Document or (B) any Existing Subordinated Notes, Permitted Subordinated
Notes and Permitted Senior Notes that are customary, in the reasonable
judgment of the board of directors thereof, for the market in which
such Indebtedness is issued so long as such restrictions do not
prevent, impede or impair (x) the creation of Liens and Guarantees in
favor of the Lenders under the Loan Documents or (y) the satisfaction
of the obligations of the Loan Parties under the Loan Documents, (ii)
the foregoing shall not apply to restrictions and conditions existing
on the date hereof identified on Schedule 6.10 to the Original Credit
Agreement (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction
or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided, further, that such
restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement
if such restrictions or conditions apply only to the property or assets
securing such Indebtedness and
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(v) clause (a) of the foregoing shall not apply to customary provisions
in leases and other agreements restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. None
of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower
will, nor will they permit any Subsidiary (including the Receivables
Subsidiary and the Saturn Subsidiary) to, amend, modify or waive any of
its rights under (a) its certificate of incorporation, by-laws or other
organizational documents, (b) the Recapitalization Documents and (c)
any Material Agreement, in each case to the extent such amendment,
modification or waiver is adverse to the Lenders.
SECTION 6.12. Convertible Debentures.
Holdings shall not repurchase, redeem, repay or otherwise retire any
Convertible Debentures except as permitted by Section 6.08(a)(vii).
SECTION 6.13. Interest Expense Coverage Ratio.
Neither Holdings nor the Parent Borrower will permit the ratio of (a)
Consolidated EBITDA to (b) the sum of (i) Consolidated Cash Interest
Expense and (ii) Holdings Preferred Dividends, in each case for any
period of four consecutive fiscal quarters ending on any date during
any period set forth below, to be less than the ratio set forth below
opposite such period:
Period Ratio
------ -----
June 30, 2002, to March 30, 2003 1.80 to 1.00
March 31, 2003, to September 29, 2003 2.00 to 1.00
September 30, 2003, to December 30, 2003 2.25 to 1.00
December 31, 2003, to September 29, 2004 2.50 to 1.00
September 30, 2004, to December 30, 2005 2.75 to 1.00
December 31, 2005, to December 30, 2006 3.25 to 1.00
December 31, 2006, and thereafter 3.50 to 1.00
SECTION 6.14. Leverage Ratio. Neither Holdings nor
the Parent Borrower will permit the Leverage Ratio as of any date
during any period set forth below to exceed the ratio set forth
opposite such period:
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Period Ratio
------ -----
June 30, 2002, to September 29, 2002 5.00 to 1.00
September 30, 2002, to December 30, 2002 4.75 to 1.00
December 31, 2002, to March 30, 2003 4.50 to 1.00
March 31, 2003, to June 29, 2003 4.25 to 1.00
June 30, 2003, to December 30, 2003 4.00 to 1.00
December 31, 2003, to September 29, 2004 3.75 to 1.00
September 30, 2004, to December 30, 2005 3.50 to 1.00
December 31, 2005, to December 30, 2006 3.00 to 1.00
December 31, 2006, and thereafter 2.75 to 1.00
SECTION 6.15. Capital Expenditures. (a) Neither
Holdings nor the Parent Borrower will permit the aggregate amount of
Capital Expenditures for any period to exceed the applicable Permitted
Capital Expenditure Amount for such period.
(b) Notwithstanding the foregoing, the Parent
Borrower may in respect of the fiscal year ending on December 31, 2002,
and each fiscal year thereafter, increase the amount of Capital
Expenditures permitted to be made during such fiscal year pursuant to
Section 6.15(a) by an amount equal to the total unused amount of
permitted Capital Expenditures for the immediately preceding fiscal
year (without giving effect to the amount of any unused permitted
Capital Expenditures that were carried forward to such preceding fiscal
year).
