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EXHIBIT 4.1
AETNA INDUSTRIES, INC.
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AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 10, 1998
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THE LENDERS PARTY HERETO
AND
NBD BANK, AS AGENT
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TABLE OF CONTENTS
Article Page
ARTICLE 1 DEFINITIONS.......................................................................................1
1.1 Certain Definitions.........................................................................1
1.2 Other Definitions; Rules of Construction. specifically provided............................17
ARTICLE 2 THE COMMITMENT, THE SWINGLINE FACILITY AND THE ADVANCES..........................................18
2.1 Commitment of the Lenders and the Swingline Facility.......................................18
2.2 Termination and Reduction of Commitments...................................................19
2.3 Fees.......................................................................................20
2.4 Disbursement of Advances...................................................................21
2.5 Conditions for First Disbursement..........................................................22
(a) Corporate Documents...................................................................22
(b) Notes.................................................................................23
(c) Security Documents....................................................................23
(d) Casualty and Other Insurance..........................................................23
(e) Legal Opinions........................................................................23
(f) Fees..................................................................................23
(g) Subordinated Debt Documents...........................................................23
(h) Miscellaneous.........................................................................23
2.6 Further Conditions for Disbursement........................................................21
2.7 Subsequent Elections as to Loans...........................................................24
2.8 Limitation of Requests and Elections.......................................................24
2.9 Minimum Amount; Limitation on Number of Loans; Etc.........................................25
2.10 Borrowing Base Adjustments.................................................................25
2.11 Security and Collateral....................................................................26
ARTICLE 3 PAYMENTS AND PREPAYMENTS OF ADVANCES.............................................................26
3.1 Principal Payments and Prepayments.........................................................26
3.2 Interest Payments..........................................................................24
3.3 Letter of Credit Reimbursement Payments....................................................27
3.4 Payment Method.............................................................................29
3.5 No Setoff or Deduction.....................................................................29
3.6 Payment on Non-Business Day; Payment Computations..........................................29
3.7 Additional Costs...........................................................................30
3.8 Illegality and Impossibility.
3.9 Indemnification............................................................................31
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Article Page
ARTICLE 4 REPRESENTATIONS AND WARRANTIES...................................................................32
4.1 Corporate Existence and Power..............................................................32
4.2 Corporate Authority........................................................................32
4.3 Binding Effect.............................................................................32
4.4 Subsidiaries...............................................................................32
4.5 Litigation.................................................................................32
4.6 Financial Condition........................................................................33
4.7 Use of Advances............................................................................33
4.8 Consents, Etc..............................................................................33
4.9 Taxes......................................................................................33
4.10 Title to Properties........................................................................33
4.11 Borrowing Base.............................................................................34
4.12 ERISA......................................................................................34
4.13 Disclosure.................................................................................34
4.14 Environmental Matters......................................................................34
4.15 No Default.................................................................................35
4.16 No Burdensome Restrictions.................................................................35
4.17 Other Debt.................................................................................35
ARTICLE 5 COVENANTS........................................................................................36
5.1 Affirmative Covenants......................................................................36
5.2 Negative Covenants.........................................................................39
ARTICLE 6 DEFAULT..........................................................................................44
6.1 Events of Default..........................................................................44
(a) Nonpayment............................................................................44
(b) Misrepresentation.....................................................................44
(c) Certain Covenants.....................................................................45
(d) Other Defaults........................................................................45
(e) Cross Default.........................................................................45
(f) Judgments.............................................................................45
(g) ERISA.................................................................................45
(h) Insolvency, Etc.......................................................................46
(i) Loan Documents........................................................................46
(j) Change in Control.....................................................................46
6.2 Remedies...................................................................................46
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ARTICLE
ARTICLE 7 THE AGENT AND THE BANKS..........................................................................47
7.1 Appointment and Authorization..............................................................47
7.2 Agent and Affiliates.......................................................................47
7.3 Scope of Agent's Duties....................................................................48
7.4 Reliance by Agent..........................................................................48
7.5 Default....................................................................................48
7.6 Liability of Agent.........................................................................48
7.7 Nonreliance on Agent and Other Lenders.....................................................48
7.8 Indemnification............................................................................49
7.9 Successor Agent............................................................................50
7.10 Sharing of Payments........................................................................50
7.11 Withholding Tax Exemption..................................................................51
ARTICLE 8 GUARANTY.........................................................................................51
8.1 Guarantee of Obligations...................................................................51
8.2 Nature of Guaranty.........................................................................52
8.3 Waivers and Other Agreements...............................................................52
8.4 Obligations Absolute.......................................................................52
8.5 No Investigation by Lenders or Agent.......................................................53
8.6 Indemnity..................................................................................53
8.7 Subordination, Subrogation, Etc............................................................53
8.8 Waiver.....................................................................................53
ARTICLE 9 MISCELLANEOUS....................................................................................53
9.1 Amendments, Etc............................................................................53
9.2 Notices....................................................................................54
9.3 Reliance on and Survival of Various Provisions.............................................55
9.4 Expenses; Indemnification..................................................................55
9.5 Successors and Assigns.....................................................................56
9.6 Counterparts...............................................................................59
9.7 Governing Law..............................................................................59
9.8 Table of Contents and Headings.............................................................60
9.9 Construction of Certain Provisions.........................................................60
9.10 Integration and Severability...............................................................60
9.11 Independence of Covenants..................................................................60
9.12 Interest Rate Limitation...................................................................60
9.13 Waiver of Jury Trial.......................................................................60
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EXHIBITS
Exhibit A Borrowing Base Certificate
Exhibit B-1 Facility A Note
Exhibit B-2 Facility B Note
Exhibit B-3 Swingline Note
Exhibit C Security Agreement
Exhibit D Request for Advance
Exhibit E Request for Continuation or Conversion
Exhibit F Assignment and Acceptance
Exhibit G Assumption Agreement
SCHEDULES
Schedule 1.1(a) SOFEDIT Shareholders
Schedule 1.1(b) Subordinated Debt Documents
Schedule 4.4 Subsidiaries
Schedule 4.5 Litigation
Schedule 4.12 ERISA
Schedule 4.14 Environmental Matters
Schedule 5.2(f) Indebtedness
Schedule 5.2(g) Liens
Schedule 5.2(l) Investments, Loans and Advances
Schedule 5.2(m) Transactions with Affiliates
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 10, 1998
(this "Agreement"), is by and among AETNA INDUSTRIES, INC. a Michigan
corporation (the "Company"), the Guarantor(s) party hereto from time to time,
the lender(s) party hereto from time to time (collectively, the "Lenders" and
individually, a "Lender") and NBD BANK, a Michigan banking corporation, as agent
for the Lenders (in such capacity, the "Agent").
INTRODUCTION
A. The Company, the Banks party thereto and the Agent are parties to a
Credit Agreement dated as of May 2, 1996, as amended (the "Existing Credit
Agreement") pursuant to which such Banks agreed, subject to the terms and
conditions thereof, to extend credit to the Borrowers.
B. The Company desires to amend and restate the Existing Credit
Agreement to provide a revolving credit facility, including letters of credit, a
revolving credit facility to make term loans, and a revolving credit facility to
issue standby letters of credit, in the aggregate principal amount of up to
$56,500,000, in order to provide funds and other financial accommodations for
working capital and its other general corporate purposes, and the Lenders are
willing to establish such a credit facility in favor of the Company on the terms
and conditions herein set forth.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall have
the following respective meanings:
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate", when used with respect to any person shall mean any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
"Applicable Lending Office" shall mean, with respect to any Advance
made by any Lender or with respect to such Lender's Commitment, the office of
such Lender or of any Affiliate of such Lender located at the address specified
as the applicable lending office for such Lender set forth next to the name of
such Lender in the signature pages hereof or any other office or Affiliate of
such Lender or of any Affiliate of such Lender hereafter selected and notified
to the Company and the Agent by such Lender.
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"Applicable Margin" shall mean, with the respect to any Facility A
Loan, commitment fees payable under Section 2.3(a) or letter of credit fees
payable pursuant to Section 2.3(b)(i), as the case may be, the applicable margin
set forth in the table below based on the Funded Debt Ratio and the Senior
Secured Funded Debt Ratio, as adjusted on the first day of each fiscal quarter
based on the Funded Debt Ratio and the Senior Secured Funded Debt Ratio as of
the last day of the fiscal quarter immediately preceding the fiscal quarter most
recently ended, provided that the Applicable Margin in effect on the first day
of any Eurodollar Interest Period for any Eurodollar Rate Loan shall remain in
effect for the entire Eurodollar Interest Period and, notwithstanding anything
herein to the contrary, upon or during the continuance of any Event of Default,
the Applicable Margin shall be based on the highest possible Applicable Margin
described in the table below, regardless of the Funded Debt Ratio and the Senior
Secured Funded Debt Ratio:
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APPLICABLE MARGIN (EXPRESSED IN BASIS POINTS)
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Senior Secured Funded Debt Ratio Eurodollar Floating Commitment Letter of
Funded Debt Rate Loan Rate Loan Fee Credit
Commission
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>1.50 and =>4.25 275.00 150.00 50.00 275.00
-
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<1.50 and * >4.25 250.00 125.00 50.00 250.00
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=>3.50<=4.25 225.00 100.00 50.00 225.00
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=>2.75<3.50 175.00 50.00 37.50 175.00
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=>2.00<2.75 125.00 0.00 25.00 125.00
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<2.00 100.00 0.00 25.00 100.00
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*Initial Pricing
"Borrowing" shall mean the aggregation of Advances, including each
Letter of Credit issuance, of the Lenders to be made to the Company, or
continuations and conversions of any Loans, made pursuant to Article II on a
single date and, in the case of any Loans, for a single Eurodollar Interest
Period, which Borrowings may be classified for purposes of this Agreement by
reference to the type of Loans or the type of Advance comprising the related
Borrowing, e.g., a "Eurodollar Rate Borrowing" is a Borrowing comprised of
Eurodollar Rate Loans and a "Letter of Credit Borrowing" is an Advance comprised
of a single Letter of Credit.
"Borrowing Base" shall mean, as of any date, the lesser of (a) the sum,
without duplication, of (i) an amount equal to 85% of the value of Eligible
Accounts Receivable plus (ii) an amount equal to 60% of the value of Eligible
Inventory not to exceed $9,500,000, plus (iii) an amount equal to 50% of
Eligible Tooling Inventory not to exceed (A) $15,000,000 from the Effective Date
hereof to and including June 30, 1999 or (B) $5,000,000 from and including July
1, 1999 and thereafter, plus (iv) 80% of the value of Eligible Fixed Assets
owned by the Company and Manufacturing as of the Effective Date, or (b) the
amount calculated under clause (b) of the definition of "Permitted Indebtedness"
set forth in the Senior Note Indenture; provided, however, that the Borrowing
Base shall be determined on the basis of the most current Borrowing Base
Certificate required to be delivered by the Company hereunder.
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"Borrowing Base Certificate" for any date shall mean an appropriately
completed report as of such date in substantially the form of Exhibit A hereto,
certified as true and correct as of such date by a duly authorized officer of
the Company.
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"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which the Agent is not open to the public for carrying on substantially
all of its banking functions in Detroit, Michigan.
"Capital Lease" of any person shall mean any lease which, in accordance
with generally accepted accounting principles, is or should be capitalized on
the books of such person.
"Change of Control" shall mean the occurrence of any event or
transaction or series of related transactions in connection with or as a
consequence of which (i) prior to a registered initial public offering of the
Common Stock of the Company, MS (directly or indirectly) or Holdings shall cease
to own 100% of the Company's outstanding Capital Stock, clear of any Liens;
(ii)(A) prior to a registered initial public offering of the Common Stock of MS
or Holdings, the CVC Investor Group and the SOFEDIT Shareholders, collectively,
shall cease to own Common Stock of, as the case may be, MS or Holdings,
representing not less than 51% of the common equity interest in, as the case may
be, MS's or Holding's, Capital Stock (whether voting or non-voting) on a
fully-diluted basis assuming the exercise of all securities exercisable,
convertible or exchangeable for or into common equity interests or (B) after a
registered initial public offering of the Common Stock of MS, Holdings or the
Company, the CVC Investor Group and the SOFEDIT Shareholders, collectively,
shall cease to own Common Stock of, MS, Holdings or the Company, as the case may
be, representing not less than 20% of the common equity interest in MS's,
Holding's or, as the case may be, the Company's Capital Stock (whether voting or
non-voting) on a fully-diluted basis assuming the exercise of all securities
exercisable, convertible or exchangeable for or into common equity interest; or
(iii) after a registered initial public offering of the Common Stock of MS,
Holdings or the Company, any Person (or group of Persons (as such term is used
under the Exchange Act) shall own, beneficially or of record, a greater
percentage of the common equity interests or total combined voting power of all
classes or Capital Stock of MS, Holdings or the Company, as the case may be,
than is so owned by the CVC Investor Group. For purposes of this definition, the
term "CAPITAL STOCK" of any Person means any and all shares, interests,
participations, or other equivalents, (however designated) of its capital stock
and any rights (other than debt securities convertible into capital stock),
warrants or options to acquire such capital stock and the term "COMMON STOCK"
means, as applicable, the Common Stock, par value $.01, of Holdings and the
Common Stock, par value $.01 of the Company and, collectively, the Class A
Common Stock, par value $.01 per share, and Class B Common Stock, par value
$0.01 per share, of MS, and, in each case, any Capital Stock issued with respect
thereto in a stock consolidation, reclassification or recapitalization.
"CVC" shall mean Citicorp Venture Capital, Ltd.
"CVC Investor Group" means (i) CVC, (ii) Citicorp and any direct or
indirect wholly owned subsidiary of Citicorp; (iii) any officer, director or
employee of CVC, Citicorp or any wholly owned subsidiary of Citicorp, and any
spouse or lineal descendant (including by adoption and stepchildren) of any
officer, director or employee of CVC, Citicorp or any wholly owned subsidiary of
Citicorp and any trust, corporation or partnership the majority in interest of
the beneficiaries, stockholders or partners of which consists of employees,
officers or directors of CVC, Citicorp or any wholly owned subsidiary of
Citicorp provided that none of the Persons listed in the preceding provisions of
this subclause (iii) shall be included as members of the CVC Investor Group
unless CVC owns at least a majority of the Common Stock of MS or, if applicable,
Holdings, owned by CVC and all of such Persons, taken together.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
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"Commitments" shall mean the Facility A Commitments, the Facility B
Commitments, and the Facility C Commitments.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more persons
of the amounts signified by such term for all such persons determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Contingent Liabilities" of any person shall mean, as of any date, all
obligations of such person or of others for which such person is contingently
liable, as obligor, guarantor, surety, accommodation party, partner or in any
other capacity, or in respect of which obligations such person assures a
creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business), including without limitation all reimbursement
obligations of such person in respect of any letters of credit, surety bonds or
similar obligations (including, without limitation, bankers acceptances) and all
obligations of such person to advance funds to, or to purchase assets, property
or services from, any other person in order to maintain the financial condition
of such other person.
"Contractual Obligation" shall mean as to any person, any provision of
any security issued by such person or of any agreement, instrument or other
undertaking to which such person is a party or by which it or any of its
property is bound.
"Default" shall mean any event or condition which might become an Event
of Default with notice or lapse of time or both.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"EBITDA" means, for any period, Net Income for such period plus all
amounts deducted in determining such Net Income on account of (a) Interest
Expense (without giving effect to the proviso at the end of such definition) and
(b) income taxes and the State of Michigan single business tax, and (c)
depreciation and amortization expense, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
"Eligible Accounts Receivable" shall mean, as of any date, those trade
accounts receivable owned by the Company or Manufacturing which are payable in
Dollars and in which the Company or Manufacturing has granted to the Agent for
the benefit of the Lenders and the Agent a first-priority perfected security
interest pursuant to the Security Agreement, valued at the face amount thereof
less sales, excise or similar taxes and less returns, discounts, claims, credits
and allowances of any nature at any time issued, owing, granted, outstanding,
available or claimed, but shall not include any such account receivable (a) that
is not a bona fide existing obligation created by the sale and actual delivery
of inventory, goods or other property or the furnishing of services or other
good and sufficient consideration to customers of the Company or Manufacturing
in the ordinary course of business, (b) that is more than 90 days past due or
that remains outstanding more than 90 days after the earlier of the date of the
invoice or the shipment of the related inventory, goods or other property or the
furnishing of the related services or other consideration, (c) that is subject
to any dispute, contra-account, defense, offset or counterclaim or any Lien
(except those in favor of the Agent for the benefit of itself and the Lenders
under the Security Documents and other Permitted Liens which are junior in
priority to those in favor of the Agent), except as being contested by the
Company or Manufacturing in good faith, or the inventory,
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goods, property, services or other consideration of which such account
receivable constitutes proceeds is subject to any such Lien, provided that any
account receivable shall be classified as ineligible only to the extent of any
such dispute, contra-account, offset or counterclaim or any Lien, (d) in respect
of which the inventory, goods, property, services or other consideration have
been rejected or the amount is in dispute, except as being contested by the
Company or Manufacturing in good faith, (e) that is due from any Affiliate or
Subsidiary of the Company, (f) that has been classified by the Company or
Manufacturing as doubtful or has otherwise failed to meet established or
customary credit standards of the Company or Manufacturing, (g) that is payable
by any person located outside the United States (which shall not be deemed to
include any territories of the United States) or Canada and are not supported by
letters of credit issued to the Agent by commercial banks, and in form and
substance, acceptable to the Agent, (h) that is payable by the United States or
any of its departments, agencies or instrumentalities or by any state or other
governmental entity, (i) that is payable by any person as to which 50% or more
of the aggregate amount of such accounts receivable payable by such person to
the Company or Manufacturing do not otherwise constitute Eligible Accounts
Receivable, other than due to an offset which General Motors or Chrysler has due
to steel purchases by the Company or Manufacturing from General Motors or
Chrysler, (j) that is payable by any person that is the subject of any
proceeding seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up or reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property, or has admitted in writing its
inability to pay its debts generally or has made a general assignment for the
benefit of creditors, (k) that is evidenced by a promissory note or other
negotiable instrument, (l) that is subordinate or junior in right or priority of
payment to any other obligation or claim, or (m) that for any other reason is at
any time reasonably deemed by the Agent to be ineligible.