SECTION 6.16. Consolidated Lease Expense. Neither
Holdings nor the Parent Borrower will permit Consolidated Lease Expense
associated with Capital Expenditures to exceed 30% of Capital
Expenditures for such fiscal year.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default")
shall occur:
(a) the Parent Borrower or any Foreign Subsidiary
Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC
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Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Parent Borrower or any Foreign Subsidiary
Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement or
any other Loan Document, when and as the same shall become due
and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c) any representation or warranty made or deemed
made by or on behalf of Holdings, the Parent Borrower, any
Foreign Subsidiary Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made
or deemed made;
(d) Holdings, the Parent Borrower or any Foreign
Subsidiary Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02,
5.04 (with respect to the existence of Holdings, the Parent
Borrower or any Foreign Subsidiary Borrower and ownership of
the Foreign Subsidiary Borrowers), 5.11 or 5.15 or in Article
VI;
(e) any Loan Party shall fail to observe or perform
any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (a), (b) or (d)
of this Article), and such failure shall continue unremedied
for a period of 30 days after notice thereof from the
Administrative Agent to the Parent Borrower (which notice will
be given at the request of any Lender);
(f) Holdings, the Parent Borrower or any Subsidiary
shall fail to make any payment of principal or interest in
respect of any Material Indebtedness, when and as the same
shall become due and payable after giving effect to any
applicable grace period with respect thereto;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its
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scheduled maturity or that enables or permits the holder or
holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing
such Indebtedness;
(h) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect of
Holdings, the Parent Borrower or any Subsidiary or its debts,
or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator
or similar official for Holdings, the Parent Borrower or any
Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) Holdings, the Parent Borrower or any Subsidiary
shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described
in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings,
the Parent Borrower or any Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(j) Holdings, the Parent Borrower or any Subsidiary
shall become unable, admit in writing in a court proceeding
its inability or fail generally to pay its debts as they
become due;
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(k) one or more judgments for the payment of money in
an aggregate amount in excess of $15,000,000 shall be rendered
against Holdings, the Parent Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for
a period of 30 consecu tive days during which execution shall
not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets
of Holdings, the Parent Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with all
other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect on Holdings,
the Parent Borrower and its Subsidiaries;
(m) any Lien covering property having a book value or
fair market value of $1,000,000 or more purported to be
created under any Security Document shall cease to be, or
shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, except (i) as a result of
the sale or other disposition of the applicable Collateral in
a transaction permitted under the Loan Documents or (ii) as a
result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or
other instruments delivered to it under the Collateral
Agreement;
(n) the Guarantee Agreement shall cease to
be, or shall have been asserted not to be, in full
force and effect;
(o) the Parent Borrower, Holdings or any Subsidiary
shall challenge the subordination provisions of the
Subordinated Debt or assert that such provisions are invalid
or unenforceable or that the Obligations of the Parent
Borrower or any Foreign Subsidiary Borrower, or the
Obligations of Holdings or any Subsidiary under the Guarantee
Agreement, are not senior indebtedness under the subordination
provisions of the Subordinated Debt, or any court, tribunal or
government authority of competent jurisdiction shall judge the
subordination provisions of the Subordinated Debt to be
invalid or unenforceable or such Obligations to be not senior
indebtedness under such subordination provisions or otherwise
cease to be, or shall be asserted not to be, legal, valid and
binding obligations of the parties thereto, enforceable in
accordance with their terms; or
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(p) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the
Parent Borrower described in clause (h) or (i) of this Article), and at
any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Parent Borrower, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately,
and (ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be
due and payable may there after be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Parent Borrower or any Foreign Subsidiary Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Parent Borrower and the Foreign Subsidiary
Borrowers; and in case of any event with respect to the Parent Borrower
or any Foreign Subsidiary Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Parent Borrower or
any Foreign Subsidiary Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Parent
Borrower and the Foreign Subsidiary Borrowers.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby
irrevocably appoints the Administrative Agent (it being understood that
reference in this Article VIII to the Administrative Agent shall be
deemed to include the Collateral Agent) as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by
the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were
not the Administrative Agent, and
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such bank and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with Holdings, the Parent
Borrower or any Subsidiary or other Affiliate thereof as if it were not
the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents.
Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contem plated by the
Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided
in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any
information relating to Holdings, the Parent Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not
taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.02) or in
the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall not be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the
Administrative Agent by Holdings, the Parent Borrower, a Foreign
Subsidiary Borrower or a Lender, and the Administrative Agent shall not
be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with
any Loan Document, (ii) the contents of any certificate, report or
other document delivered thereunder or in connection therewith, (iii)
the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan
Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by
the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Parent Borrower or any Foreign
Subsidiary Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of each
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.
Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders,
the Issuing Bank and the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers). Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Parent Borrower
and, if applicable, the relevant Foreign Subsidiary Borrower, to
appoint a successor from among the Lenders. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties
and obligations
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hereunder. The fees payable by the Parent Borrower (on behalf of itself
and the Foreign Subsidiary Borrowers) to a successor Administrative
Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this
Article and Section 10.03 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken
by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, indepen dently
and without reliance upon the Administrative Agent or any other Lender
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any
other Loan Document or related agreement or any document furnished
hereunder or thereunder.
The Lenders identified in this Agreement as the
Syndication Agent and the Documentation Agents shall not have any
right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders. Without limiting
the foregoing, none of the Syndication Agent or the Documentation
Agents shall have or be deemed to have a fiduciary relationship with
any Lender. Each Lender hereby makes the same acknowledgments with
respect to the Syndication Agent and the Documentation Agents as it
makes with respect to the Administrative Agent or any other Lender in
this Article VIII.
ARTICLE IX
Collection Allocation Mechanism
SECTION 9.01. Implementation of CAM. (a) On the CAM
Exchange Date, (i) the Commitments shall automatically and without
further act be terminated as provided in Article VII, (ii) all Foreign
Currency Borrowings and the Commitments to make Foreign Currency Loans
shall be converted into, and all such amounts due thereunder shall
accrue and be payable in, dollars at the Exchange Rate on such date and
(iii) the Lenders shall automatically and
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without further act (and without regard to the provisions of Section
10.04) 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 Specified Obligations of each Loan Party in
respect of each such Credit Facility), such Lender shall hold an
interest in every one of the Credit Facilities (including the Specified
Obligations of each Loan Party in respect of each such Credit Facility
and each LC 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 and
each Loan Party hereby consents and agrees to the CAM Exchange, and
each Lender agrees that the CAM Exchange shall be binding upon its
successors and assigns and any person that acquires a participation in
its interests in any Credit Facility. Each Loan Party agrees from time
to time to execute and deliver to the Administrative Agent all
promissory 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 promissory notes
originally received by it in connection with its Loans hereunder to the
Administrative Agent against delivery of new promissory notes
evidencing its interests in the Credit Facilities; provided, however,
that the failure of any Loan Party to execute or deliver or of any
Lender to accept any such promissory note, instrument or document shall
not affect the validity or effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after
the CAM Exchange Date, each payment received by the Administrative
Agent or the Collateral Agent pursuant to any Loan Document in respect
of the Specified Obligations, and each distribution made by the
Collateral Agent pursuant to any Security Documents in respect of the
Specified Obliga tions, shall be distributed to the Lenders pro rata in
accordance with their respective CAM Percentages. Any direct payment
received by a Lender upon or after the CAM Exchange Date, including by
way of setoff, in respect of a Specified Obligation shall be paid over
to the Administra tive Agent for distribution to the Lenders in
accordance herewith.
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 Parent Borrower or
any Foreign
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Subsidiary Borrower, as the case may be, or with the proceeds of a
Revolving Borrowing, each Revolving Lender shall promptly pay over to
the Administrative Agent, in immediately available funds and in the
currency that such Letters of Credit are denominated, an amount equal
to such Revolving Lender's Applicable Percentage (as notified to such
Lender by the Administrative Agent) of such Letter of Credit's undrawn
face amount or (to the extent it has not already done so) such Letter
of Credit's unreimbursed drawing, 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 an ABR Revolving Loan in a principal amount equal to such
amount, as the case may be. The Administrative Agent shall establish a
separate account or accounts for each Lender (each, an "LC Reserve
Account") for the amounts received with respect to each such Letter of
Credit pursuant to the preceding sentence. The Administrative Agent
shall deposit in each Lender's LC Reserve Account such Lender's CAM
Percentage of the amounts received from the Revolving Lenders as
provided above. The Administrative Agent shall have sole dominion and
control over each LC Reserve Account, and the amounts deposited in each
LC Reserve Account shall be held in such LC 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 LC Reserve Accounts in
respect of each Letter of Credit and the amounts on deposit in respect
of each Letter of Credit attributable to each Lender's CAM Percentage.