"Eligible Fixed Assets" shall mean, as of any date, the equipment owned
by the Company or Manufacturing in which the Company or Manufacturing has
granted to the Agent for the benefit of the Lenders a first-priority security
interest pursuant to the Security Agreement, valued, in the case of any
equipment owned as of the Effective Date, at the orderly liquidation value as
determined by appraisals acceptable to the Required Lenders, and, in the case of
any equipment purchased after the Effective Date, at the hard cost of such
equipment, but not including any such fixed asset (a) that is not useable in the
business of the Company or Manufacturing, (b) that is located outside the United
States (which shall not be deemed to include any territories of the United
States) or Canada, (c) that is subject to, or any accounts or other proceeds
resulting from the sale or other disposition thereof could be subject to, any
Lien (except those in favor of the Agent for the benefit of itself and the
Lenders under the Security Documents and other Permitted Liens which are junior
in priority to those in favor of the Agent), (d) that is not in the possession
of the Company or Manufacturing (provided that such assets shall be deemed in
possession of the Company or Manufacturing if they are located on premises owned
or leased by the Company or Manufacturing), (e) that is held for sale or lease
or is subject of any lease, (f) that is subject to any trademark, trade name or
licensing arrangement, or any law, rule or regulation, that would limit or
impair the ability of the Lenders and the Agent to promptly exercise all rights
of the Lenders and the Agent under the Security Documents, (g) if such fixed
asset is located on premises not owned by the Company or Manufacturing and, on
or before sixty (60) days after the Effective Date, the landlord or other owner
of such premises shall not have waived its distraint, lien and similar rights
with respect to such fixed asset, and shall not have agreed to permit the
Lenders and the Agent to enter such premises after the occurrence of an Event of
Default pursuant to a waiver and agreement of such person in favor of and in
form and substance acceptable to the Agent (h) with respect to which any
insurance proceeds are not payable to the Lenders and the Agent as a lender loss
payee or are payable to any loss payee other than the Lenders and the Agent or
the Company or Manufacturing or (i) that for any other reason is at any time
reasonably deemed by the Agent to be ineligible.
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"Eligible Inventory" shall mean, as of any date, that inventory owned
by the Company or Manufacturing that constitutes raw materials, work in process
or finished goods in which the Company or Manufacturing has granted to the Agent
for the benefit of the Lenders a first-priority perfected security interest
pursuant to the Security Agreement, valued at the lower of cost or market in
accordance with generally accepted accounting principles, but shall not include
any such inventory (a) that does not constitute raw materials or finished goods
readily salable or usable in the business of the Company or Manufacturing, (b)
that is located outside the United States (which shall not be deemed to include
any territories of the United States) or Canada, (c) that is subject to, or any
accounts or other proceeds resulting from the sale or other disposition thereof
could be subject to, any Lien (except those in favor of the Agent for the
benefit of itself and the Lenders under the Security Documents and other
Permitted Liens which are junior in priority to those in favor of the Agent),
including any sale on approval or sale or return transaction or any consignment,
(d) that is not in the possession of the Company or Manufacturing (provided that
such assets shall be deemed in possession of the Company or Manufacturing if
they are located on premises owned or leased by the Company or Manufacturing),
(e) that is held for lease or is the subject of any lease, (f) that is subject
to any trademark, trade name or licensing arrangement, or any law, rule or
regulation, that could materially limit or impair the ability of the Lenders and
the Agent to promptly exercise all rights of the Lenders and the Agent under the
Security Documents, (g) if such inventory is located on premises not owned by
the Company or Manufacturing and, on or before sixty (60) days after the
Effective Date, the landlord or other owner of such premises shall not have
waived its distraint, lien and similar rights with respect to such inventory and
shall not have agreed to permit the Lenders and the Agent to enter such premises
pursuant to a waiver and agreement of such person in favor of and in form and
substance acceptable to the Lenders and the Agent, (h) with respect to which any
insurance proceeds are not payable to the Lenders and the Agent as a lender loss
payee or are payable to any loss payee other than the Lenders and the Agent or
the Company or Manufacturing, or (i) that for any other reason is at any time
reasonably deemed by the Agent to be ineligible.
"Eligible Tooling Inventory" shall mean such portion of long term
assets of the Company or Manufacturing which consists of dies, molds, tooling
and similar items (collectively, "Tooling") provided that each of the following
conditions are satisfied: (a) the sale of such Tooling is covered under specific
written purchase orders or agreements between the Company or Manufacturing and
the purchaser of such Tooling, and the terms and provisions of all such purchase
orders and agreements and the purchaser thereof must be satisfactory to the
Agent, (b) either (i) the Agent has a first priority, enforceable security
interest in such long terms assets, and the purchaser of such Tooling, together
with any other entity who has a Lien on such purchaser's assets, shall have
executed a letter in favor of the Agent acknowledging that neither of them have
any rights with respect to such Tooling or (ii) the purchaser of such Tooling
shall have granted a first priority, enforceable security interest in such
Tooling to the Company or Manufacturing, which security interest shall be
assigned to the Agent, and any entity which has a lien on assets of such
purchaser shall have subordinated its lien on such Tooling to the lien granted
by such purchaser to the Company or Manufacturing and assigned to the Agent, all
of which shall be in form and substance satisfactory to the Required Lenders,
and (c) the unpaid balance of such Tooling as represented by the Company or
Manufacturing is not subject to any defense, counterclaim, setoff,
contra-account, credit, allowance or adjustment.
"Environmental Laws" at any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards promulgated by the government of the United States
of America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein, or by any court, agency,
instrumentality,
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regulatory authority or commission of any of the foregoing concerning the
protection of, or regulating the discharge of substances into, the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which, together with the Company or any Guarantor, would be
treated as a single employer under Section 414 of the Code and the regulations
promulgated thereunder.
"Eurodollar Business Day" shall mean, with respect to any Eurodollar
Rate Loan, a day which is both a Business Day and a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Eurodollar Interest Period" shall mean, with respect to any Eurodollar
Rate Loan, the period commencing on the day such Eurodollar Rate Loan is made or
converted to a Eurodollar Rate Loan and ending on the day which is one, two,
three, six months, or, in connection with Eurodollar Rate Loans under Facility A
only and if available to the Required Lenders, twelve months, thereafter, as the
Company may elect under Section 2.4 or 2.7, and each subsequent period
commencing on the last day of the immediately preceding Eurodollar Interest
Period and ending on the day which is one, two, three, six or twelve months
thereafter, as the Company may elect under Section 2.4 or 2.7, provided,
however, that (a) any Eurodollar Interest Period which commences on the last
Eurodollar Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Eurodollar Business Day of the appropriate subsequent
calendar month, (b) each Eurodollar Interest Period which would otherwise end on
a day which is not a Eurodollar Business Day shall end on the next succeeding
Eurodollar Business Day or, if such next succeeding Eurodollar Business Day
falls in the next succeeding calendar month, on the next preceding Eurodollar
Business Day, and (c) no Eurodollar Interest Period shall be permitted which
would end after Termination Date A with respect to the Facility A Loans or the
Maturity Date with respect to any Facility B Loans.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Rate Loan
and the related Eurodollar Interest Period, the per annum rate that is equal to
the sum of:
(a) (i) with respect to Facility A Loans, the Applicable Margin,
and (ii) with respect to Facility B Loans, 250 basis points during the period
from and including the Effective Date to and including December 30, 1999, or
275 basis points on December 31, 1999 and thereafter, plus
(b) the rate per annum obtained by dividing (i) the per annum rate
of interest at which deposits in Dollars for such Eurodollar Interest Period and
in an aggregate amount comparable to the amount of such Eurodollar Rate Loan
to be made by the Agent in its capacity as a Lender hereunder are offered to
the Agent by other prime banks in the London interbank market at approximately
11:00 a.m. London time on the second Eurodollar Business Day prior to the first
day of such Eurodollar Interest Period by (ii) an amount equal to one minus
the stated maximum rate (expressed as a decimal) of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) that are specified on the first day of such Eurodollar
Interest Period by the Board of Governors of the Federal Reserve System (or
any successor agency thereto) for determining the maximum reserve requirement
with respect to eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank of such
System;
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all as conclusively determined by the Agent, such sum to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%).
"Eurodollar Rate Loan" shall mean any Loan which bears interest at the
Eurodollar Rate.
"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
"Export" shall mean Aetna Export Sales Corp., a corporation organized
under the laws of the United States Virgin Islands.
"Facility A" shall mean the credit facility described in Section 2.1
(a).
"Facility A Advance" shall mean any Revolving Credit Loan or Facility A
Letter of Credit Advance under Section 2.1(a).
"Facility A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Credit Loans and to participate in
Facility A Letter of Credit Advances made through the Agent pursuant to Section
2.1(a), in amounts not exceeding in aggregate principal amount outstanding the
respective Facility A commitment amounts for each Lender set forth next to the
name of each such Lender in the signature pages hereof, as such amounts may be
reduced or modified from time to time pursuant to Section 2.2(a) or Section 8.6.
"Facility A Letter of Credit" shall mean a standby letter of credit or
a commercial letter of credit having a stated expiry date or a date upon which
the draft must be reimbursed not later than twelve months after the date of
issuance and not later than the fifth Business Day before Termination Date A
issued by the Agent on behalf of the Lenders for the account of the Company
under an application and related documentation acceptable to the Agent
requiring, among other things, immediate reimbursement by the Company to the
Agent in respect of all drafts or other demand for payment honored thereunder
and all expenses paid or incurred by the Agent relative thereto.
"Facility A Note" shall mean any promissory note of the Company
evidencing the Facility A Loans, in substantially the form annexed hereto as
Exhibit B-1, as amended or modified from time o time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Facility B" shall mean the credit facility described in Section 2.1
(b).
"Facility B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Facility B Loans pursuant to Section 2.1(b),
in amounts not exceeding in aggregate principal amount outstanding the
respective Facility B commitment amounts for each Lender set forth next to the
name of each such Lender in the signature pages hereof, as such amount may be
reduced or modified from time to time pursuant to Section 2.2(a) or Section 8.6.
"Facility B Loan" shall mean any borrowing under Section 2.4 evidenced
by the Facility B Notes and made pursuant to Section 2.1(a).
"Facility B Note" shall mean any promissory note of the Company
evidencing the Facility B Loans, in substantially the same form annexed hereto
as Exhibit B-2, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
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"Facility C" shall mean the credit facility described in Section 2.1
(c).
"Facility C Advance" shall mean any Facility C Letter of Credit Advance
under Section 2.1(c).
"Facility C Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to participate in Facility C Letters of Credit made
through the Agent pursuant to Section 2.1(c), in amounts not exceeding in
aggregate principal amount outstanding the respective Facility C commitment
amounts for each Lender set forth next to the name of each such Lender in the
signature pages hereof as such amount may be reduced or modified from time to
time pursuant to Section 2.2(a) or Section 8.6.
"Facility C Letter of Credit" shall mean a standby letter of credit
having a stated expiry date or a date upon which the draft must be reimbursed
not later than twelve months after the date of issuance and not later than the
fifth Business Day before Termination Date C issued by the Agent on behalf of
the Lenders for the account of the Company under an application and related
documentation acceptable to the Agent requiring, among other things, immediate
reimbursement by the Company to the Agent in respect of all drafts or other
demand for payment honored thereunder and all expenses paid or incurred by the
Agent relative thereto.
"Federal Funds Rate" shall mean the per annum rate that is equal to the
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published by the
Federal Reserve Bank of New York for such day, or, if such rate is not so
published for any day, the average of the quotations for such rates received by
the Agent from three federal funds brokers of recognized standing selected by
the Agent in its discretion; all as conclusively determined by the Agent, such
sum to be rounded up, if necessary, to the nearest whole multiple of one
one-hundredth of one percent (1/100 of 1%), which Federal Funds Rate shall
change simultaneously with any change in such published or quoted rates.
"Fixed Charge Coverage Ratio" shall mean, as of any date, the ratio of
(a) EBITDA of the Company and its Subsidiaries, as calculated for the four
consecutive fiscal quarters of the Company most recently ended, plus Rental
Expense of the Company and its Subsidiaries for such period, to (b) Rental
Expense of the Company and its Subsidiaries for such period plus Interest
Expense of the Company and its Subsidiaries paid in cash by the Company and its
Subsidiaries during such period.
"Floating Rate" shall mean the per annum rate equal to the sum of (a)
(i) with respect to any Facility A Advance or Facility C Advance, the Applicable
Margin or (ii) with respect to any Facility B Loan, (A) 1.25% during the period
from and including the Effective Date to and including December 30, 1999 and (B)
1.50% on December 31, 1999 and thereafter, plus (b) the greater of (x) the Prime
Rate in effect from time to time, or (y) the sum of one percent (1%) per annum
plus the Federal Funds Rate in effect from time to time; which Floating Rate
shall change simultaneously with any change in such Prime Rate or Federal Funds
Rate, as the case may be.
"Floating Rate Loan" shall mean any Loan which bears interest at the
Floating Rate.
"Funded Debt" of any person, as of any date, shall mean: (a) all debt
for borrowed money and similar monetary obligations evidenced by bonds, notes,
debentures, Capital Lease obligations or otherwise, including without limitation
obligations in respect of the deferred purchase price of properties or assets,
in each case whether direct or indirect; (b) all liabilities secured by any Lien
existing on property owned or acquired subject thereto, whether or not the
liability secured thereby shall have been assumed; (c) all
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reimbursements obligations under outstanding letters of credit in respect of
drafts which (i) may be presented or (ii) have been presented and have not yet
been paid, and (d) all Contingent Liabilities relating to any of the obligations
of others similar in character to those described in the foregoing clauses (a)
through (c).
"Funded Debt Ratio" shall mean, as of any date, the ratio of (a) Funded
Debt as of such date to (b) EBITDA, as calculated for the four consecutive
fiscal quarters of the Company and its Subsidiaries on a consolidated basis most
recently ended.
"Generally Accepted Accounting Principles", "GAAP" or "generally
accepted accounting principles" shall mean generally accepted accounting
principles applied on a basis consistent with that reflected in the financial
statements referred to in Section 4.6.
"Guaranties" shall mean the guaranties entered into by each of the
Guarantors for the benefit of the Agent and the Lenders pursuant to Article VIII
of this Agreement, as amended or modified from time to time.
"Guarantor" shall mean Export, Holdings, MS, each Subsidiary of MS,
each Subsidiary of Holdings and each Subsidiary of the Company and each person
otherwise becoming a Subsidiary of the Company, or otherwise entering into a
Guaranty, from time to time, provided that no prohibitions exist under the
Senior Note Indenture to the execution of a Guaranty or other Loan Documents by
such person and provided, further, that SOFEDIT shall not be required to be a
Guarantor hereunder.
"Hazardous Materials" includes, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.) and in the
regulations adopted and publications promulgated pursuant thereto, or any other
federal, state or local government law, ordinance, rule or regulation.
"Hedging Contract" shall mean, with respect to any person, all
liabilities of such person under interest rate swap, cap or collar agreements,
currency exchange agreements and all similar agreements designed to protect such
person against fluctuations in interest rates or currency exchange rates.
"Holdings" shall mean Aetna Holdings, Inc., a Delaware corporation.
"Indebtedness" of any person shall mean, as of any date, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person as lessee under any Capital Lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such person whether or not the
obligation secured thereby shall have been assumed by such person (to the extent
of such Lien if such obligation is not assumed), (d) all obligations of such
person for the unpaid purchase price for goods, property or services acquired by
such person, except for trade accounts payable arising in the ordinary course of
business that are not materially past due, (e) all obligations of such person to
purchase goods, property or services where payment therefor is required
regardless of whether delivery of such goods or property or the performance of
such services is ever made or tendered (generally referred to as "take or pay
contracts"), (f) all liabilities of such person in respect of Unfunded Benefit
Liabilities under any Plan of such person or of any ERISA Affiliate, (g) all
obligations of such person in respect of any Hedging Contract (valued in an
amount equal to the highest termination payment, if any, that would be payable
by
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such person upon termination for any reason on the date of determination), and
(h) all Contingent Liabilities of such person.
"Interest Expense" means, for any period, total interest and related
expense (including, without limitation, that portion of any Capitalized Lease
obligation attributable to interest expense in conformity with Generally
Accepted Accounting Principles, amortization of debt discount, all capitalized
interest, the interest portion of any deferred payment obligations, all
commissions, discounts and other fees and charges owed with respect to letter of
credit and bankers acceptance financing, the net costs and net payments under
any interest rate hedging, cap or similar agreement or arrangement, prepayment
charges, agency fees, administrative fees, commitment fees and capitalized
transaction costs allocated to interest expense) and all dividends and other
distributions on any preferred capital stock of the Company paid, payable or
accrued during such period, without duplication for any period, with respect to
all outstanding Indebtedness of the Company and its Subsidiaries, all as
determined for the Company and its Subsidiaries on a consolidated basis for such
period in accordance with Generally Accepted Accounting Principles; provided,
however, that interest on Subordinated Debt which is not paid in cash or cash
equivalents but is paid by the issuance by the Company of a promissory note and
dividends and other distributions on any preferred capital stock of the Company
which are not paid in cash or cash equivalents shall be excluded from the
calculation of "Interest Expense" hereunder.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar
Rate Loan, the last day of each Interest Period with respect to such Eurodollar
Rate Loan and, in the case of any Interest Period exceeding three months, those
days that occur during such Interest Period at intervals of three months after
the first day of such Interest Period, and (b) in all other cases, the last
Business Day of each month occurring after the date hereof, commencing with the
first such Business Day occurring after the date of this Agreement.
"Interest Period" shall mean any Eurodollar Interest Period.
"Letter of Credit" shall mean any Facility A Letter of Credit or
Facility C Letter of Credit.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.4 made pursuant to Section 2.1 in which each Lender
acquires a pro rata risk participation pursuant to Section 2.4(d).
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b).
"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, conditional sale or title
retaining contract, sale and leaseback transaction, financing statement filing,
lessor's or lessee's interest under any lease, subordination of any claim or
right, or any other type of lien, charge, encumbrance, preferential arrangement
or other claim or right.
"Loan" shall mean any Revolving Credit Loan, any Swingline Loan, and
any Term Loan evidenced by the Notes and made pursuant to Section 2.1. Any such
Loan or portion thereof may also be denominated as a Floating Rate Loan or a
Eurodollar Rate Loan and such Loans are referred to herein as "types" of Loans.
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
the Security Documents and all other agreements, instruments and documents
executed pursuant thereto at any time.
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"Manufacturing" shall mean Aetna Manufacturing Canada Ltd., a Michigan
corporation.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations or condition (financial or otherwise) of the
Company and its Subsidiaries on a consolidated basis, (b) the ability of the
Company or any Guarantor to perform its obligations under any Loan Document, or
(c) the validity of enforceability of any Loan Document or the rights or
remedies of the Agent or the Lenders under any Loan Document.
"Maturity Date" shall mean the earlier to occur of (a) March 31, 2001
and (b) the date on which the maturity of the Facility B Loans is accelerated
pursuant to Section 6.2.
"MS" shall mean MS Acquisition Corp., a Delaware corporation.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" means, for any period, the net income (or loss) of the
Company and its Subsidiaries on a consolidated basis for such period taken as a
single accounting period, determined in accordance with Generally Accepted
Accounting Principles; provided that in determining Consolidated Net Income
there shall be excluded, without duplication: (a) the income of any Person
(other than a Subsidiary of the Company) in which any Person other than the
Company or any of its Subsidiaries has a joint interest or partnership interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Company or any of its Subsidiaries by such Person during such
period, (b) the income of any Person accrued prior to the date it becomes a
Subsidiary of the Company or is merged into or consolidated with the Company or
any of its Subsidiaries or that Person's assets are acquired by the Company or
any of its Subsidiaries, (c) the proceeds of any insurance policy, (d) gains
from the sale, exchange, transfer or other disposition of property or assets not
in the ordinary course of business of the Company and its Subsidiaries, and
related tax effects in accordance with Generally Accepted Accounting Principles,
(e) any other extraordinary or non-recurring gains of the Company or its
Subsidiaries, and related tax effects in accordance with Generally Accepted
Accounting Principles, and (f) the income of any Subsidiary of the Company to
the extent that the declaration or payment of dividends or similar distributions
by that Subsidiary of that income is not at the time permitted by operation of
the terms of its charter or of any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Subsidiary.
"Net Worth" shall mean, as of any date, the amount of any capital
stock, paid in capital and similar equity accounts plus (or minus in the case of
a deficit) the capital surplus and retained earnings of any Person, all in
accordance with Generally Accepted Accounting Principles.
"Notes" shall mean the Facility A Notes, Swingline Note and Facility B
Notes.
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"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of three percent (3%) per annum
plus the Floating Rate, (b) in respect of principal of Eurodollar Rate Loans, a
rate per annum that is equal to the sum of three percent (3%) per annum plus the
per annum rate in effect thereon until the end of the then current Interest
Period for such Loan and, thereafter, a rate per annum that is equal to the sum
of three percent (3%) per annum plus the Floating Rate, and (c) in respect of
other amounts payable by the Company hereunder (other than interest), a per
annum rate that is equal to the sum of three percent (3%) per annum plus the
Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean Liens permitted by Section 5.2(d) hereof.
"Person" or "person" shall include an individual, a corporation, an
association, a partnership, a trust or estate, a joint stock company, an
unincorporated organization, a joint venture, a trade or business (whether or
not incorporated), a government (foreign or domestic) and any agency or
political subdivision thereof, or any other entity.
"Plan" shall mean any pension plan (including a Multiemployer Plan)
subject to Title IV of ERISA or to the minimum funding standards of Section 412
of the Code which has been established or maintained by the Company, any
Guarantor or any ERISA Affiliate.
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced rate
may not necessarily be the lowest rate charged by the Agent to any of its
customers); which Prime Rate shall change simultaneously with any change in such
announced rate.
"Prohibited Transaction" shall mean any transaction involving any Plan
which is proscribed by Section 406 of ERISA or Section 4975 of the Code and to
which no statutory or administrative exemption applies.
"Reportable Event" shall mean a reportable event with respect to any
Plan as described in Section 4043(c) of ERISA, excluding those events as to
which the thirty (30) day notice period is waived under Part 2615 of the
regulations promulgated by the PBGC under ERISA.
"Rental Expense" shall mean, with respect to any Person, for any
period, the aggregate of all amounts paid or accrued in respect of Rental
Obligations for such period, as determined in accordance with GAAP.
"Rental Obligations" shall mean, with respect to any Person, for any
period, all rental obligations for which such Person is directly or indirectly
liable (as lessee or as guarantor or as other surety) under all leases in effect
or to be in effect at any time during such period, other than under any Capital
Lease, all as determined in accordance with GAAP.
"Required Lenders" shall mean Lenders holding not less than (i) 66% of
the aggregate principal amount of the Advances then outstanding or (ii) 66% of
the Commitments if no Advances are then outstanding.
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"Requirement of Law" shall mean as to any person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such person or any of its property to which such person or
any of its property is subject.
"Revolving Credit Loan" shall mean any borrowing under Section 2.1 (a)
evidenced by the Facility A Note and made pursuant to Section 2.1(a).
"Saturn Tooling Project" shall mean the approximately $31,800,000
tooling project undertaken by the Company in connection with Saturn's Innovate
line, which project is expected to conclude by July of 1999.
"Security Agreement" shall mean each security agreement entered into by
the Company or any Guarantor (other than MS and Holdings) for the benefit of the
Agent and the Lenders pursuant to this Agreement or the Existing Credit
Agreement in substantially the form of Exhibit C hereto, as amended or modified
from time to time.
"Security Documents" shall mean, collectively, the Security Agreements,
the Guaranties, the Letter of Credit Documents, any pledge agreement, any note
assignment agreement and all other related agreements and documents, including
financing statements and similar documents, delivered pursuant to this Agreement
or otherwise entered into by any person to secure the Advances.
"Senior Notes" shall mean the 11 7/8% Senior Notes due 2006 issued by
the Company in the original aggregate principal amount of $85,000,000 and issued
pursuant to the Senior Note Indenture.
"Senior Note Documents" shall mean the Senior Note Indenture, the
Senior Notes and all instruments, agreements and documents executed in
connection therewith at any time.
"Senior Note Debt" shall mean all present and future indebtedness,
obligations and liabilities outstanding pursuant to the Senior Note Documents
including, without limitation, any senior notes due 2006 issued by the Company
in an original principal amount of $85,000,000 for which the Senior Notes are
exchangeable pursuant to a registered exchange offer effectuated by the Company
pursuant to the Registration Rights Agreement (as defined in the Senior Note
Indenture) and the guaranties of the Senior Notes by each of MS, Holdings and
Export.
"Senior Note Indenture" shall mean the indenture dated as of August 1,
1996 by and among the Company, MS, Holdings, Export and Norwest Bank Minnesota,
N.A., as trustee, as the same may be amended from time.
"Senior Secured Funded Debt" of any person, as of any date, shall mean
all Funded Debt which is secured by Liens.
"Senior Secured Funded Debt Ratio" shall mean, as of any date, the
ratio of (a) Senior Secured Funded Debt as of such date to (b) EBITDA, as
calculated for the four consecutive fiscal quarters of the Company most recently
ended.
"SOFEDIT" shall mean Societe Financiere de Developpement Industrial et
Technologique, a French societe anonyme.
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"SOFEDIT Shareholders" shall mean the Persons set forth on Schedule
1.1(a) attached hereto and any Permitted Transferees under and as defined in
that certain Stockholders Agreement dated as of April 14, 1998 among MS and
certain of its stockholders.
"Solvent" when used with respect to any person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such person will, as of such date, exceed the amount of all
"liabilities of such person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such person will, as of such date, be greater
than the amount that will be required to pay the liability of such person on its
debts as such debts become absolute and matured, (c) such person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subordinated Debt" of any person shall mean, as of any date, that
Indebtedness of such person for borrowed money which is expressly subordinate
and junior in right and priority of payment to the Advances and other
Indebtedness of such person to the Lenders in manner and by written agreement
satisfactory in form and substance to the Required Lenders.
"Subordinated Debt Documents" shall mean each of the agreements,
instruments and documents described on Schedule 1.1(b).
"Subsidiary" of any person shall mean any other person (whether now
existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a
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majority of the securities or other ownership interests of each class having
ordinary voting power or analogous right (other than securities or other
ownership interests which have such power or right only by reason of the
happening of a contingency), at the time as of which any determination is being
made, are owned, beneficially and of record, by such person or by one or more of
the other Subsidiaries of such person or by any combination thereof. Unless
otherwise specified, reference to "Subsidiary" shall mean a Subsidiary of the
Company.
"Swingline Facility" shall have the meaning specified in Section 2.1
(d).
"Swingline Loan" shall mean any borrowing under Section 2.4 evidenced
by the Swingline Note and made pursuant to Section 2.1(d).
"Swingline Note" shall mean any promissory note of the Company
evidencing the Swingline Loans, in substantially the same form annexed hereto as
Exhibit B-3, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Termination Date A" shall mean the earlier to occur of (a) August 13,
2001 and (b) the date on which the Facility A Commitment shall be terminated
pursuant to Section 2.2 or 6.2.
"Termination Date B" shall mean the earlier to occur of (a) March 31,
1999 and (b) the date on which the Facility B Commitment shall be terminated
pursuant to Section 2.2 or 6.2.
"Termination Date C" shall mean the earlier to occur of (a) July 1,
1999 and (b) the date on which the Facility C Commitment shall be terminated
pursuant to Section 2.2 or 6.2.
"Total Commitments" shall mean the aggregate amount of Commitments of
all Lenders as set forth on the last signature page of this Agreement, as
reduced or modified from time to time pursuant to Section 2.3(a) or 8.6.
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Agent", "Lenders", "Company" and "this Agreement" shall have the respective
meanings ascribed thereto in the introductory paragraph of this Agreement, and
the term "Guaranteed Obligations" shall have the meaning ascribed thereto in
Section 8.1 of this Agreement. Such terms, together with the other terms defined
in Section 1.1, shall include both the singular and the plural forms thereof and
shall be construed accordingly. All computations required hereunder and all
financial terms used herein shall be made or construed in accordance with
Generally Accepted Accounting Principles unless such principles are inconsistent
with the express requirements of this Agreement; provided that, if the Company
notifies the Agent that the Company wishes to amend any covenant in Article V to
eliminate the effect of any change in Generally Accepted Accounting Principles
in the operation of such covenant (or if the Agent notifies the Company that the
Required Lenders wish to amend Article V for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of Generally
Accepted Accounting Principles in effect immediately before the relevant change
in Generally Accepted Accounting Principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Lenders. Use of the terms "herein", "hereof", and
"hereunder" shall be deemed references to this Agreement in its entirety and not
to the Section or clause in which such term
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appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
ARTICLE 2
THE COMMITMENTS, THE SWINGLINE FACILITY AND THE ADVANCES
2.1 Commitment of the Lenders and the Swingline Facility.
(a) Facility A Advances. Each Lender agrees, for itself only, subject
to the terms and conditions of this Agreement, to make Facility A Loans and to
participate in Letter of Credit Advances under Facility A pursuant to Section
2.4 and Section 3.3 from time to time to but excluding Termination Date A, not
to exceed in aggregate principal amount at any time outstanding the amount
determined pursuant to Section 2.1(e).
(b) Facility B Loans. Each Lender agrees, for itself only, subject to
the terms and conditions of this Agreement, to make Term Loans to the Company
pursuant to Section 2.4 and Section 3.3 from time to time to but excluding
Termination Date B, not to exceed in aggregate principal amount at any time
outstanding the amount determined pursuant to Section 2.1(e).
(c) Facility C Advances. Each Lender agrees, for itself only, subject
to the terms and conditions of this Agreement, to make Letter of Credit Advances
under Facility C to the Company pursuant to Section 2.4 from time to time to but
excluding Termination Date C, not to exceed in aggregate principal amount at any
time outstanding the amount determined pursuant to Section 2.1(e).
Notwithstanding anything herein to the contrary, any Facility C Letters of
Credit outstanding on Termination Date C shall automatically be deemed
outstanding under Facility A as of Termination Date C , subject to Section
2.1(e).
(d) Swingline Loans.
(i) The Company may request the Agent to make, and the Agent may,
in its sole discretion, make Swingline Loans to the Company from time to time on
any Business Day during the period from the date hereof until Termination Date A
in an aggregate principal amount not to exceed at any time the lesser of (A)
$5,000,000 and (B) the aggregate amount of Facility A Advances that could be but
is not borrowed as of such date under Facility A. Each Lender's Facility A
Commitment shall be deemed utilized by an amount equal to such Lender's pro rata
share (based on such Lender's Facility A Commitment) of each Swingline Loan for
purposes of determining the amount of Facility A Advances required to be made by
such Lenders, but no Lender's Facility A Commitment, including the Agent's,
shall be deemed utilized for purposes of determining commitment fees under
Section 2.3(a). Swingline Loans shall bear interest at the Floating Rate. Within
the limits of the Swingline Facility, so long as the Agent, in its sole
discretion, elects to make Swingline Loans, the Company may borrow and reborrow
under this Section 2.1(d)(i).
(ii) The Agent may at any time in its sole and absolute discretion
require that any Swingline Loan be refunded by a Floating Rate Borrowing from
the Lenders, and upon written notice thereof by the Agent to the Lenders and the
Company, the Company shall be deemed to have requested a Floating Rate Borrowing
under Facility A in an amount equal to the amount of such Swingline Loan, and
such Floating Rate Borrowing shall be made to refund such Swingline Loan. Each
Lender shall be absolutely and unconditionally obligated to fund its pro rata
share (based on such
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Lender's commitment) of such Floating Rate Borrowing or, if applicable, purchase
a participating interest in the Swingline Loans pursuant to Section 2.1(d)(iii)
and such obligation shall not be affected by any circumstance, including,
without limitation, (A) any set-off, counterclaim, recoupment, defense or other
right which such Lenders has or may have against the Agent or the Company or any
if its Subsidiaries or anyone else for any reason whatsoever; (B) the occurrence
or continuance of a Default or an Event of Default, subject to Section
2.1(d)(iii); (C) any adverse change in the condition (financial or otherwise) of
the Company or any of its Subsidiaries; (D) any breach of this Agreement or any
other agreement by any other Lender, the Company or any Guarantor; or (E) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing (including without limitation the Company's failure to satisfy
any conditions contained in Article II or any other provision of this
Agreement).
(iii) If, for any reason (including without limitation as a result
of the occurrence of an Event of Default with respect to the Company or any of
its Subsidiaries pursuant to Section 6.1(h) Floating Rate Loans may not be made
by the Lenders as described in Section 2.1(d)(ii), then (A) the Company agrees
that each Swingline Loan not paid pursuant to Section 2.1(d)(ii) shall bear
interest, payable on demand by the Agent, at the Overdue Rate, and (B) effective
on the date each such Floating Rate Loan would otherwise have been made, each
Lender severally agrees that it shall unconditionally and irrevocably, without
regard to the occurrence of any Default or Event of Default or any other
circumstances, in lieu of deemed disbursement of loans, to the extent of such
Lender's Facility A Commitment, purchase a participating interest in the
Swingline Loans by paying its participation percentage thereof. Each Lender will
immediately transfer to the Agent, in same day funds, the amount of its
participation. After such payment to the Agent, each Lender shall share on a pro
rata basis (calculated by reference to its Facility A Commitment) in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any Lender shall not have so made the amount of such participating
interest available to the Agent, such Lender and the Company severally agree to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Agent until the date such amount is
paid to the Agent, at (x) in the case of the Company, the interest rate
specified above and (y) in the case of such Lender, the Federal Funds Rate for
the first five days after the date of demand by the Agent and thereafter at the
interest rate specified above.
(e) Limitation on Amount of Advances. Notwithstanding anything in
this Agreement to the contrary, the aggregate principal amount of the Facility A
Advances at any time outstanding to the Company hereunder shall not exceed the
lesser of (i) the amount of the Borrowing Base at such time minus the aggregate
outstanding amount of Facility C Advances at such time and (ii) the aggregate
amount of the Facility A Commitments at such time, provided, however, that: (i)
the aggregate amount of Facility A Letter of Credit Advances shall not exceed
$3,000,000 at any time. Notwithstanding anything in this Agreement to the
contrary, the aggregate principal amount of the Facility B Loans at any time
outstanding to the Company shall not exceed the aggregate amount of the Facility
B Commitments at such time provided, that any Facility B Loan repaid may not
thereafter be reborrowed. Notwithstanding anything in this Agreement to the
contrary, the aggregate principal amount of the Facility C Advances at any time
outstanding to the Company hereunder shall not exceed the lesser of (i) the
amount of the Borrowing Base at such time minus the aggregate outstanding amount
of Facility A Advances at such time and (ii) the aggregate amount of the
Facility C Commitments at such time
2.2 Termination and Reduction of Commitments.
(a) The Company shall have the right to terminate or reduce the
Commitments at any time and from time to time at its option, provided that (i)
the Company shall give notice of such
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termination or reduction to the Agent (with sufficient executed copies for each
Lender) specifying the amount and effective date thereof, (ii) each partial
reduction of the Commitments shall be in a minimum amount of $1,000,000 and in
an integral multiple of $1,000,000 and shall reduce the Commitments of all of
the Lenders proportionately in accordance with the respective commitment amounts
for each such Lender set forth in the signature pages hereof next to name of
each such Lender, (iii) no such termination or reduction shall be permitted with
respect to any portion of the Commitments as to which a request for a Advance
pursuant to Section 2.4 is then pending and (iv) the Commitments may not be
terminated if any Advances are then outstanding and may not be reduced below the
principal amount of Advances then outstanding. The Commitments or any portion
thereof terminated or reduced pursuant to this Section 2.2, whether optional or
mandatory, may not be reinstated.
(b) For purposes of this Agreement, a Letter of Credit Advance (i)
shall be deemed outstanding in an amount equal to the sum of the maximum amount
available to be drawn under the related Letter of Credit on or after the date of
determination and on or before the stated expiry date thereof plus the amount of
any draws under such Letter of Credit that have not been reimbursed as provided
in Section 3.3 and (ii) shall be deemed outstanding at all times on and before
such stated expiry date or such earlier date on which all amounts available to
be drawn under such Letter of Credit have been fully drawn, and thereafter until
all related reimbursement obligations have been paid pursuant to Section 3.3. As
provided in Section 3.3, upon each payment made by the Agent in respect of any
draft or other demand for payment under any Letter of Credit, the amount of any
Letter of Credit Advance outstanding immediately prior to such payment shall be
automatically reduced by the amount of each Loan deemed advanced in respect of
the related reimbursement obligation of the Company.
2.3 Fees.
(a) (i) The Company agrees to pay to each Lender a commitment fee on
the daily average unused amount of its respective Facility A Commitment, for the
period from the Effective Date to but excluding Termination Date A, at a per
annum rate equal to the Applicable Margin. (ii) The Company agrees to pay to
each Lender a commitment fee on the daily average unused amount of its
respective Facility B Commitment, for the period from the Effective Date to but
excluding Termination Date B, at a rate equal to one-half of one percent (1/2 of
1%) per annum. (iii) The Company agrees to pay to each Lender a commitment fee
on the daily average unused amount of its respective Facility C Commitment, for
the period from the Effective Date to but excluding Termination Date C, at a per
annum rate equal to the Applicable Margin. Accrued commitment fees shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing on the first such Business Day occurring
after the Effective Date, and on the respective Termination Date.
(b) On or before the date of issuance of any Letter of Credit, the
Company agrees (i) to pay to the Lenders a fee computed at a rate equal to the
Applicable Margin of the maximum amount available to be drawn from time to time
under such Letter of Credit for the period from and including the date of
issuance of such Letter of Credit to and including the stated expiry date of
such Letter of Credit, and (ii) if there is more than one Lender party hereto,
to pay an additional fee to the Agent for its own account computed at the rate
of one-quarter of one percent (1/4 of 1%) per annum of such maximum amount for
such period. Such fees are nonrefundable and the Company shall not be entitled
to any rebate of any portion thereof if such Letter of Credit does not remain
outstanding through its stated expiry date or for any other reason. The Company
further agrees to pay to the Agent, on demand, such other reasonable and
customary administrative fees, charges and expenses of the Agent in respect of
the issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or
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other wise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.