The amounts held in each Lender's LC Reserve Account shall be held as a
reserve against the LC Exposure, shall be the property of such Lender,
shall not constitute Loans to or give rise to any claim of or against
any Loan Party and shall not give rise to any obligation on the part of
the Parent Borrower or the Foreign Subsidiary Borrowers to pay interest
to such Lender, it being agreed that the reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings
are made thereunder, as provided in Section 2.05.
(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 Issuing Bank withdraw
from the LC Reserve Account of each Lender any amounts, up to the
amount of such Lender's CAM Percentage of such drawing, deposited in
respect of such Letter of Credit and remaining on deposit and deliver
such amounts to the Issuing Bank in satisfaction of the reimbursement
obligations of the Revolving Lenders under Section 2.05(e) (but not of
the Parent Borrower and the
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Foreign Subsidiary Borrowers under Section 2.05(f), respectively). In
the event any Revolving 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 shall, in the
event of a drawing thereunder, have a claim against such Revolving
Lender to the same extent as if such Lender had defaulted on its
obligations under Section 2.05(e), but shall have no claim against any
other Lender in respect of such defaulted amount, notwithstanding the
exchange of interests in the reimbursement obligations pursuant to
Section 9.01. Each other Lender shall have a claim against such
defaulting Revolving 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 Administra tive Agent shall
withdraw from the LC 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 Issuing Bank, any Lender may withdraw the
amount held in its LC 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 Issuing Bank on demand, its CAM
Percentage of such drawing.
(e) Pending the withdrawal by any Lender of any
amounts from its LC Reserve 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
Permitted Investments. Each Lender that has not withdrawn its CAM
Percentage of amounts in its LC Reserve Account as provided in para
graph (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 LC Reserve Account
and to retain such earnings for its own account.
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ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices
and other communications expressly permitted to be given by telephone,
all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to Holdings, the Parent Borrower or any
Foreign Subsidiary Borrower, to the Parent Borrower (on behalf
of itself, Holdings and any Foreign Subsidiary Borrower) at
Metaldyne Corporation, 00000 Xxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, Attention of Xxxxx Liner, Esq. (Telecopy No. (313)
792-6136),
with a copy to
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
(Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to JPMorgan Chase
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan
Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxxxx Xxxxx (Telecopy No. 212-270-5127);
(c) if to the Issuing Bank, to it at 10420 Highland
Mn Dr-BL2, Xxxxx, Xxxxxxx 00000, Attention of Xxxxx Xxxxxx
(Telecopy No. (000) 000-0000), and in the event that there is
more than one Issuing Bank, to such other Issuing Bank at its
address (or telecopy number) set forth in its Administrative
Questionnaire;
(d) if to the Swingline Lender, to it at One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxx (Telecopy No. (000) 000-0000); and
(e) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative
Questionnaire.
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Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or
delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power here under or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinu ance 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, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of any Loan Document
or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan
or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent, any Lender
or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by Holdings, the Parent
Borrower, each Foreign Subsidiary Borrower (but only to the extent such
waiver, amendment or modification relates to such Foreign Subsidiary
Borrower) and the Required Lenders or, in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or any scheduled date of
payment of the principal amount of any Term Loan under Section 2.10, or
the required
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date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment or postpone the scheduled date of
expiration of any Letter of Credit beyond the Revolving Maturity Date,
without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of
each Lender, (v) change the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document
(including this Section) specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release Holdings or any Subsidiary
Loan Party from its Guarantee under the Guarantee Agreement (except as
expressly provided in the Guarantee Agreement), or limit its liability
in respect of such Guarantee, without the written consent of each
Lender, (vii) release all or substantially all of the Collateral from
the Liens of the Security Documents, without the written consent of
each Lender or (viii) change any provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of
payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each affected Class; provided further that (A) no
such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be, and (B)
any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the
Revolving Lenders (but not the Tranche D Lenders) or the Tranche D
Lenders (but not the Revolving Lenders), may be effected by an
agreement or agreements in writing entered into by Holdings, the Parent
Borrower, each Foreign
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Subsidiary Parent Borrower (but only to the extent such waiver,
amendment or modification relates to such Foreign Subsidiary Borrower)
and requisite percentage in interest of the affected Class of Lenders
that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time.