(c) The Company agrees to pay to the Agent such reasonable fees in such
amounts as may from time to time be agreed upon by the Company and the Agent.
2.4 Disbursement of Advances.
(a) The Company shall give the Agent notice of its request for each
Advance (other than for a Swingline Loan) in substantially the form of Exhibit D
hereto not later than 10:00 a.m. Detroit time (i) four Eurodollar Business Days
prior to the date such Advance is requested to be made if such Advance is to be
made as a Eurodollar Rate Loan, (ii) five Business Days prior to the date any
Letter of Credit Advance is requested to be made, and (iii) one Business Day
prior to the date such Advance is requested to be made in all other cases, which
notice shall specify whether a Eurodollar Rate Loan, Floating Rate Loan or
Letter of Credit Advance is requested and, in the case of each requested
Eurodollar Rate Loan, the Interest Period to be initially applicable to such
Loan and, in the case of each Letter of Credit Advance, such information as may
be necessary for the issuance thereof by the Agent. The Agent, not later than
the Business Day next succeeding the day such notice is given, shall provide
notice of such requested Advance to each Lender. Subject to the terms and
conditions of this Agreement, the proceeds of each such requested Loan shall be
made available to the Company by depositing the proceeds thereof in immediately
available funds, in an account maintained and designated by the Company at the
principal office of the Agent. Subject to the terms and conditions of this
Agreement, the Agent shall, on the date any Letter of Credit Advance is
requested to be made, issue the related Letter of Credit on behalf of the
Lenders for the account of the Company. Notwithstanding anything herein to the
contrary, the Agent may decline to issue any requested Letter of Credit on the
basis that the beneficiary, the purpose of issuance or the terms or the
conditions of drawing are unacceptable to it in its reasonable discretion.
(b) Each Lender, on the date any Borrowing in the form of a Loan is
requested to be made, shall make its pro rata share of such Borrowing available
in immediately available, freely transferable, cleared funds for disbursement to
the Company pursuant to the terms and conditions of this Agreement at the
principal office of the Agent. Unless the Agent shall have received notice from
any Lender prior to the date such Borrowing is requested to be made under this
Section 2.4 that such Lender will not make available to the Agent such Lender's
pro rata portion of such Borrowing, the Agent may assume that such Lender has
made such portion available to the Agent on the date such Borrowing is requested
to be made in accordance with this Section 2.4. If and to the extent such Lender
shall not have so made such pro rata portion available to the Agent, the Agent
may (but shall not be obligated to) make such amount available to the Company,
and such Lender and the Company severally agree to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day from the date
such amount is made available to the Company by the Agent until the date such
amount is repaid to the Agent, at the Federal Funds Rate. If such Lender shall
pay such amount to the Agent together with interest, such amount so paid shall
constitute a Loan by such Lender as a part of such the related Borrowing for
purposes of this Agreement. The failure of any Lender to make its pro rata
portion of any such Borrowing available to the Agent shall not relieve any other
Lender of its obligations to make available its pro rata portion of such
Borrowing on the date such Borrowing is requested to be made, but no Lender
shall be responsible for failure of any other Lender to make such pro rata
portion available to the Agent on the date of any such Borrowing.
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(c) The Facility A Loans shall be evidenced by the Facility A Note, the
Facility B Loans shall be evidenced by the Facility B Notes, the Swingline Loans
shall be evidenced by the Swingline Note and all such Loans shall be due and
payable and bear interest as provided in Article III. Each Lender is hereby
authorized by the Company to record on the schedule attached to the Notes, or in
its books and records, the date, amount and type of each Loan and the duration
of the related Eurodollar Interest Period (if applicable), the amount of each
payment or prepayment of principal thereon, and the other information provided
for on such schedule, which schedule or books and records, as the case may be,
shall constitute prima facie evidence of the information so recorded, provided,
however, that failure of any Lender to record, or any error in recording, any
such information shall not relieve the Company of its obligation to repay the
outstanding principal amount of the Loans, all accrued interest thereon and
other amounts payable with respect thereto in accordance with the terms of the
Notes and this Agreement. Subject to the terms and conditions of this Agreement,
the Company may borrow Loans under this Section 2.4 and under Section 3.3,
prepay Loans pursuant to Section 3.1 and reborrow Facility A Loans (but not
Facility B Loans) under this Section 2.4 and under Section 3.3.
(d) Nothing in this Agreement shall be construed to require or
authorize any Lender to issue any Letter of Credit, it being recognized that the
Agent has the sole obligation under this Agreement to issue Letters of Credit on
behalf of the Lenders, and the Commitment of each Lender with respect to Letter
of Credit Advances is expressly conditioned upon the Agent's performance of such
obligations. Upon such issuance by the Agent, each Lender shall automatically
acquire a pro rata risk participation interest in such Letter of Credit Advance
based on the amount of its respective Commitment. If the Agent shall honor a
draft or other demand for payment presented or made under any Letter of Credit,
the Agent shall provide notice thereof to each Lender on the date such draft or
demand is honored unless the Company shall have satisfied its reimbursement
obligation under Section 3.3 by payment to the Agent on such date. Each Lender,
on such date, shall make its pro rata share of the amount paid by the Agent
available in immediately available funds at the principal office of the Agent
for the account of the Agent. If and to the extent such Lender shall not have
made such pro rata portion available to the Agent, such Lender and the Company
severally agree to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date such amount was paid by the
Agent until such amount is so made available to the Agent at a per annum rate
equal to the Federal Funds Rate. If such Lender shall pay such amount to the
Agent together with such interest, such amount so paid shall constitute a Loan
by such Lender as part of the Borrowing disbursed in respect of the
reimbursement obligation of the Company under Section 3.3 for purposes of this
Agreement. The failure of any Lender to make its pro rata portion of any such
amount paid by the Agent available to the Agent shall not relieve any other
Lender of its obligation to make available its pro rata portion of such amount,
but no Lender shall be responsible for failure of any other Lender to make such
pro rata portion available to the Agent.
2.5 Conditions for First Disbursement. The obligation of the Lenders to
make the first Advance hereunder is subject to receipt by each Lender and the
Agent of the following documents and completion of the following matters, in
form and substance satisfactory to each Lender and the Agent:
(a) Corporate Documents. Certified copies of such corporate documents,
resolutions and incumbency certificates as requested by the Agent;
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(b) Notes. The Notes duly executed on behalf of the Company for each
Lender;
(c) Security Documents. The Security Documents duly executed on behalf
of the Company and each Guarantor (other than MS and Holdings), as the case may
be, granting to the Lenders and the Agent the collateral and security intended
to be provided pursuant to Section 2.11, together with such financing
statements, UCC searches, pledge agreement, instruments, stock certificates and
other documents in connection therewith requested by the Agent;
(d) Casualty and Other Insurance. Evidence that the casualty and other
insurance required pursuant to Section 5.1(c) and each Security Agreement is in
full force and effect;
(e) Legal Opinions. The favorable written opinion of counsel for the
Company and each Guarantor in form and substance satisfactory to the Agent;
(f) Fees. Payment of any fees due as of the Effective Date;
(g) Subordinated Debt Documents. Copies of all agreements and documents
relating to any Subordinated Debt, all of which are described on Schedule 1.1(b)
hereto, and amendments to all such Subordinated Debt Documents in form or
substance satisfactory to the Agent;
(h) Saturn Tooling Project. A certificate relating to the Saturn
Tooling Project executed by the Company with respect to all matters referred to
in Section 5.1(d)(ix) and a report as to the achievement of milestones under the
Saturn Tooling Project; and
(i) Miscellaneous. Such other documents, and completion of such other
matters, as the Agent may reasonably request.
2.6 Further Conditions for Disbursement. The obligation of the Lenders
to make any Advance (including the first Advance), or any continuation
or conversion under Section 2.7 is further subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties contained in Article IV hereof
and in the Security Documents shall be true and correct on and as of the date
such Advance is made (both before and after such Advance is made) as if such
representations and warranties were made on and as of such date;
(b) No Default or Event of Default shall exist or shall have occurred
and be continuing on the date such Advance is made (whether before or after such
Advance is made);
(c) The Agent shall have received the most recent Borrowing Base
Certificate required hereunder;
(d) In the case of any Letter of Credit Advance, the Company shall have
delivered to the Agent an application for the related Letter of Credit and other
related documentation requested by and acceptable to the Agent appropriately
completed and duly executed on behalf of the Company; and
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(e) In the case of any Facility B Loan, the Company shall have
delivered to the Agent evidence satisfactory to the Agent that (i) the Company
is purchasing Eligible Fixed Assets with such Facility B Loan, (ii) such
Facility B Loan does not exceed 50% of the hard cost of any new Eligible Fixed
Asset being purchased therewith; (iii) simultaneously with making such Facility
B Loan the Company will own such Eligible Fixed Asset and the Agent, for the
benefit of itself and the Lenders, shall have a first priority security interest
in such Eligible Fixed Asset pursuant to the Security Agreement.
The Company shall be deemed to have made a representation and warranty to the
Lenders at the time of the making of, and the continuation or conversion of,
each Advance to the effects set forth in clauses (a) and (b) of this Section
2.6. For purposes of this Section 2.6 the representations and warranties
contained in Section 4.6 hereof shall be deemed made with respect to both the
financial statements referred to therein and the most recent financial
statements delivered pursuant to Section 5.1(d)(ii) and (iii). The schedules
referenced in the representations and warranties in this Agreement may be
amended from time to time by the Company provided that such amendments reflect
transactions permitted by the Agreement or are immaterial, and shall be
effective when consented to by the Agent.
2.7 Subsequent Elections as to Loans. The Company may elect (a) to
continue a Eurodollar Rate Loan of one type, or a portion thereof, as a
Eurodollar Rate Loan of the then existing type or (b) may elect to convert a
Eurodollar Rate Loan of one type, or a portion thereof, to a Loan of another
type or (c) elect to convert a Floating Rate Loan, or a portion thereof, to a
Eurodollar Rate Loan, in each case by giving notice thereof to the Agent in
substantially the form of Exhibit E hereto not later than 10:00 a.m. Detroit
time four Eurodollar Business Days prior to the date any such continuation of or
conversion to a Eurodollar Rate Loan is to be effective and not later than 10:00
a.m. Detroit time one Business Day prior to the date such continuation or
conversion is to be effective in all other cases, provided that an outstanding
Eurodollar Rate Loan may only be converted on the last day of the then current
Interest Period with respect to such Loan, and provided, further, if a
continuation of a Loan as, or a conversion of a Loan to, a Eurodollar Rate Loan
is requested, such notice shall also specify the Interest Period to be
applicable thereto upon such continuation or conversion. The Agent, not later
than the Business Day next succeeding the day such notice is given, shall
provide notice of such election to the Lenders. If the Company shall not timely
deliver such a notice with respect to any outstanding Eurodollar Rate Loan, the
Company shall be deemed to have elected to convert such Eurodollar Rate Loan to
a Floating Rate Loan on the last day of the then current Interest Period with
respect to such Loan.
2.8 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, (a) the Company may not
elect any Eurodollar Rate Loan, including any conversion to a Eurodollar Rate
Loan, and shall not be entitled to request any Eurodollar Rate Loan or any
conversion to a Eurodollar Rate Loan if, upon receiving a request for a
Eurodollar Rate Loan pursuant to Section 2.4, or a request for a continuation
of a Eurodollar Rate Loan as a Eurodollar Rate Loan of the then existing type,
or a request for a conversion of a Floating Rate Loan to a Eurodollar Rate Loan
pursuant to Section 2.7, (i) in the case of any Eurodollar Rate Loan, deposits
in Dollars for periods comparable to the Eurodollar Interest Period elected by
the Company are not available to any Lender in the London interbank market,
(ii) the Eurodollar Rate will not adequately and fairly reflect the cost to any
Lender of making, funding or maintaining the related Eurodollar Rate Loan, or
(iii) by reason of national or international financial, political or economic
conditions or by reason of any applicable law, treaty or other international
agreement, rule or regulation (whether domestic or foreign) now or hereafter in
effect, or the interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Lender with any guideline, request or directive of such
authority (whether or not having the force of law), including without
limitation
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exchange controls, it is impracticable, unlawful or impossible for, or shall
limit or impair the ability of, (i) any Lender to make or fund the relevant Loan
or to continue such Loan as a Loan of the then existing type or to convert a
Loan to such a Loan or (ii) the Company to make or any Lender to receive any
payment under this Agreement at the place specified for payment hereunder or to
freely convert any amount paid into Dollars at market rates of exchange or to
transfer any amount paid or so converted to the address of its principal office
specified in Section 9.2, then the Company shall not be entitled, so long as
such circumstances continue, to request a Loan of the affected type pursuant to
Section 2.4 or a continuation of or conversion to a Loan of the affected type
pursuant to Section 2.7. In the event that such circumstances no longer exist,
the Company shall be entitled to request Loans of the affected type pursuant to
Section 2.4, and continuations of and conversions to Loans of the affected type
pursuant to Section 2.7.
2.9 Minimum Amount; Limitation on Number of Loans; Etc. Except for (a)
Advances which exhaust the entire remaining amount of the Commitments and (b)
payments required pursuant to Section 3.1 or Section 3.8:
(i) With respect to Facility A Advances and Facility C Advances:
(A) each such Floating Rate Advance and each prepayment thereof shall be in a
minimum amount of $500,000 and in integral multiples of $10,000; and (B) each
such Eurodollar Rate Advance and each prepayment thereof shall be in a minimum
amount of $1,000,000 and in integral multiples of $100,000.
(ii) With respect to Facility B Loans: (A) each such Floating Rate
Loan and each prepayment thereof shall be in a minimum amount of $250,000; and
(B) each such Eurodollar Rate Loan and each prepayment, continuation or
conversion thereof shall be in a minimum amount of $1,000,000 and in integral
multiples of $100,000; provided, however, that any amounts repaid or prepaid
shall not be available to be reborrowed.
2.10 Borrowing Base Adjustments. The Company agrees that if at any time
any trade account receivable, any inventory, any fixed asset or any other asset
of the Company fails to constitute Eligible Account Receivable, Eligible
Inventory, Eligible Tooling Inventory or Eligible Fixed Assets, as the case may
be, for any reasonable reason, the Agent may, at any time and notwithstanding
any prior classification of eligibility, classify such asset or property as
ineligible and exclude the same from the computation of the Borrowing Base
without in any way impairing the rights of the Lenders and the Agent in and to
the same under the Security Agreements.
2.11 Security and Collateral. To secure the payment when due of the
Notes and all other obligations of the Company under the Loan Documents and
under any Hedging Contract to the Lenders and the Agent, the Company shall
execute and deliver, or cause to be executed and delivered, to the Lenders and
the Agent Security Documents granting the following:
(a) Security interests in all present and future accounts,
inventory, general intangibles, chattel paper, instruments, equipment, fixtures,
and all other personal property of the Company.
(b) Security interests in all present and future accounts,
inventory, general tangibles, chattel paper, instruments, equipment, fixtures
and all other personal property of the Guarantors other than MS and Holdings.
(c) Guarantees of each Guarantor.
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(d) All other security and collateral described in the Security
Documents (other than real property).
ARTICLE 3
PAYMENTS AND PREPAYMENTS OF ADVANCES
3.1 Principal Payments and Prepayments.
(a) Unless earlier payment is required under this Agreement, the
Company shall pay to the Lenders on Termination Date A the entire outstanding
principal amount of the Facility A Loans.
(b) Unless earlier payment is required under this Agreement, the
Company shall pay to the Lenders the outstanding principal amount of the
Facility B Loan in ten equal consecutive quarterly installments with each
payment equal to one-tenth of the outstanding balance of the Facility B Loans on
June 30, 1999, commencing on June 30, 1999, payable on the last Business Day of
each March, June, September and December and on the Maturity Date of the
remaining balance of the Facility B Loans shall be paid in full.
(c) The Company may at any time and from time to time prepay all
or a portion of the Loans, without premium or penalty, provided that (i) the
Company may not prepay any portion of any Loan as to which an election for a
continuation of or a conversion to a Eurodollar Rate Loan is pending pursuant to
Section 2.4, and (ii) unless earlier payment is required under this Agreement,
any Eurodollar Rate Loan may only be prepaid on the last day of the then current
Interest Period with respect to such Loan. Upon the giving of such notice, the
aggregate principal amount of such Loan or portion thereof so specified in such
notice, together with such accrued interest and other amounts, shall become due
and payable on the specified prepayment date.
(d) If at any time the aggregate outstanding principal amount of
the Facility A Advances and Facility C Advances (including Letters of Credit)
shall exceed the amount allowed pursuant to Section 2.1(e), the Company shall
forthwith pay to the Lenders, without demand, an amount not less than the amount
of such excess for application to the outstanding principal amount of the
Facility A Loans, provided that if any such prepayment would be in excess of the
outstanding amount of the Loans, the Company shall deliver cash collateral to
the Agent to secure the outstanding Letters of Credit in the amount of such
excess which is greater than the outstanding Facility A Loans and the Company
hereby grants to the Agent, for the benefit of the Lenders, a first priority
lien and security interest in such collateral, and all such cash collateral
shall be under the sole and exclusive control of the Agent.
(e) If any Borrowing Base Certificate delivered after June 30,
1999 and calculated as of the last day of any month indicates an excess of the
Borrowing Base in excess of $15,000,000, the Company shall make a mandatory
prepayment on the Facility B Loans in an aggregate amount equal to such excess
amount over $15,000,000. To the extent that, on the date any mandatory reduction
of outstanding Advances under this Section 3.1 is due, the outstanding Facility
B Advances are being carried, in whole or in part, at the Eurodollar Rate and no
Default or Event of Default has occurred and is continuing, the Company shall
first repay Facility B Advances being carried at the Floating Rate, and then the
Company may deposit the remaining amount of such mandatory repayment in a cash
collateral account to be held by the Agent, for and on behalf of the Lenders
(which shall be an interest-bearing account), on such terms and conditions as
are reasonably acceptable to Agent and the Required Lenders.
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Subject to the terms and conditions of said cash collateral account, sums on
deposit in said cash collateral account shall be applied (until exhausted) to
reduce the principal balance of the Eurodollar Rate Loans on the last day of
each Interest Period attributable to such Eurodollar Rate Loan.
(f) All payments of the Facility B Loans, in each case whether optional
or mandatory, shall be applied to installments of principal of the Facility B
Loans in the inverse order of their maturities and no partial prepayment of the
Facility B Loans shall reduce the amount or defer the scheduled installments of
principal required to be paid thereon.
3.2 Interest Payments. The Company shall pay interest to the Lenders on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such Loan is paid in full, on each Interest Payment Date
and at maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, at the following rates per annum:
(a) During such periods that such Loan is a Floating Rate Loan,
the Floating Rate.
(b) During such periods that such Loan is a Eurodollar Rate Loan,
the Eurodollar Rate applicable to such Loan for each related Eurodollar Interest
Period.
Notwithstanding the foregoing paragraphs (a) and (b), the Company shall pay
interest on demand by the Agent at the Overdue Rate on the outstanding principal
amount of any Loan and any other amount payable by the Company hereunder (other
than interest) at any time on or after an Event of Default if required in
writing by the Required Lenders.
3.3 Letter of Credit Reimbursement Payments.
(a) (i) The Company agrees to pay to the Lenders, on the day on
which the Agent shall honor a draft or other demand for payment presented or
made under any Letter of Credit, an amount equal to the amount paid by the Agent
in respect of such draft or other demand under such Letter of Credit and all
expenses paid or incurred by the Agent relative thereto. Unless the Company
shall have made such payment to the Lenders on such day, upon each such payment
by the Agent, the Agent shall be deemed to have disbursed to the Company, and
the Company shall be deemed to have elected to satisfy its reimbursement
obligation by, a Loan bearing interest at the Floating Rate for the account of
the Lenders in an amount equal to the amount so paid by the Agent in respect of
such draft or other demand under such Letter of Credit. Such Loan shall be
disbursed notwithstanding any failure to satisfy any conditions for disbursement
of any Loan set forth in Article II hereof and, to the extent of the Loan so
disbursed, the reimbursement obligation of the Company under this Section 3.3
shall be deemed satisfied; provided, however, that nothing in this Section 3.3
shall be deemed to constitute a waiver of any Default or Event of Default caused
by the failure to the conditions for disbursement or otherwise.
(ii) If, for any reason (including without limitation as a result
of the occurrence of an Event of Default with respect to the Company pursuant to
Section 6.1(h)), Floating Rate Loans may not be made by the Lenders as described
in Section 3.3(a)(i), then (A) the Company agrees that each reimbursement amount
not paid pursuant to the first sentence of Section 3.3(a)(i) shall bear
interest, payable on demand by the Agent, at the interest rate then applicable
to Floating Rate Loans, and (B) effective on the date each such Floating Rate
Loan would otherwise have been made, each Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any Default
or Event of Default, in lieu of deemed disbursement of loans, to the extent of
such Lender's Commitment, purchase a participating interest in each
reimbursement amount. Each Lender will
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immediately transfer to the Agent, in same day funds, the amount of its
participation. Each Lender shall share on a pro rata basis (calculated by
reference to its Commitment) in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Lender shall not have so made
the amount of such participating interest available to the Agent, such Lender
and the Company severally agree to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Agent until the date such amount is paid to the Agent, at (x) in the case of
the Company, the interest rate then applicable to Floating Rate Loans and (y) in
the case of such Lender, the Federal Funds Rate.
(b) The reimbursement obligation of the Company under this Section 3.3
shall be absolute, unconditional and irrevocable and shall remain in full force
and effect until all obligations of the Company to the Lenders hereunder shall
have been satisfied, and such obligations of the Company shall not be affected,
modified or impaired upon the happening of any event, including without
limitation, any of the following, whether or not with notice to, or the consent
of, the Company:
(i) Any lack of validity or enforceability of any Letter of Credit or
any documentation relating to any Letter of Credit or to any transaction related
in any way to such Letter of Credit (the "Letter of Credit Documents");
(ii) Any amendment, modification, waiver, consent, or any substitution,
exchange or release of or failure to perfect any interest in collateral or
security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other right which
the Company may have at any time against any beneficiary or any transferee of
any Letter of Credit (or any persons or entities for whom any such beneficiary
or any such transferee may be acting), the Agent or any Lender or any other
person or entity, whether in connection with any of the Letter of Credit
Documents, the transactions contemplated herein or therein or any unrelated
transactions;
(iv) Any draft or other statement or document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(v) Payment by the Agent to the beneficiary under any Letter of Credit
against presentation of a documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the Agent or
any Lender or any party to any of the Letter of Credit Documents to enforce,
assert or exercise any right, power or remedy conferred upon the Agent, any
Lender or any such party under this Agreement or any of the Letter of Credit
Documents, or any other acts or omissions on the part of the Agent, any Lender
or any such party;
(vii) Any other event or circumstance that would, in the absence of
this clause, result in the release or discharge by operation of law or otherwise
of the Company from the performance or observance of any obligation, covenant or
agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Company has or may have against the
beneficiary of any Letter of Credit shall be available
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hereunder to the Company against the Agent or any Lender. Nothing in this
Section 3.3 shall limit the liability, if any, of the Lenders to the Company
pursuant to Section 9.5.
3.4 Payment Method.
(a) All payments to be made by the Company hereunder will be made to
the Agent for the account of the Lenders in Dollars and in immediately
available, freely transferable, cleared funds not later than 1:00 p.m. at the
principal office of the Agent specified in Section 9.2. Payments received after
1:00 p.m. at the place for payment shall be deemed to be payments made prior to
1:00 p.m. at the place for payment on the next succeeding Business Day. The
Company hereby authorizes the Agent to charge its account with the Agent in
order to cause timely payment of amounts due hereunder to be made (subject to
sufficient funds being available in such account for that purpose).
(b) At the time of making each such payment, the Company shall, subject
to the other terms and conditions of this Agreement, specify to the Agent that
Loan or other obligation of the Company hereunder to which such payment is to be
applied. In the event that the Company fails to so specify the relevant
obligation or if an Event of Default shall have occurred and be continuing, the
Agent may apply such payments as it may determine in its sole discretion.
(c) On the day such payments are deemed received, the Agent shall remit
to the Lenders their pro rata shares of such payments in immediately available
funds to the Lenders at their respective address in the United States specified
for notices pursuant to Section 9.2. In the case of payments of principal and
interest on any Borrowing, such pro rata shares shall be determined with respect
to each such Lender by the ratio which the outstanding principal balance of its
Loan included in such Borrowing bears to the outstanding principal balance of
the Loans of all of the Lenders included in such Borrowing, and in the case of
fees paid pursuant to Section 2.3 and other amounts payable hereunder (other
than the Agent's fees payable pursuant to Section 2.3(c) and amounts payable to
any Lender under Section 3.7), such pro rata shares shall be determined with
respect to each such Lender by the ratio which the Commitment of such Lender
bears to the Commitments of all the Lenders.
3.5 No Setoff or Deduction. All payments of principal of and interest
on the Loans and other amounts payable by the Company hereunder shall be made by
the Company without setoff or counterclaim, and, subject to the next succeeding
sentence, free and clear of, and without deduction or withholding for, or on
account of, any present or future taxes, levies, imposts, duties, fees,
assessments, or other charges of whatever nature, imposed by any governmental
authority, or by any department, agency or other political subdivision or taxing
authority. If any such taxes, levies, imposts, duties, fees, assessments or
other charges are imposed, the Company will pay such additional amounts as may
be necessary so that payment of principal of and interest on the Loans and other
amounts payable hereunder, after withholding or deduction for or on account
thereof, will not be less than any amount provided to be paid hereunder and, in
any such case, the Company will furnish to the Lenders certified copies of all
tax receipts evidencing the payment of such amounts within 45 days after the
date any such payment is due pursuant to applicable law.
3.6 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this
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Agreement shall be made on the basis of a year of 360 days for the actual number
of days elapsed, including the first day but excluding the last day of the
relevant period.
3.7 Additional Costs.
(a) In the event that any applicable law, treaty or other international
agreement, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Lender or the Agent, or
any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Lender or the Agent with any guideline, request or directive of any such
authority (whether or not having the force of law), shall (a) affect the basis
of taxation of payments to any Lender or the Agent of any amounts payable by the
Company under this Agreement (other than taxes imposed on the overall net income
of any Lender or the Agent, by the jurisdiction, or by any political subdivision
or taxing authority of any such jurisdiction, in which any Lender or the Agent,
as the case may be, has its principal office), or (b) shall impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by any Lender
or the Agent, or (c) shall impose any other condition with respect to this
Agreement, or any of the Commitments, the Notes or the Loans or any Letter of
Credit, and the result of any of the foregoing is to increase the cost to any
Lender or the Agent, as the case may be, of making, funding or maintaining any
Eurodollar Rate Loan or any Letter of Credit or to reduce the amount of any sum
receivable by any Lender or the Agent, as the case may be, thereon, then the
Company shall pay to such Lender or the Agent, as the case may be, from time to
time, upon request by such Lender (with a copy of such request to be provided to
the Agent) or the Agent, additional amounts sufficient to compensate such Lender
or the Agent, as the case may be, for such increased cost or reduced sum
receivable to the extent, in the case of any Eurodollar Rate Loan, such Lender
or the Agent is not compensated therefor in the computation of the interest rate
applicable to such Eurodollar Rate Loan. A statement as to the amount of such
increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent, as the case may be, to the Company, shall be
conclusive and binding for all purposes absent manifest error in computation. No
Lender shall charge any amount under this Section 3.7(a) unless it is charging
other borrowers similar to the Company, as reasonably determined by such Lender,
such similar amounts if allowed.
(b) In the event that any applicable law, treaty or other international
agreement, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Lender or the Agent, or
any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Lender or the Agent with any guideline, request or directive of any such
authority (whether or not having the force of law), including any risk-based
capital guidelines, affects or would affect the amount of capital required or
expected to be maintained by such Lender or the Agent (or any corporation
controlling such Lender or the Agent) and such Lender or the Agent, as the case
may be, determines that the amount of such capital is increased by or based upon
the existence of such Lender's or the Agent's obligations hereunder and such
increase has the effect of reducing the rate of return on such Lender's or the
Agent's (or such controlling corporation's) capital as a consequence of such
obligations hereunder to a level below that which such Lender or the Agent (or
such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy), then
the Company shall pay to such Lender or the Agent, as the case may be, from time
to time, upon request by such Lender (with a copy of such request to be provided
to the Agent) or the Agent, additional amounts sufficient to compensate such
Lender or the Agent (or such controlling corporation) for any increase in the
amount of capital and reduced rate of return which such Lender or the Agent
reasonably
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determines to be allocable to the existence of such Lender's or the Agent's
obligations hereunder. A statement as to the amount of such compensation,
prepared in good faith and in reasonable detail by such Lender or the Agent, as
the case may be, and submitted by such Lender or the Agent to the Company, shall
be conclusive and binding for all purposes absent manifest error in computation.
Such Lender or the Agent may, at its option, specify that such amounts be paid
by way of an increase in the commitment fees payable by the Company pursuant to
Section 2.3(a). No Lender shall charge any amount under this Section 3.7(b)
unless it is charging other borrowers similar to the Company, as reasonably
determined by such Lender, such similar amounts if allowed.
3.8 Illegality and Impossibility. In the event that any applicable law,
treaty or other international agreement, rule or regulation (whether domestic or
foreign) now or hereafter in effect and whether or not presently applicable to
any Lender, or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Lender with any guideline, request or directive of such
authority (whether or not having the force of law), including without limitation
exchange controls, shall make it unlawful or impossible for any Lender to
maintain any Loan under this Agreement, shall make it impracticable, unlawful or
impossible for, or shall in any way limit or impair ability of, the Company to
make or any Lender to receive any payment under this Agreement at the place
specified for payment hereunder, the Company shall upon receipt of notice
thereof from such Lender, repay in full the then outstanding principal amount of
each Loan so affected, together with all accrued interest thereon to the date of
payment and all amounts owing to such Lender under Section 3.8, (a) on the last
day of the then current Eurodollar Interest Period applicable to such Loan if
such Lender may lawfully continue to maintain such Loan to such day, or (b)
immediately if such Lender may not continue to maintain such Loan to such day.
3.9 Indemnification. If the Company makes any payment of principal with
respect to any Eurodollar Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.1, Section
3.7, Section 6.2 or otherwise), or if the Company fails to borrow any Eurodollar
Rate Loan after notice has been given to the Lenders in accordance with Section
2.4, or if the Company fails to make any payment of principal or interest in
respect of a Eurodollar Rate Loan when due, the Company shall reimburse each
Lender on demand for any resulting loss or expense incurred by each such Lender,
including without limitation any loss incurred in obtaining, liquidating or
employing deposits from third parties, whether or not such Lender shall have
funded or committed to fund such Loan. A statement as to the amount of such loss
or expense, prepared in good faith and in reasonable detail by such Lender and
submitted by such Lender to the Company, shall be conclusive and binding for all
purposes absent manifest error in computation. Calculation of all amounts
payable to such Lender under this Section 3.9 shall be made as though such
Lender shall have actually funded or committed to fund the relevant Eurodollar
Rate Loan through the purchase of an underlying deposit in an amount equal to
the amount of such Loan in the relevant market and having a maturity comparable
to the related Interest Period and, through the transfer of such deposit to a
domestic office of such Lender in the United States; provided, however, that
such Lender may fund any Eurodollar Rate Loan in any manner it sees fit and the
foregoing assumption shall be utilized only for the purpose of calculation of
amounts payable under this Section 3.9.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders and the Agent that:
4.1 Corporate Existence and Power. Each of the Company and each
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of the state or territory of its jurisdiction of incorporation or
organization, as the case may be, and is duly qualified to do business, and is
in good standing, in all additional jurisdictions where such qualification is
necessary under applicable law, except where failure to so qualify would not
have a Material Adverse Effect. Each of the Company and each Guarantor has all
requisite corporate power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted, and to execute and deliver the Loan Documents to which it is a party
and to engage in the transactions contemplated by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance by the
Company and each Guarantor of the Loan Documents to which it is a party have
been duly authorized by all necessary corporate action and are not in
contravention of any law, rule or regulation, or any judgment, decree, writ,
injunction, order or award of any arbitrator, court or governmental authority,
or of the terms of the Company's or the Guarantor's charter or by-laws, or of
any contract or undertaking to which the Company or any Guarantor is a party or
by which the Company or any Guarantor or any of their respective property may be
bound or affected and will not result in the imposition of any Lien on any of
their property or of any of their Subsidiaries except for Permitted Liens.
4.3 Binding Effect. The Loan Documents to which the Company or any
Guarantor is a party are the legal, valid and binding obligations of the Company
and each Guarantor, respectively, enforceable against the Company and each
Guarantor in accordance with their respective terms.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of incorporation and ownership of each Subsidiary
of the Company and each Guarantor. Each such Subsidiary and each corporation
becoming a Subsidiary of the Company or any Guarantor after the date hereof is
and will be a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and is and will be duly
qualified to do business in each additional jurisdiction where such
qualification is or may be necessary under applicable law, except where the
failure to so qualify would not have a Material Adverse Effect. Each Subsidiary
of the Company and each Guarantor has and will have all requisite corporate
power to own or lease the properties used in its business and to carry on its
business as now being conducted and as proposed to be conducted. All outstanding
shares of capital stock of each class of each Subsidiary of the Company and each
Guarantor have been and will be validly issued and are and will be fully paid
and nonassessable and, except as otherwise indicated in Schedule 4.4 hereto or
disclosed in writing to the Agent and the Lenders from time to time, are and
will be owned, beneficially and of record, by the Company or another Subsidiary
of the Company free and clear of any Liens.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of the Company's and the
Guarantors' knowledge, threatened against or affecting the Company, any
Guarantor or any of their respective Subsidiaries before or by any court,
governmental authority or arbitrator, which if adversely decided might have a
Material Adverse Effect
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and, to the best of the Company's and the Guarantor's knowledge, there is no
basis for any such action, suit or proceeding.
4.6 Financial Condition. The consolidated and consolidating balance
sheet of the Company and its Subsidiaries and the consolidated and consolidating
statements of income, retained earnings and cash flows of the Company and its
Subsidiaries for the fiscal year ended December 31, 1997 and audited by Price
Waterhouse, independent certified public accountants, copies of which have been
furnished to the Lenders, fairly present, and the financial statements of the
Company and its Subsidiaries delivered pursuant to Section 5.1(d) will fairly
present, the consolidated financial position of the Company and its Subsidiaries
as at the respective dates thereof, and the consolidated results of operations
of the Company and its Subsidiaries for the respective periods indicated, all in
accordance with Generally Accepted Accounting Principles consistently applied
(subject, in the case of said interim statements, to year-end audit
adjustments). There has been no event or development which has had or could
reasonably be expected to have a Material Adverse Effect since December 31,
1997. There is no material Contingent Liability of the Company or any of its
Subsidiaries that is not reflected in such financial statements or in the notes
thereto.
4.7 Use of Advances. The Company will use the proceeds of the Advances
for its general corporate purposes, including working capital and the financing
of capital expenditures. Neither the Company nor any Guarantor nor any of their
respective Subsidiaries extends or maintains, in the ordinary course of
business, credit for the purpose, whether immediate, incidental, or ultimate, of
buying or carrying margin stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System), and no part of the proceeds of any
Advance will be used for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying any such margin stock or maintaining or
extending credit to others for such purpose. After applying the proceeds of each
Advance, such margin stock will not constitute more than 25% of the value of the
assets (either of the Company or any Guarantor alone or of the Company and the
Guarantors and their respective Subsidiaries on a consolidated basis) that are
subject to any provisions of this Agreement or any Security Document that may
cause the Advances to be deemed secured, directly or indirectly, by margin
stock.
4.8 Consents, Etc. No consent, approval or authorization of or
declaration, registration or filing (other than financing statements which have
been executed) with any governmental authority or any nongovernmental person or
entity, including without limitation any creditor, lessor or stockholder of the
Company or any Guarantor or any of their respective Subsidiaries, is required on
the part of the Company or any Guarantor in connection with the execution,
delivery and performance of the Loan Documents or the transactions contemplated
hereby or as a condition to the legality, validity or enforceability of any of
the Loan Documents.
4.9 Taxes. The Company and the Guarantors and their respective
Subsidiaries have filed all tax returns (federal, state and local) required to
be filed and have paid all taxes shown thereon to be due, including interest and
penalties, or have established adequate financial reserves on their respective
books and records for payment thereof in accordance with Generally Accepted
Accounting Principles. Neither the Company nor any Guarantor nor any of their
respective Subsidiaries knows of any actual or proposed tax assessment or any
basis therefor, and no extension of time for the assessment of deficiencies in
any federal or state tax has been granted by the Company, any Guarantor or any
such Subsidiary.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement, the
Company, the Guarantors or one or more of their respective Subsidiaries have
good and marketable fee simple title to all of the real property owned by
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them, and a valid and indefeasible ownership interest in all of the other
properties and assets (including, without limitation, the collateral subject to
the Security Documents to which any of them is a party) reflected in said
balance sheet or subsequently acquired by the Company, any Guarantor or any such
Subsidiary. All of such properties and assets are free and clear of any Lien,
except for Permitted Liens. Subject to the Permitted Liens, the Security
Documents grant a first priority, perfected and enforceable lien and security
interest which is not void or voidable in all collateral described therein,
securing all Indebtedness described therein.
4.11 Borrowing Base. All trade accounts receivable and inventory and
fixed assets of the Company and Manufacturing represented or reported by the
Company and Manufacturing to be, or otherwise included in, Eligible Accounts
Receivable, Eligible Inventory, Eligible Tooling Inventory and Eligible Fixed
Assets comply in all respects with the requirements therefor set forth in the
definition thereof, and the computations of the Borrowing Base set forth in each
Borrowing Base Certificate is true and correct.