Notwithstanding the foregoing, any provision of this Agreement may be
amended by an agreement in writing entered into by Holdings, the Parent
Borrower, each Foreign Subsidiary Borrower (but only to the extent such
waiver, amendment or modification relates to such Foreign Subsidiary
Borrower), the Required Lenders and the Administrative Agent (and, if
their rights or obligations are affected thereby, the Issuing Bank and
the Swingline Lender) if (i) by the terms of such agreement the
Commitment of each Lender not consenting to the amendment provided for
therein shall terminate upon the effectiveness of such amendment and
(ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to
it or accrued for its account under this Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Holdings, the Parent Borrower and each Foreign Subsidiary Borrower,
jointly and severally, shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of one counsel
in each applicable jurisdiction for the Administrative Agent, in
connection with the syndication of the credit facilities provided for
herein, due diligence investigation, the preparation and administration
of the Loan Documents or any amendments, modifications or waivers of
the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with
the issuance, amendment, renewal or extension of any Letter of Credit
or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel
for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Holdings, the Parent Borrower and each Foreign
Subsidiary Borrower, jointly and severally, shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any
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Indemnitee arising out of, in connection with, or as a result of (i)
the execution or delivery of any Loan Document or any other agreement
or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any Mortgaged Property or any other
property currently or formerly owned or operated by the Parent Borrower
or any of its Subsidiaries, or any Environmental Liability related in
any way to the Parent Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that Holdings, the Parent Borrower
and the Foreign Subsidiary Borrowers fail to pay any amount required to
be paid by it to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Issuing
Bank or the Swingline Lender, as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, none
of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower
shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of
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liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or
the use of the proceeds thereof.
(e) All amounts due under this Section shall be
payable promptly after written demand therefor.
(f) Neither Heartland nor any director, officer,
employee, stockholder or member, as such, of any Loan Party or
Heartland shall have any liability for the Obligations or for any claim
based on, in respect of or by reason of the Obligations or their
creation; provided that the foregoing shall not be construed to relieve
any Loan Party of its Obligations under any Loan Document.
SECTION 10.04. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank
that issues any Letter of Credit), except that none of Holdings, the
Parent Borrower or any Foreign Subsidiary Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment
or transfer by the Parent Borrower or any Foreign Subsidiary Borrower
without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank
that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Bank and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees
all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time
owing to it); provided that (i) except in the case of an assignment to
a Lender or a Lender Affiliate, each of the Parent Borrower, each
Foreign Subsidiary Borrower (but only to the extent such assignment
relates to Foreign Currency Commitments or Foreign Currency Loans
relating to such Foreign Subsidiary Borrower) and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its LC
Exposure or
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Swingline Exposure, the Issuing Bank and the Swingline Lender) must
give their prior written consent to such assignment (which consent
shall not be unreasonably withheld or delayed), (ii) except in the case
of an assignment to a Lender or a Lender Affiliate or an assignment of
the entire remaining amount of the assigning Lender's Commitment or
Loans, the amount of the Commitment or Loans 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 (x) in the case of
Revolving Commitments and Revolving Loans, $5,000,000, and (y) in the
case of Tranche D Commitments and Tranche D Loans, $1,000,000 unless
each of the Parent Borrower, each Foreign Subsidiary Borrower (but only
to the extent such assignment relates to Foreign Currency Commitments
or Foreign Currency Loans relating to such Foreign Subsidiary Borrower)
and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement,
except that this clause (iii) shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender's rights
and obligations in respect of one Class of Commitments or Loans, (iv)
notwithstanding anything to the contrary, assignments by any Revolving
Lender of any portion of its Revolving Commitments or any portion of
Revolving Loans must include a ratable portion of its Foreign Currency
Commitments and ratable portion of its Foreign Currency Loans and visa
versa, (v) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (vi) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and provided further that any consent of
the Parent Borrower or any Foreign Subsidiary Borrower otherwise
required under this paragraph shall not be required if an Event of
Default under Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment
and Acceptance 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
(provided that any liability of the Parent Borrower or any Foreign
Subsidiary Borrower to such assignee under Section 2.15, 2.16 or 2.17