4.12 ERISA. Except as disclosed on Schedule 4.12, the Company, the
Guarantors, the ERISA Affiliates and the Plans are in compliance in all material
respects with those provisions of ERISA and of the Code which are applicable
with respect to any Plan. No Prohibited Transaction and no Reportable Event has
occurred that could result in material liability to the Company or any Guarantor
or any Material Adverse Effect. Neither the Company, any Guarantor nor any ERISA
Affiliate is an employer with respect to any Multiemployer Plan. The Company,
the Guarantors, and the ERISA Affiliates have met the minimum funding
requirements under ERISA and the Code with respect to each Plan and have not
incurred any material liability to the PBGC or any Plan other than liability for
PBGC premiums and Plan contributions, none of which is overdue. The execution,
delivery and performance of this Agreement, the Notes and the Security Documents
does not constitute a Prohibited Transaction. Except with respect to any Plan
identified on Schedule 4.12 (the funding status of which is addressed therein),
there is no material Unfunded Benefit Liability.
4.13 Disclosure. No report or other information furnished in writing or
on behalf of the Company or any Guarantor to any Lender or the Agent in
connection with the negotiation or administration of this Agreement contains any
material misstatement of fact or omits to state any material fact or any fact
necessary to make the statements contained therein not misleading in light of
the circumstances in which they were made. Neither this Agreement, the Notes,
the Security Documents nor any other document, certificate, or report or
statement or other information furnished to any Lender or the Agent by or on
behalf of the Company or any Guarantor in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact in order to make the statements contained herein and
therein not misleading in light of the circumstances in which they were made.
There is no fact known to the Company or any Guarantor which has or which in the
future may have (so far as the Company or any Guarantor can now foresee) a
Material Adverse Effect, which has not been set forth in this Agreement or in
the other documents, certificates, statements, reports and other information
furnished in writing to the Lenders by or on behalf of the Company or any
Guarantor in connection with the transactions contemplated hereby.
4.14 Environmental Matters. Except as disclosed on Schedule 4.14, the
Company, the Guarantor and each of their respective Subsidiaries are in
substantial compliance with all Environmental Laws in jurisdictions in which the
Company, the Guarantor or any such Subsidiary owns or operates, or has owned or
operated, a facility or site, or arranges or has arranged for disposal or
treatment of hazardous substances, solid waste, or other wastes, accepts or has
accepted for transport any hazardous substances, solid wastes or other wastes or
holds or has held any interest in real property or otherwise.
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No demand, claim, notice, action, administrative proceeding, investigation or
inquiry whether brought by any governmental authority, private person or entity
or otherwise, arising under, relating to or in connection with any Environmental
Laws is pending or threatened against the Company, the Guarantor or any of their
respective Subsidiaries, any real property in which the Company, the Guarantor
or any such Subsidiary holds or has held an interest or any past or present
operation of the Company, the Guarantor or any such Subsidiary which could
result in a Material Adverse Effect. Neither the Company, the Guarantor nor any
of their respective Subsidiaries (a) is the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic substances, radioactive materials, hazardous wastes or
related materials into the environment which could result in a Material Adverse
Effect, (b) has received any notice of any toxic substances, radioactive
materials, hazardous waste or related materials in, or upon any of its
properties in violation of any Environmental Laws which could result in a
Material Adverse Effect, (c) knows of any basis for any such investigation,
notice or violation, or (d) owns or operates, or has owned or operated, property
which appears on the United States National Priority List or any other
governmental listing which identifies sites for remedial clean-up or
investigatory actions, except as disclosed on Schedule 4.14 hereto, and as to
such matters disclosed on such Schedule, none will have a Material Adverse
Effect. No release, threatened release or disposal of hazardous waste, solid
waste or other wastes is occurring or has occurred on, under or to any real
property in which the Company, the Guarantor or any of their respective
Subsidiaries holds any interest or performs any of its operations, in violation
of any Environmental Law which could result in a Material Adverse Effect.
4.15 No Default. Neither the Company nor any Subsidiary is in default
or has received any written notice of default under or with respect to any of
its Contractual Obligations in any respect which could have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
4.16 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation applicable to the Company or any Subsidiary could have a Material
Adverse Effect on the financial condition or business of the Company and its
Subsidiaries.
4.17 Other Debt. All agreements, instruments and documents relating in
any way to any Subordinated Debt, the Senior Note Debt or any preferred stock of
the Company, and all scheduled payments thereon, are described on Schedules
1.1(b) hereto, and accurate and complete copies thereof have been delivered to
the Agent. All Advances, all liabilities pursuant to any Hedging Contracts and
all other present and future indebtedness, obligations and liabilities owing by
the Company to the Agent or any of the Lenders under the Loan Documents
constitute Senior Debt as defined in the Subordinated Debt Documents. All
representations and warranties contained in the Subordinated Debt Documents and
the Senior Note Indenture are true and correct and there is no default or event
or condition which with notice or with lapse of time could become a default
under the Subordinated Debt Documents or the Senior Note Documents. After giving
effect to all transactions contemplated by the Subordinated Debt Documents and
the Senior Note Documents, including without limitation the incurrence of Senior
Note Debt, the Company is, and will at all times thereafter be, Solvent. All
Indebtedness incurred under this Agreement, including all Facility A Advances,
Facility B Loans and Facility C Advances, is Permitted Indebtedness under the
Senior Note Indenture.
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ARTICLE 5
COVENANTS
5.1 Affirmative Covenants. Each of the Company and the Guarantors
covenants and agrees that, until Termination Date A and thereafter until payment
in full of the principal of and accrued interest on the Notes and the
performance of all other obligations of the Company and the Guarantors under the
Loan Documents, unless the Required Lenders shall otherwise consent in writing,
it shall, and shall cause each of their respective Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence (provided that the Company may nonetheless reincorporate as
a Delaware corporation and may take whatever actions are necessary to do so),
and its qualification as a foreign corporation in good standing in each
jurisdiction except where it would not have a Material Adverse Effect, and the
rights, licenses, permits (including those required under Environmental Laws),
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its businesses; and defend all of the foregoing against all claims,
actions, demands, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority, except
where it would not have a Material Adverse Effect.
(b) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time;
and pay and discharge promptly when due all taxes, assessments and governmental
charges or levies imposed upon it or upon its income, revenues or property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise, which, if unpaid, might
give rise to Liens upon such properties or any portion thereof, except where it
would not have a Material Adverse Effect, and except to the extent that payment
of any of the foregoing is then being contested in good faith by appropriate
legal proceedings and with respect to which adequate financial reserves have
been established on the books and records of the Company, any Guarantor or any
of their respective Subsidiaries in accordance with Generally Accepted
Accounting Principles.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company, any Guarantor or any of their respective Subsidiaries and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses,
except if in the Company's reasonable business judgment it is in its best
interest not to do the foregoing; and, in addition to that insurance required
under the Security Documents, maintain in full force and effect insurance with
responsible and reputable insurance companies or associations in such amounts,
on such terms and covering such risks, including fire and other risks insured
against by extended coverage, as is usually carried by companies engaged in
similar businesses and owning similar properties similarly situated and maintain
in full force and effect public liability insurance, insurance against claims
for personal injury or death or property damage occurring in connection with any
of its activities or any properties owned, occupied or controlled by it, in such
amount as it shall reasonably deem necessary, and maintain such other insurance
as may be required by law or as may be reasonably requested by the Required
Lenders for purposes of assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Lenders and the Agent
the following:
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(i) Promptly and in any event within three calendar days after
becoming aware of the occurrence of (A) any Default or Event of Default, (B) the
commencement of any material litigation against, by or affecting the Company,
any Guarantor or any of their respective Subsidiaries, and any material
developments therein, or (C) entering into any material contract or undertaking
that is not entered into in the ordinary course of business or (D) any
development in the business or affairs of the Company, any Guarantor or any of
their respective Subsidiaries which has resulted in or which is likely in the
reasonable judgment of the Company or any Guarantor, to result in a Material
Adverse Effect, a statement of the chief financial officer of the Company or the
Guarantor, as the case may be setting forth details of each such Default or
Event of Default or such litigation, material contract or undertaking or
development and the action which the Company, such Guarantor or such Subsidiary,
as the case may be, has taken and proposes to take with respect thereto;
(ii) As soon as available and in any event within 30 days after
the end of each month, the consolidated and consolidating balance sheet of the
Company and its Subsidiaries as of the end of such month, and the related
consolidated and consolidating statements of income, retained earnings and cash
flows for the period commencing at the end of the previous fiscal year and
ending with the end of such month, setting forth in each case in comparative
form the corresponding figures for the corresponding date or period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer of the Company as
having been prepared in accordance with Generally Accepted Accounting
Principles, together with a certificate of the chief financial officer of the
Company stating (A) that no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has occurred and is continuing,
a statement setting forth the details thereof and the action which the Company
has taken and proposes to take with respect thereto, and (B) that a computation
(which computation shall accompany such certificate and shall be in reasonable
detail) showing compliance with Section 5.2(a) and (b) hereof is in conformity
with the terms of this Agreement;
(iii) As soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, retained earnings and changes in
financial position of the Company and its Subsidiaries for such fiscal year,
with a customary audit report of Price Waterhouse, or other independent
certified public accountants selected by the Company and acceptable to the
Required Lenders, without qualifications unacceptable to the Required Lenders,
together with a certificate of such accountants stating (A) that they have
reviewed this Agreement and stating further whether, in the course of their
review of such financial statements, they have become aware of any Default or
Event of Default and, if such a Default or Event of Default exists and is
continuing, a statement setting forth the nature and status thereof, and (B)
that a computation by the Company (which computation shall accompany such
certificate and shall be in reasonable detail) showing compliance with Section
5.2(a) and (b) hereof is in conformity with the terms of this Agreement;
(iv) Promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements which the Company or any
Guarantor or any of their respective Subsidiaries sends to or files with any of
their respective security holders or any securities exchange or the Securities
and Exchange Commission or any successor agency thereof; and
(v) As soon as available and in any event not later than three
calendar days after the end of each week in the case of weekly reporting on the
following Business Day in the case of
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daily reporting, a Borrowing Base Certificate prepared as of the close of
business on the last day of each week or, in the event the aggregate principal
amount of Facility A Advances exceeds $32,500,000 or in connection with any
request for a Facility A Advance which would cause the aggregate principal
amount of Facility A Advances to exceed $32,500,000, prepared as of the close of
business on each Business Day, together with supporting schedules, in form and
detail satisfactory to the Agent, setting forth such information as the Agent
may request with respect to the aging, value, location and other information
relating to the computation of the Borrowing Base and the eligibility of any
property or assets included in such computation, certified as true and correct
by a corporate officer of the Company;
(vi) Promptly and in any event within 10 calendar days after
receiving or becoming aware thereof (A) a copy of any notice of intent to
terminate any Plan filed with the PBGC, (B) a statement of the chief financial
officer of the Company or any Guarantor, as the case may be, setting forth the
details of the occurrence of any Reportable Event, (C) a copy of any notice that
the Company, any Guarantor, or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or to appoint a
trustee to administer any such Plan, or (D) a copy of any notice of failure to
make a required installment or other payment within the meaning of Section
412(n) of the Code or Section 302(f) of ERISA with respect to any Plan;
(vii) As soon as available and in any event within 30 days after
the end of each month, a report with respect to the Company setting forth a
summary and aging of accounts payable of the Company, a listing of any checks
held after the due date of the related vendor invoice and setting forth the
corresponding due dates of such invoices, in form and detail satisfactory to the
Agent, certified as true and correct by the chief financial officer of the
Company;
(viii) Promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the Company, any
Guarantor or any of their respective Subsidiaries as any Lender or the Agent may
from time to time reasonably request;
(ix) As soon as available and in any event within 10 days after
the end of each month, an analysis of the Saturn Tooling Project relating to
ownership and containing a description of competing Liens, completion
percentage, copies of the minutes of all substantive meetings among the Company,
the Guarantors and Saturn or tool suppliers, cost comparisons to the original
budget and the location of tooling and any other related information which the
Agent shall reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) permit any
Lender or the Agent or any agents or representatives thereof to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, the Company, the Guarantors and their respective Subsidiaries,
and to discuss the affairs, finances and accounts of the Company, the Guarantors
and their respective Subsidiaries with their respective directors, officers,
employees and independent auditors, and by this provision each of the Company
and the Guarantors hereby authorizes such persons to discuss such affairs,
finances and accounts with any Lender or the Agent, provided that such Lender or
the Agent, as the case may be, shall provide prior notice of any of the actions
described in this clause (i) if no Event of Default exists, and (ii) permit the
Agent or any of its agents or representatives to conduct a comprehensive field
audit of its books, records, properties and assets, including without limitation
all collateral subject to the Security Documents, at the expense of the
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Company, provided that prior to occurrence of an Event of Default no more than
two such field audits shall be performed in any twelve month period; and
(f) Additional Security and Collateral. Promptly (i) execute and
deliver and cause each Subsidiary of the Company and the Guarantors to execute
and deliver, additional Security Documents, within 30 days after request
therefor by the Lenders and the Agent, sufficient to grant to the Agent for the
benefit of the Lenders liens and security interests in any after acquired
property of the type described in Section 2.11, and (ii) cause each person
becoming a Subsidiary of the Company or any Guarantor from time to time to
execute and deliver to the Lenders and the Agent, within 30 days after such
person becomes a Subsidiary, a Guaranty (or become a party hereto as a Guarantor
as required by the Agent) and Security Documents, together with other related
documents described in Section 2.5, sufficient to grant to the Agent for the
benefit of the Lenders liens and security interests in all collateral of the
type described in Section 2.11. The Company shall notify the Lenders and the
Agent, within 10 days after the occurrence thereof, of the acquisition of any
property that is covered by Section 2.11 by the Company or any Guarantor that is
not subject to the existing Security Documents, any person's becoming a
Subsidiary and any other event or condition that may require additional action
of any nature in order to preserve the effectiveness and perfected status of the
liens and security interests of the Lenders and the Agent with respect to such
property pursuant to the Security Documents.
(g) Further Assurances. Will, and will cause each Guarantor to, execute
and deliver within 30 days after request therefor by the Lenders and the Agent,
all further instruments and documents and take all further action that may be
reasonably necessary or desirable, or that the Agent may request, in order to
give effect to, and to aid in the exercise and enforcement of the rights and
remedies of the Lenders under, this Agreement, the Notes and the Security
Documents, including without limitation using reasonable efforts to cause, on or
before sixty (60) days after the Effective Date, each lessor of real property to
the Company, any Guarantor or any of their respective Subsidiaries to execute
and deliver to the Agent, prior to or upon the commencement of any tenancy, an
agreement in form and substance acceptable to the Lenders and the Agent duly
executed on behalf of such lessor waiving any distraint, lien and similar rights
with respect to any property subject to the Security Documents and agreeing to
permit the Lenders and the Agent to enter such premises in connection therewith.
At all times on and after the date requested by the Agent in its discretion, the
Company and the Guarantors shall direct all customers and other account debtors
to make all payments in connection with any obligations to the Company or any
Guarantor directly to a lock-box account, which account shall be a non-interest
bearing account over which the Agent shall have the power of application and
withdrawal, and all amounts received in such lock-box account shall be applied
to the Advances on such terms reasonably required by the Agent, and the Company
and the Guarantors shall promptly execute such lock-box agreements, dominion of
funds agreements and related agreements in connection therewith, each in form
and substance satisfactory to the Agent.
5.2 Negative Covenants. Until Termination Date A and thereafter until
payment in full of the principal of and accrued interest on the Notes and the
performance of all other obligations of the Company and the Guarantors under the
Loan Documents, the Company agrees that, unless the Required Lenders shall
otherwise consent in writing it shall not, and shall not permit any of its
Subsidiaries to:
(a) Funded Debt Ratio. Permit or suffer the Funded Debt Ratio of the
Company and its Subsidiaries at any time to be greater than: (i) 5.0:1.0 during
the period from and including December 31, 1999 to and including December 30,
2000; and (ii) 4.5:1.0 during the period from and including December 31, 2000
and thereafter.
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(b) Fixed Charge Coverage Ratio. Permit or suffer the Fixed Charge
Coverage Ratio to be less than: (i) 1.25:1.00 from and including the Effective
Date through and including July 30, 1998; (ii) 1.10:1.00 from and including July
31, 1998 through and including October 30, 1998; (iii) 0.90:1.00 from and
including October 31, 1998 through and including July 30, 1999; (iv) 1.25:1.00
from and including July 31, 1999 through and including October 30, 1999; and (v)
1.50:1.00 from and including October 31, 1999 and thereafter.
(c) Senior Secured Funded Debt Ratio. Permit or suffer the Senior
Secured Funded Debt Ratio of the Company and Subsidiaries to exceed at any time:
(i) 2.00:1.00 from and including the Effective Date through and including July
30, 1998; (ii) 3.00:1.00 from and including July 31, 1998 through and including
October 30, 1998; (iii) 4.00:1.00 from and including October 31, 1998 through
and including January 30, 1999; (iv) 4.25:1.00 from and including January 31,
1999 to and including April 29, 1999; (v) 3.00:1.00 from and including April 30,
1999 to and including July 30, 1999 and (vi) 2.00:1.00 from and including July
31, 1999 through and including December 31, 1999.
(d) Capital Expenditures. Acquire any fixed asset or make any other
capital expenditure if the aggregate purchase price and other acquisition costs
of all such fixed assets acquired and other capital expenditures made by the
Company or an of its Subsidiaries during any fiscal year of the Company would
exceed: (i) $23,000,000 for the fiscal year ending December 31, 1998 or (ii)
$10,000,000 (plus the unused availability from the prior year up to $5,000,00)
at the end of any fiscal year thereafter.
(e) Net Worth. Permit or suffer the consolidated Net Worth of the
Company and its Subsidiaries to be less than the sum of: (a)(i) negative
$6,500,000 from the Effective Date through and including July 30, 1998; (ii)
negative $10,500,000 from and including July 31, 1998 through and including
October 30, 1998; (iii) negative $11,500,000 from and including October 31, 1998
and thereafter, plus (b) 50% of Net Income, commencing on January 1, 1998,
adjusted as of the last day of each fiscal quarter of the Company in 1998 and as
of each fiscal year of the Company thereafter; provided, that if such net income
is negative in any fiscal quarter or any fiscal year, as the case may be, the
amount added for such period shall be zero and shall not reduce the amount added
for any other period.
(f) Indebtedness. Create, incur, assume or in any manner become liable
in respect of, or suffer to exist, any Indebtedness other than:
(i) The Advances;
(ii) The Indebtedness described in Schedule 5.2(f) hereto, but no
increase in the amount thereof shall be permitted;
(iii) Indebtedness in aggregate outstanding principal amount not
exceeding $1,000,000 which is secured by one or more Liens permitted by Section
5.2(g)(vi) hereof;
(iv) Subordinated Debt of the Company or any of its Subsidiaries
in aggregate principal amount not to exceed $7,000,000; and Senior Note Debt in
aggregate principal not to exceed $85,000,000, in each case as reduced from time
to time by any payments thereon;
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(v) Indebtedness pursuant to any Hedging Contracts with any
Lender, provided that the Company and the Guarantors shall not enter into any
Hedging Contracts for the purposes of financial speculation; and
(vi) Indebtedness of Manufacturing to the Company; and
(vii) Other Indebtedness with the prior written permission of the
Required Lenders.
(g) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being contested in
good faith by appropriate proceedings and as to which adequate financial
reserves have been established on its books and records in accordance with
Generally Accepted Accounting Principles;
(ii) Liens (other than any Lien imposed by ERISA or any
Environmental Law) created and maintained in the ordinary course of business
which are not material in the aggregate, and which would not have a Material
Adverse Effect and which constitute (A) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar legislation, (B) good
faith deposits in connection with bids, tenders, contracts or leases to which
the Company or any of its Subsidiaries is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits, (C) liens
imposed by law, such as those of carriers, warehousemen and mechanics, if
payment of the obligation secured thereby is not yet due, (D) Liens securing
taxes, assessments or other governmental charges or levies not yet subject to
penalties for nonpayment, and (E) pledges or deposits to secure public or
statutory obligations of the Company or any of its Subsidiaries, or surety,
customs or appeal bonds to which the Company or any of its Subsidiaries is a
party;
(iii) Liens affecting real property which constitute minor survey
exceptions or defects or irregularities in title, minor encumbrances, easements
or reservations of, or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Company or any of its Subsidiaries;
(iv) Liens created pursuant to the Security Documents and Liens
expressly permitted by the Security Documents;
(v) Each Lien described in Schedule 5.2(g) hereto may be suffered
to exist, but no increase in the amount secured thereby shall be permitted; and
(vi) Any Lien created to secure payment of a portion of the
purchase price of, or existing at the time of acquisition of, any tangible fixed
asset acquired by the Company or any of its Subsidiaries may be created or
suffered to exist upon such fixed asset if the outstanding principal amount of
the Indebtedness secured by such Lien does not at any time exceed the purchase
price paid by the Company or such Subsidiary for such fixed asset and the
aggregate principal amount of all Indebtedness secured by such Liens does not
exceed $1,000,000, provided that such Lien does not encumber any other
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asset at any time owned by the Company or such Subsidiary, and provided,
further, that not more than one such Lien shall encumber such fixed asset at any
one time.
(h) Merger; Acquisitions; Etc. Subject to Section 5.2(l), purchase
or otherwise acquire, whether in one or a series of transactions, all or a
substantial portion of the business assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, of any person, or all or a
substantial portion of the capital stock of or other ownership interest in any
other person; nor merge or consolidate or amalgamate with any other person or
take any other action having a similar effect, nor enter into any joint venture
or similar arrangement with any other person, provided, however, that this
Section 5.2(h) shall not prohibit any merger of any Subsidiary into another
Subsidiary or of any Subsidiary into the Company, provided that the Company
shall be the surviving corporation and any merger required to reincorporate the
Company as a Delaware corporation.
(i) Disposition of Assets; Etc. Sell, lease, license, transfer,
assign or otherwise dispose of all or a substantial portion of its business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether in one or a series of transactions, other than inventory
sold in the ordinary course of business upon customary credit terms and sales of
scrap or obsolete material or equipment, provided, however, that this Section
5.2(i) shall not prohibit any such sale, lease, license, transfer, assignment or
other disposition if the aggregate book value (disregarding any write-downs of
such book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of after the date of
this Agreement shall be less than $1,000,000 in the aggregate and if,
immediately before and after such transaction, no Default or Event of Default
shall exist or shall have occurred and be continuing.
(j) Nature of Business. Make any substantial change in the nature
of its business from that engaged in on the date of this Agreement or engage in
any other businesses other than those in which it is engaged on the date of this
Agreement.
(k) Dividends and Other Restricted Payments. Make, pay, declare,
authorize or distribute directly or indirectly any of the following: (i) any
dividend, payment or other distribution in respect of any class of its capital
stock, other than any dividend, payment or other distribution from a Subsidiary
to the Company, (ii) any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of its capital stock, other than any dividend, payment
or other distribution from a Subsidiary to the Company, (iii) any payment,
prepayment or redemption of any Subordinated Debt, whether of principal,
interest or otherwise, or any other payment or arrangement or agreement
providing for the defeasance of any Subordinated Debt, and (iv) any prepayment
or redemption of any Senior Note Debt, whether of principal, interest or
otherwise, or any other payment or arrangement or agreement providing for the
defeasance of any Senior Note Debt other than required prepayment or redemption
payments on the Senior Note Debt as described in the Senior Note Indenture (all
of the foregoing described in the above clauses (i), (ii), (iii) and (iv)
collectively referred to as "Restricted Payments") from the Effective Date
hereof to and including June 30, 1999.
After July 1, 1999, the Company may make, pay, declare, authorize or distribute
directly or indirectly such dividends or Restricted Payments up to $1,000,000 in
any year if both of the following conditions are satisfied, both before any such
dividend or Restricted Payment is made and on a pro forma basis satisfactory to
the Agent after giving effect to any such dividend or Restricted Payment: (x) no
Default or Event of Default shall exist or shall have occurred and be continuing
and (y) the Company shall have the ability to borrow at least $2,000,000 in
Loans under this Agreement. The Company acknowledges and
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agrees that this Section 5.2(k) shall be deemed breached and an Event of Default
shall be deemed to have occurred 2 Business Days prior to the date any payment
of principal, interest or other payment is due on the Subordinated Debt if the
Company is unable to comply with this Section 5.2(k) on a proforma basis as of
the date such payment is to be made. For purposes of this Agreement, "capital
stock" shall include capital stock, whether common, preferred or otherwise, and
any securities exchangeable for or convertible into capital stock and any
warrants, rights or other options to purchase or otherwise acquire capital stock
or such securities.
(l) Investments, Loans and Advances. Purchase or otherwise acquire any
capital stock of or other ownership interest in, or debt securities of or other
evidences of Indebtedness of, any other person; nor make any loan or advance of
any of its funds or property or make any other extension of credit to, or make
any investment or acquire any interest whatsoever in, any other person; nor
incur any Contingent Liability; other than (i) extensions of trade credit made
in the ordinary course of business on customary credit terms and commission,
travel and similar advances made to officers and employees in the ordinary
course of business, including for personal computers, (ii) commercial paper of
any United States issuer having the highest rating then given by Xxxxx'x
Investors Service, Inc., or Standard & Poor's Rating Group, direct obligations
of and obligations fully guaranteed by the United States of America or any
agency or instrumentality thereof, or certificates of deposit of any commercial
bank which is a member of the Federal Reserve System and which has capital,
surplus and undivided profit (as shown on its most recently published statement
of condition) aggregating not less than $100,000,000, (iii) those investments,
loans, advances and other transactions described in Schedule 5.2(l) hereto,
having the same terms as existing on the date of this Agreement, but no
extension or renewal thereof shall be permitted and, (iv) investments, loans and
advances from a Subsidiary to the Company or from the Company to a Guarantor.
(m) Transactions with Affiliates. Enter into, become a party to, or
become liable in respect of, any contract or undertaking with any Affiliate,
other than those shown on Schedule 5.2(m) hereto, except in the ordinary course
of business and on terms not less favorable to the Company or such Subsidiary
than those which could be obtained if such contract or undertaking were an arms
length transaction with a person other than an Affiliate. The Company agrees
that it will not pay, or allow any Subsidiaries to pay, whether directly or
indirectly, any amounts to MS or Holdings pursuant to the management agreement
referenced on Schedule 5.2(m) or under any similar agreement or arrangement if
any Event of Default exists hereunder or would be caused by any such payment,
and MS and Holdings agree not to receive any such payment.
(n) Modification of Subordinated Debt and Senior Note Debt. Amend or
modify, or consent or agree to any amendment or modification of, (i) any Senior
Note Document that increases the interest rate, makes the covenants or defaults
thereunder more burdensome or shortens any maturity thereunder or (ii) any
Subordinated Debt Document, in each case without the prior written consent of
the Required Lenders.
(o) Negative Pledge Limitation. Enter into any agreement, other than
the Senior Notes Indenture as in effect on the Effective Date and without giving
effect to any subsequent amendment or modification thereof, with any person
other than the Lenders, which prohibits or limits the ability of the Company or
any Guarantor to create, incur, assume or suffer to exist any lien upon any of
its assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired.
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(p) Inconsistent Agreements. Enter into any agreement containing any
provision which would be violated or breached by any Loan Document or any of the
transactions contemplated thereby or by performance by the Company or any of its
Subsidiaries or any Guarantor of its obligations in connection therewith.
(q) Accounting Changes. The Company shall not change its fiscal year or
make any significant changes (i) in accounting treatment and reporting practices
except as permitted by generally accepted accounting principles and disclosed to
the Lenders, or (ii) in tax reporting treatment except as permitted by law and
disclosed to the Lenders.
(r) Additional Covenants. If at any time the Company or any Guarantor
shall enter into or be a party to any instrument or agreement, including all
such instruments or agreements in existence as of the date hereof and all such
instruments or agreements entered into after the date hereof, relating to or
amending any terms or conditions applicable to any of its Indebtedness which
includes covenants, terms, conditions or defaults not substantially provided for
in this Agreement or more favorable to the lender or lenders thereunder than
those provided for in this Agreement, then the Company shall promptly so advise
the Agent and the Lenders. Thereupon, if the Agent shall request, upon notice to
the Company, the Agent and the Lenders shall enter into an amendment to this
Agreement or an additional agreement (as the Agent may request), providing for
substantially the same covenants, terms, conditions and defaults as those
provided for in such instrument or agreement to the extent required and as may
be selected by the Agent. In addition to the foregoing, any covenants, terms,
conditions or defaults in the Subordinated Debt Documents or in the Senior Note
Documents not substantially provided for in this Agreement or more favorable to
the holders of the Subordinated Debt or the Senior Note Debt, as the case may
be, are hereby incorporated by reference into this Agreement to the same extent
as if set forth fully herein, and no subsequent amendment, waiver or
modification thereof shall affect any such covenants, terms, conditions or
defaults as incorporated herein. Without limiting the foregoing, each of MS and
Holdings agree that they will not amend or modify the terms of any subordinated
debt issued by them, including without limitation the junior subordinated
promissory note due 2007 issued by Holdings, if such amendment or modification
would shorten the due date of any payment due thereunder or increase the amount
of any payment due thereunder.
ARTICLE 6
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived pursuant to Section 9.1:
(a) Nonpayment. The Company shall fail to pay when due or within
five days of when due any principal of the Notes, or any reimbursement
obligation under Section 3.3 (whether by deemed disbursement of a Loan or
otherwise), or any interest on the Notes or any fees or any other amount payable
hereunder; or
(b) Misrepresentation. Any representation or warranty made by the
Company or any Guarantor in any Loan Document or any other certificate, report,
financial statement or other document furnished by or on behalf of the Company
or any Guarantor in connection with this Agreement, shall prove to have been
incorrect in any material respect when made or deemed made; or
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(c) Certain Covenants. The Company or any Guarantor shall fail to
perform or observe any term, covenant or agreement contained in Article V (other
than Section 5.1(a)) hereof; or
(d) Other Defaults. The Company or any Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or in any Security Document, and any such failure shall remain
unremedied for 30 calendar days after notice thereof shall have been given to
the Company or such Guarantor, as the case may be, by the Agent (or such longer
or shorter period of time as may be specified in such Security Document); or
(e) Cross Default. The Company or any Guarantor or any of their
respective Subsidiaries shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due under any
of its Indebtedness (other than Indebtedness hereunder), beyond any period of
grace provided with respect thereto, which individually or together with other
such Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $1,000,000; or if the Company or any
Guarantor or any of their respective Subsidiaries fails to perform or observe
any other term, covenant or agreement contained in, or if any other event or
condition occurs or exists under, any agreement, document or instrument
evidencing or securing any such Indebtedness having such aggregate outstanding
principal amount, or under which any such Indebtedness was incurred, issued or
created, beyond any period of grace, if any, provided with respect thereto if
the effect of such failure is either (i) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment in
respect of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company; or
(f) Judgments. One or more judgments or orders for the payment of
money in an aggregate amount of $1,000,000, other than those covered by
insurance (provided that only such a judgments for which the relevant insurance
company has accepted coverage thereof shall be considered covered by insurance)
shall be rendered against the Company or any Guarantor or any of their
respective Subsidiaries, or any other judgment or order (whether or not for the
payment of money) shall be rendered against or shall affect the Company or any
Guarantor or any of their respective Subsidiaries which causes or could cause a
Material Adverse Effect, and either (i) such judgment or order shall have
remained unsatisfied and the Company or such Guarantor or such Subsidiary shall
not have taken action necessary to stay enforcement thereof by reason of pending
appeal or otherwise, prior to the expiration of the applicable period of
limitations for taking such action or, if such action shall have been taken, a
final order denying such stay shall have been rendered, or (ii) enforcement
proceedings shall have been commenced by any creditor upon any such judgment or
order; or
(g) ERISA. The occurrence of any of the following events, if such
event could alone or in combination with any other such event or events have a
Material Adverse Effect: a Reportable Event that results in or could result in
material liability of the Company, or any Guarantor to the PBGC or to any Plan
which could constitute grounds for termination of any Plan by the PBGC or for
the appointment by the appropriate United States District Court of a trustee to
administer any Plan or the filing by the Company, any Guarantor, or any ERISA
Affiliate of a notice of intent to terminate a Plan or the institution of other
proceedings to terminate a Plan; or the Company, any Guarantor, or any ERISA
Affiliate shall fail to pay when due any material liability to the PBGC or to a
Plan; or the PBGC shall have instituted proceedings to terminate, or to cause a
trustee to be appointed to administer, any Plan; or any person engages in a
Prohibited Transaction with respect to any Plan which results in or could result
in material liability of the Company, or any Guarantor; or failure by the
Company, any Guarantor, or any ERISA Affiliate to make a required installment or
other payment to any Plan within the meaning of
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Section 302(f) of ERISA or Section 412(n) of the Code that results in or could
result in material liability of the Company, or any Guarantor to the PBGC or any
Plan; or the withdrawal of the Company, any Guarantor, or any ERISA Affiliate
from a Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA; or the Company, any Guarantor or any
ERISA Affiliate becomes an employer with respect to any Multiemployer Plan
without the prior written consent of the Required Lenders; or
(h) Insolvency, Etc. The Company, any Guarantor or any of their
respective Subsidiaries shall be dissolved or liquidated (or any judgment, order
or decree therefor shall be entered), or shall generally not pay its debts as
they become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors, or
shall institute, or there shall be instituted against the Company, any Guarantor
or any of their respective Subsidiaries, any proceeding or case seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such proceeding is instituted against the Company, such Guarantor or
such Subsidiary and is being contested by the Company, such Guarantor or such
Subsidiary, as the case may be, in good faith by appropriate proceedings, such
proceeding shall remain undismissed or unstayed for a period of 60 days; or the
Company, such Guarantor or such Subsidiary shall take any action (corporate or
other) to authorize any of the actions described above in this subsection; or
(i) Loan Documents. Any event of default described in any Loan Document
shall have occurred and be continuing, or any material provision of Article VIII
hereof or of any Loan Document shall at any time for any reason cease to be
valid and binding and enforceable against any obligor thereunder, or the
validity, binding effect or enforceability thereof shall be contested by any
person, or any obligor, shall deny that it has any or further liability or
obligation thereunder, or any Loan Document shall be terminated, invalidated or
set aside, or be declared ineffective or inoperative or in any way cease to give
or provide to the Lenders and the Agent the benefits purported to be created
thereby.
(j) Change in Control. Any Change in Control shall occur.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Agent may and, upon being directed to do so by the Required
Lenders, shall by notice to the Company (i) terminate the Commitments or (ii)
declare the outstanding principal of, and accrued interest on, the Notes, all
unpaid reimbursement obligations in respect of drawings under Letters of Credit
and all other amounts owing under this Agreement to be immediately due and
payable, or (iii) demand immediate delivery of cash collateral, and the Company
agrees to deliver such cash collateral upon demand, in an amount equal to the
maximum amount that may be available to be drawn at any time prior to the stated
expiry of all outstanding Letters of Credit, or any one or more of the
foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including such cash collateral, shall become immediately due and
payable, provided that in the case of any event or condition described in
Section 6.1(h) with respect to the Company or any Guarantor, the Commitments
shall automatically terminate forthwith and all such amounts, including such
cash collateral, shall automatically become immediately due and payable without
notice; in all cases without demand, presentment, protest, diligence, notice of
dishonor or other formality, all of which are hereby expressly waived. Such cash
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collateral delivered in respect of outstanding Letters of Credit shall be
deposited in a special cash collateral account to be held by the Agent as
collateral security for the payment and performance of the Company's obligations
under this Agreement to the Lenders and the Agent.
(b) The Agent may and, upon being directed to do so by the Required
Lenders, shall, in addition to the remedies provided in Section 6.2(a), exercise
and enforce any and all other rights and remedies available to it, whether
arising under any Loan Document or under applicable law, in any manner deemed
appropriate by the Agent, including suit in equity, action at law, or other
appropriate proceedings, whether for the specific performance (to the extent
permitted by law) of any covenant or agreement contained in any Loan Document or
in aid of the exercise of any power granted in any Loan Document.
(c) Upon the occurrence and during the continuance of any Event of
Default, each Lender may at any time and from time to time, without notice to
the Company or any Guarantor (any requirement for such notice being expressly
waived by the Company and each Guarantor) set off and apply against any and all
of the obligations of the Company and each Guarantor now or hereafter existing
under this Agreement, whether owing to such Lender or any other Lender or the
Agent, any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Company or any Guarantor and any
property of the Company or any Guarantor from time to time in possession of such
Lender, irrespective of whether or not such Lender shall have made any demand
hereunder and although such obligations may be contingent and unmatured. Each of
the Company and the Guarantors hereby grants to the Lenders and the Agent a lien
on and security interest in all such deposits, indebtedness and property as
collateral security for the payment and performance of the obligations of the
Company and each Guarantor under this Agreement. The rights of such Lender under
this Section 6.2(c) are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Lender may have.
ARTICLE 7
THE AGENT AND THE BANKS
7.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto. The provisions of this Article VII are solely for the
benefit of the Agent and the Lenders, and neither the Company nor any Guarantor
shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, the Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Company.
7.2 Agent and Affiliates. NBD Bank in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise or refrain from exercising the same as though it were not the
Agent. NBD Bank and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, and generally engage in any
kind of banking, trust, financial advisory or other business with the Company,
any Guarantor or any of their respective Subsidiaries as if it were not acting
as Agent hereunder, and may accept fees and other consideration therefor without
having to account for the same to the Lenders.