shall be limited to the amount, if any, that would have been payable
thereunder by the Parent Borrower or any Foreign Subsidiary Borrower in
the absence of such assignment), and the assigning Lender thereunder
shall, to
144
the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case
of an Assignment and Acceptance covering all of the 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 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose
as an agent of the Parent Borrower and the Foreign Subsidiary
Borrowers, 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
Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and
Holdings, the Parent Borrower, the Foreign Subsidiary Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may 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,
notwithstanding notice to the contrary. The Register shall be available
for inspection by the Parent Borrower, the Foreign Subsidiary
Borrowers, the Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Parent
Borrower or any Foreign Subsidiary Borrower, the Administrative Agent,
the Issuing Bank or the Swingline Lender, sell participations to one or
more banks or other
145
entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided 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 and (iii) Holdings, the Parent
Borrower, the Foreign Subsidiary Borrowers, the Administrative Agent,
the Issuing Bank 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. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Parent
Borrower and the Foreign Subsidiary Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to para graph (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive
any greater payment under Section 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the prior written
consent of the Parent Borrower and, to the extent applicable, each
relevant Foreign Subsidiary Borrower. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Parent Borrower and, to the extent
applicable, each relevant Foreign Subsidiary Borrower is notified of
the participation sold to such Participant and such Participant agrees,
for the benefit of the Parent Borrower and, to the extent applicable,
each relevant Foreign Subsidiary Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under
146
this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
SECTION 10.05. Survival. All covenants, agree ments,
representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or
on its behalf and notwithstanding that the Administrative Agent, the
Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee
or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections
2.15, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement, the other Loan
Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract
among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Admini strative Agent
shall have received counterparts hereof which, when taken together,
bear the signatures of each of
147
the other parties hereto, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of
Default shall have occurred and be continuing, each Lender and each of
its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final)
at any time held and other obligations at any time owing by such Lender
or Affiliate to or for the credit or the account of the Parent Borrower
or any Foreign Subsidiary Borrower against any of and all the
obligations of the Parent Borrower or any Foreign Subsidiary Borrower
now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each of Holdings, the Parent Borrower and each
Foreign Subsidiary Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District
of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any
148
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against Holdings, the Parent
Borrower, any of the Foreign Subsidiary Borrowers or their properties
in the courts of any jurisdiction.
(c) Each of Holdings, the Parent Borrower and each
Foreign Subsidiary Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement or any other Loan Document will affect
the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 10.10. 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 ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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 AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings
and the Table of Contents used herein are for convenience of reference
only, are not part of this
149
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the
Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Lender
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential pursuant to the terms hereof), (b) to the
extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction
relating to the Parent Borrower, any Foreign Subsidiary Borrower and
their respective obligations or (iii) any direct or indirect
contractual counterparty (or its advisors) to any swap transaction
relating to a Lender's obligations hereunder, (g) with the consent of
the Parent Borrower or (h) to the extent such Information (i) is
publicly available at the time of disclosure or becomes publicly
available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than Holdings,
the Parent Borrower or
150
any Subsidiary (including the Receivables Subsidiary and the Saturn
Subsidiary). For the purposes of this Section, "Information" means all
information received from Holdings, the Parent Borrower or any
Subsidiary (including the Receivables Subsidiary and the Saturn
Subsidiary) relating to Holdings, the Parent Borrower or any Subsidiary
(including the Receivables Subsidiary and the Saturn Subsidiary) or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by Holdings, the Parent
Borrower or any Subsidiary (including the Receivables Subsidiary and
the Saturn Subsidiary); provided that, in the case of information
received from Holdings, the Parent Borrower or any Subsidiary
(including the Receivables Subsidiary and the Saturn Subsidiary) after
the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential
information.
SECTION 10.13. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable
to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.14. Judgment Currency. (a) The obligations
hereunder of the Parent Borrower and the Foreign Subsidiary Borrowers
and under the other Loan Documents to make payments in Dollars or in
the Foreign Currencies, as the case may be, (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,
the Collateral Agent or a Lender of the full amount of the Obligation
Currency expressed to be payable to the Administrative Agent,
Collateral Agent or Lender under this Agreement or the other Loan
Documents. If, for the purpose of obtaining or enforcing judgment
against the Parent Borrower, any Foreign Subsidiary Borrower or any
other Loan 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
151
Currency, the conversion shall be made, at the Dollar Equivalent of
such amount, 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 Parent Borrower and each
Foreign Subsidiary Borrower, as the case may be, covenants and agrees
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 Dollar
Equivalent, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
SECTION 10.15. Effectiveness of the Amendment and
Restatement; Original Credit Agreement. This Agreement shall become
effective on the Effective Date, and thereafter shall be binding upon
and inure to the benefit of the parties hereto and the parties to the
Original Credit Agreement and their respective successors and assigns.
Until this Agreement becomes effective, the Original Credit Agreement
shall remain in full force and effect and shall not be affected hereby.
After the Effective Date, all obligations of Holdings, the Parent
Borrower and the Foreign Subsidiary Borrowers under the Original Credit
Agreement shall become obligations of Holdings, the Parent Borrower and
the Foreign Subsidiary Borrowers hereunder, secured by the Liens
granted under the Security Documents, and the provisions of the
Original Credit Agreement shall be superseded by the provisions hereof.
Except as otherwise expressly stated hereunder, the term of this
Agreement is for all purposes deemed to have commenced on the Effective
Date.
IN WITNESS WHEREOF, the parties hereto have caused
this Amended and Restated Credit Agreement to be duly executed by their
respective authorized officers as of the day and year first above
written.
METALDYNE CORPORATION,
by
/s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
METALDYNE COMPANY LLC,
by
/s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
Collateral Agent and Swingline
Lender,
by
/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Managing Director
153
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication
Agent,
by
/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
by
/s/ Xxx X. Xxxxxx
-----------------
Name: Xxx X. Xxxxxx
Title: Associate
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a FIRST UNION NATIONAL BANK),
individually and as Documentation
Agent,
by
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK, individually and
as Documentation Agent,
by
/s/ Xxxxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Senior Vice President
BANK ONE, NA, individually and as
Documentation Agent,
by
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
154
SIGNATURE PAGE TO THE AMENDED AND
RESTATED CREDIT AGREEMENT, WITH
RESPECT TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 28, 2000, AMONG
METALDYNE CORPORATION, METALDYNE
COMPANY LLC, THE SUBSIDIARY TERM
BORROWERS, THE FOREIGN SUBSIDIARY
BORROWERS, THE LENDERS, JPMORGAN
CHASE BANK, AS ADMINISTRATIVE AGENT,
COLLATERAL AGENT, SWINGLINE LENDER
AND ISSUING BANK, CREDIT SUISSE
FIRST BOSTON, AS SYNDICATION AGENT,
COMERICA BANK, AS DOCUMENTATION
AGENT, FIRST UNION NATIONAL BANK, AS
DOCUMENTATION AGENT, NATIONAL CITY
BANK, AS DOCUMENTATION AGENT, AND
BANK ONE, NA, AS DOCUMENTATION
AGENT.
BNP PARIBAS
by
/s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Director
by
/s/ Xxxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
IKB CAPITAL CORPORATION
by
/s/ Xxxxx Xxxxxx
-------------------
Name: Xxxxx Xxxxxx
Title: President
155
NATEXIS BANQUES POPULAIRES
by
/s/ Xxxxx X. Xxxxxx, Xx.
------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
by
/s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
TORONTO DOMINION (NEW YORK), INC.
by
/s/ Xxxx Xxxxxx
-------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXXXXXXX SENIOR FLOATING RATE
FUND,
by
/s/ Xxxx Xxxxxxxx
-------------------
Name: Xxxx Xxxxxxxx
Title: Manager
KZH CNC LLC
by
/s/ Xxxxx Xxx
-------------------
Name: Xxxxx Xxx
Title: Authorized Agent
156
THE SUMITOMO TRUST & BANKING CO.,
LTD. NEW YORK BRANCH
by
/s/ Xxxxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
TRAVELERS CORPORATE LOAN FUND INC.
By Travelers Asset Management
International Company, LLC
by
/s/ Xxxxxxx X. XxXxxxxx
-----------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Assistant Investment Officer
GENERAL ELECTRIC CAPITAL CORPORATION
by
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Duly Authorized Signatory