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7.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of any Loan Document, have a fiduciary relationship with any Lender, and
no implied covenants, responsibilities, duties, obligations or liabilities shall
be read into any Loan Document or shall otherwise exist against the Agent. As to
any matters not expressly provided for by any Loan Document the Agent shall not
be required to exercise any discretion or take any action, but the Agent shall
take such action or omit to take any action pursuant to the reasonable written
instructions of the Required Lenders and may request instructions from the
Required Lenders. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, pursuant to the written instructions of the Required
Lenders (or all of the Lenders, as the case may be, in accordance with the
requirements of this Agreement), which instructions and any action or omission
pursuant thereto shall be binding upon all of the Lenders; provided, however,
that the Agent shall not be required to act or omit to act if, in the judgment
of the Agent, such action or omission may expose the Agent to personal liability
or is contrary to the Loan Documents or applicable law.
7.4 Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including without limitation collateral agents) and may
consult with legal counsel (who may be counsel for the Company), independent
public accountants and other experts selected by it and shall not be liable to
the Lenders, except as to money or property received by it or its authorized
agents, for the negligence or misconduct of any such agent selected by it with
reasonable care or for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
7.5 Default. The Agent shall not be deemed to have knowledge of the
occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Lender or the Company or any Guarantor specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice, the Agent shall
give written notice thereto to the Lenders.
7.6 Liability of Agent. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Lenders for any action
taken or not taken by it or them in connection herewith with the consent or at
the request of the Required Lenders or in the absence of its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any recital, statement, warranty or
representation contained in this Agreement, any Note or any Security Document,
or in any certificate, report, financial statement or other document furnished
in connection with this Agreement, (ii) the performance or observance of any of
the covenants or agreements of the Company or any Guarantor, (iii) the
satisfaction of any condition specified in Article II hereof, or (iv) the
validity, effectiveness, legal enforceability, value or genuineness of the Loan
Documents or any collateral subject thereto or any other instrument or document
furnished in connection herewith.
7.7 Nonreliance on Agent and Other Lenders. Each Lender acknowledges
and agrees that it has, independently and without reliance on the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and the
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Guarantors and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decision in taking or not taking action
under this Agreement. The Agent shall not be required to keep itself informed as
to the performance or observance by the Company or any Guarantor of the Loan
Documents or any other documents referred to or provided for herein or to
inspect the properties or books of the Company or any Guarantor and, except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any information concerning the
affairs, financial condition or business of the Company, any Guarantor or any of
their respective Subsidiaries which may come into the possession of the Agent or
any of its affiliates.
7.8 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Company or any Guarantor, but without limiting any
obligation of the Company or any Guarantor to make such reimbursement), ratably
according to the respective principal amounts of the Advances then outstanding
made by each of them (or if no Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all claims, damages, losses, liabilities, costs or expenses of any kind or
nature whatsoever (including, without limitation, fees and disbursements of
counsel) which may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of any Loan Document or the transactions
contemplated hereby or any action taken or omitted by the Agent under any Loan
Document, provided, however, that no Lender shall be liable for any portion of
such claims, damages, losses, liabilities, costs or expenses resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including without limitation
fees and expenses of counsel) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the Company
or any Guarantor, but without limiting the obligation of the Company or any
Guarantor to make such reimbursement. Each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any amounts owing to the Agent by
the Lenders pursuant to this Section. If the indemnity furnished to the Agent
under this Section shall, in the judgment of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity from the Lenders
and cease, or not commence, to take any action until such additional indemnity
is furnished.
7.9 Successor Agent. The Agent may resign as such at any time upon ten
days' prior written notice to the Company and the Lenders. In the event of any
such resignation, the Required Lenders shall, by an instrument in writing
delivered to the Company and the Agent, appoint a successor, which shall be a
commercial bank organized under the laws of the United States or any State
thereof and having a combined capital and surplus of at least $500,000,000. If a
successor is not so appointed or does not accept such appointment before the
Agent's resignation becomes effective, the retiring Agent may appoint a
temporary successor to act until such appointment by the Required Lenders is
made and accepted or if no such temporary successor is appointed as provided
above by the retiring Agent, the Required Lenders shall thereafter perform all
the duties of the Agent hereunder until such appointment by the Required Lenders
is made and accepted. Any successor to the Agent shall execute and deliver to
the Company and the Lenders an instrument accepting such appointment and
thereupon such successor Agent, without further act, deed, conveyance or
transfer shall become vested with all of the properties, rights, interests,
powers, authorities and obligations of its predecessor hereunder with like
effect as if originally named as Agent hereunder. Upon request of such successor
Agent, the Company and the
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retiring Agent shall execute and deliver such instruments of conveyance,
assignment and further assurance and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in such successor
Agent all such properties, rights, interests, powers, authorities and
obligations. The provisions of this Article VII shall thereafter remain
effective for such retiring Agent with respect to any actions taken or omitted
to be taken by such Agent while acting as the Agent hereunder.
7.10 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Advance or any
other obligation owing to the Lenders under this Agreement through the exercise
of a right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Lenders on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Lender shall
promptly purchase from the other Lenders participations in such Advances and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all of the Lenders share such
payment in accordance with such ratable shares. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of set-off, banker's lien, counterclaim or otherwise as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of
participations theretofore sold, return its share of that benefit to each Lender
whose payment shall have been rescinded or otherwise restored. The Company and
the Guarantors each agrees that any Lender so purchasing such a participation
may, to the fullest extent permitted by law, exercise all rights of payment,
including set-off, banker's lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such Advance or other
obligation in the amount of such participation. The Lenders further agree among
themselves that, in the event that amounts received by the Lenders and the Agent
hereunder are insufficient to pay all such obligations or insufficient to pay
all such obligations when due, the fees and other amounts owing to the Agent in
such capacity shall be paid therefrom before payment of obligations owing to the
Lenders under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Lender or the Agent shall fail to remit to the Agent or any
other Lender an amount payable by such Lender or the Agent to the Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to the Agent or
such other Lender at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Lenders and the Agent that if the Agent shall
engage in any other transactions with the Company and shall have the benefit of
any collateral or security therefor which does not expressly secure the
obligations arising under this Agreement except by virtue of a so-called dragnet
clause or comparable provision, the Agent shall be entitled to apply any
proceeds of such collateral or security first in respect of the obligations
arising in connection with such other transaction before application to the
obligations arising under this Agreement.
7.11 Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Company and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year
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for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent, in each case certifying that such Lender
is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Company and the Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax. Each such Lender delivering such forms shall indemnify the Company
and the Agent, and hold harmless the Company and the Agent from, all losses and
damages suffered by the Company or the Agent for any inaccuracies in any such
forms.
ARTICLE 8
GUARANTY
As an inducement to the Lenders and the Agent to enter into the
transactions contemplated by this Agreement, each Guarantor agrees with the
Lenders and the Agent as follows:
8.1 Guarantee of Obligations.
(a) Each Guarantor hereby (i) guarantees, as principal obligor and
not as surety only, to the Lenders the prompt payment of the principal of and
any and all accrued and unpaid interest (including interest which otherwise may
cease to accrue by operation of any insolvency law, rule, regulation or
interpretation thereof) on the Advances and all other obligations of the Company
to the Lenders and the Agent under the Loan Documents when due, whether by
scheduled maturity, acceleration or otherwise, all in accordance with the terms
of the Loan Documents, including, without limitation, default interest,
indemnification payments and all reasonable costs and expenses incurred by the
Lenders and the Agent in connection with enforcing any obligations of the
Company hereunder, including without limitation the reasonable fees and
disbursements of counsel, (ii) guarantees the prompt and punctual performance
and observance of each and every term, covenant or agreement contained in this
Agreement and the Notes to be performed or observed on the part of the Company,
(iii) guarantees, as principal obligor not as surety only, to the Lenders the
prompt payment of any obligation or other liability pursuant to any Hedging
Contract among the Company or any Guarantor with any Lender, and (iv) agrees to
make prompt payment, on demand, of any and all reasonable costs and expenses
incurred by the Lenders or the Agent in connection with enforcing the
obligations of the Guarantors hereunder, including, without limitation, the
reasonable fees and disbursements of counsel, in all cases described in this
clause (a) whether now owing or outstanding or at any time hereafter owing or
outstanding (all of the foregoing being collectively referred to as the
"Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of the
Company contained in this Agreement shall not be performed or observed by the
Company as provided therein, or if any amount payable under or in connection
with this Agreement shall not be paid in full when the same becomes due and
payable, each Guarantor undertakes to perform or cause to be performed promptly
each of such duties, agreements and obligations and to pay forthwith each such
amount to the Agent for the account of the Lenders regardless of any defense or
setoff or counterclaim which the Company may have or assert, and regardless of
any other condition or contingency.
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8.2 Nature of Guaranty. The obligations of the Guarantors hereunder
constitute an absolute and unconditional and irrevocable guaranty of payment and
not a guaranty of collection and are wholly independent of and in addition to
other rights and remedies of the Lenders and the Agent and are not contingent
upon the pursuit by the Lenders and the Agent of any such rights and remedies,
such pursuit being hereby waived by the Guarantors.
8.3 Waivers and Other Agreements. Each Guarantor hereby unconditionally
(a) waives any requirement that the Lenders or the Agent, upon the occurrence of
an Event of Default first make demand upon, or seek to enforce remedies against
the Company before demanding payment under or seeking to enforce the obligations
of the Guarantors hereunder, (b) covenants that the obligations of the
Guarantors hereunder will not be discharged except by complete performance of
all obligations of the Company contained in the Loan Documents, (c) agrees that
the obligations of the Guarantors hereunder shall remain in full force and
effect without regard to, and shall not be affected or impaired, without
limitation, by any invalidity, irregularity or unenforceability in whole or in
part of this Agreement or the Notes, or any limitation on the liability of the
Company thereunder, or any limitation on the method or terms of payment
thereunder which may or hereafter be caused or imposed in any manner whatsoever
(including, without limitation, usury laws), (d) waives diligence, presentment
and protest with respect to, and any notice of default or dishonor in the
payment of any amount at any time payable by the Company under or in connection
with the Loan Documents, and further waives any requirement of notice of
acceptance of, or other formality relating to, the obligations of the Guarantors
hereunder and (e) agrees that the Guaranteed Obligations shall include any
amounts paid by the Company to the Lenders or the Agent which may be required to
be returned to the Company or to its representative or to a trustee, custodian
or receiver for the Company, and this Guaranty shall continue to be effective,
or be reinstated, as the case may be, with respect to any amounts which may be
required to be so returned.
8.4 Obligations Absolute. The obligations, covenants, agreements and
duties of the Guarantors under this Agreement shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of the Guarantors: (a) an assignment or transfer, in whole or in part,
of the Advances made to the Company or of this Agreement or any Note although
made without notice to or consent of the Guarantors, or (b) any waiver by any
Lender or the Agent or by any other person, of the performance or observance by
the Company of any of the agreements, covenants, terms or conditions contained
in this Agreement or in the other Loan Documents, or (c) any indulgence in or
the extension of the time for payment by the Company of any amounts payable
under or in connection with this Agreement or any other Loan Document, or of the
time for performance by the Company of any other obligations under or arising
out of this Agreement or any other Loan Document, or the extension or renewal
thereof, or (d) the modification, amendment or waiver (whether material or
otherwise) of any duty, agreement or obligation of the Company set forth in this
Agreement or any other Loan Document (the modification, amendment or waiver from
time to time of this Agreement and the other Loan Documents being expressly
authorized without further notice to or consent of the Guarantors), or (e) the
voluntary or involuntary liquidation, sale or other disposition of all or
substantially all of the assets of the Company or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting the Company
or any of its assets, or (f) the merger or consolidation of the Company or the
Guarantors with any other person, or (g) the release of discharge of the Company
or the Guarantors from the performance or observance of any agreement, covenant,
term or condition contained in this Agreement or any other Loan Document, by
operation of law, or (h) any other cause whether similar or dissimilar to the
foregoing which would release, affect or impair the obligations, covenants,
agreements or duties of the Guarantors hereunder. The Guaranty pursuant to this
Article VIII shall be released, subject to reinstatement under Section 8.3(e),
when all Guaranteed
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Obligations have been irrevocably paid in immediately available funds and all
Commitments, Letters of Credit and Hedging Contracts have expired or been
terminated.
8.5 No Investigation by Lenders or Agent. Each Guarantor hereby waives
unconditionally any obligation which, in the absence of such provision, the
Lenders or the Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense, each
Guarantor has requested that the Lenders and the Agent not undertake such
investigation. Each Guarantor hereby expressly confirms that the obligations of
such Guarantor hereunder shall remain in full force and effect without regard to
compliance or noncompliance with any such law and irrespective of any
investigation or knowledge of any Lender or the Agent of any such law.
8.6 Indemnity. As a separate, additional and continuing obligation,
each Guarantor unconditionally and irrevocably undertakes and agrees with the
Lenders and the Agent that, should the Guaranteed Obligations not be recoverable
from the Guarantors under Section 8.1 for any reason whatsoever (including,
without limitation, by reason of any provision of any Loan Document being or
becoming void, unenforceable, or otherwise invalid under any applicable law)
then, notwithstanding any knowledge thereof by any Lender or the Agent at any
time, each Guarantor as sole, original and independent obligor, upon demand by
the Agent, will make payment to the Agent for the account of the Lenders and the
Agent of the Guaranteed Obligations by way of a full indemnity in such currency
and otherwise in such manner as is provided in this Agreement and the Notes.
8.7 Subordination, Subrogation, Etc. Each Guarantor agrees that any
present or future indebtedness, obligations or liabilities of the Company to any
Guarantor shall be fully subordinate and junior in right and priority of payment
to any present or future indebtedness, obligations or liabilities of the Company
to the Lenders and the Agent. Each Guarantor waives any right of subrogation to
the rights of any Lender or the Agent against the Company or any other person
obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which any Guarantor may make pursuant to this Agreement and the Notes, and any
right of recourse to security for the debts and obligations of the Company,
unless and until all Guaranteed Obligations shall have been paid in full.
8.8 Waiver. To the extent that it lawfully may, each Guarantor agrees
that it will not at any time insist upon or plead, or in any manner whatsoever
claim or take any benefit or advantage of any applicable present or future stay,
extension or moratorium law, which may affect observance or performance of the
provisions of the Loan Documents; nor will it claim, take or insist upon any
benefit or advantage of any present or future law providing for the evaluation
or appraisal of any security for its obligations hereunder or the Company under
the Loan Documents prior to any sale or sales thereof which may be made under or
by virtue of any instrument governing the same; nor will it, after any such sale
or sales claim or exercise any right, under any applicable law, to redeem any
portion of such security so sold.
ARTICLE 9
MISCELLANEOUS
9.1 Amendments, Etc.
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(a) No amendment, modification, termination or waiver of any provision
of any Loan Document nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Company and
Required Lenders and, to the extent any rights or duties of the Agent may be
affected thereby, the Agent, provided, however, that no such amendment,
modification, termination, waiver or consent shall, without the consent of the
Agent and all of the Lenders, (i) authorize or permit the extension of time for,
or any reduction of the amount of, any payment of the principal of, or interest
on, the Notes or any Letter of Credit reimbursement obligation, or any fees or
other amount payable hereunder, (ii) amend, extend or terminate the respective
Commitments of any Lender set forth on the signature pages hereof or the
definition of Required Lenders, or (iii) provide for the discharge of any
material Guarantor or release all or substantially all of the collateral subject
to the Security Documents.
(b) Any such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Lender that is
in default of any of its obligations to fund any amount due under this Agreement
shall be entitled to vote (whether to consent or to withhold its consent) with
respect to any amendment, modification, termination or waiver of any provision
of this Agreement or any departure therefrom or any direction from the Lenders
to the Agent, and, for purposes of determining the Required Lenders at any time
when any Lender is in default under this Agreement, the Commitments and Advances
of such defaulting Lenders shall be disregarded.
9.2 Notices.
(a) Except as otherwise provided in Section 9.2(c) hereof, all notices
and other communications hereunder shall be in writing and shall be delivered or
sent to the Company, Guarantors, the Agent and the Lenders at the respective
addresses for notices set forth on the signatures pages hereof, or to such other
address as may be designated by the Company, any Guarantor, the Agent or any
Lender by notice to the other parties hereto. All notices and other
communications shall be deemed to have been given at the time of actual delivery
thereof to such address, or, unless sooner delivered, (i) if sent by certified
or registered mail, postage prepaid, to such address, on the third day after the
date of mailing, (ii) if sent by telex, upon receipt of the appropriate
answerback, or (iii) if sent by facsimile transmission, upon confirmation of
receipt by telephone at the number specified for confirmation, provided,
however, that notices to the Agent shall not be effective until received.
(b) Notices by the Company to the Agent with respect to terminations or
reductions of the Commitments pursuant to Section 2.2, requests for Advances
pursuant to Section 2.4, requests for continuations or conversions of Loans
pursuant to Section 2.7 and notices of prepayment pursuant to Section 3.1 shall
be irrevocable and binding on the Company.
(c) Any notice to be given by the Company to the Agent pursuant to
Sections 2.4, 2.7 or 3.1 and any notice to be given by the Agent or any Lender
hereunder, may be given by telephone, and all such notices given by the Company
must be immediately confirmed in writing in the manner provided in Section
9.2(a). Any such notice given by telephone shall be deemed effective upon
receipt thereof by the party to whom such notice is to be given. The Company and
the Guarantors shall indemnify and hold harmless the Lenders and the Agent from
any and all losses, damages, liabilities and claims arising from their good
faith reliance on any such telephone notice.
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(d) No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Lender, nor any delay or failure on the part of the
Agent or any Lender in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Lender's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Lender under this Agreement, the Notes or any
Security Document is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy granted thereunder or now or hereafter existing under any applicable
law. Every right and remedy granted by this Agreement, the Notes or any Security
Document or by applicable law to the Agent or any Lender may be exercised from
time to time and as often as may be deemed expedient by the Agent or any Lender
and, unless contrary to the express provisions of this Agreement, the Notes or
any Security Document, irrespective of the occurrence or continuance of any
Default or Event of Default.
9.3 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Company or any
Guarantor made herein or in any Security Document or in any certificate, report,
financial statement or other document furnished by or on behalf of the Company
or any Guarantor in connection with this Agreement shall be deemed to be
material and to have been relied upon by the Lenders, notwithstanding any
investigation heretofore or hereafter made by any Lender or on such Lender's
behalf, and those covenants and agreements of the Company set forth in Section
3.7, 3.9 and 9.5 hereof shall survive the repayment in full of the Advances and
the termination of the Commitments.
9.4 Expenses; Indemnification.
(a) The Company agrees to pay, or reimburse the Agent for the payment
of, on demand, (i) the reasonable fees and expenses of counsel to the Agent,
including without limitation the fees and expenses of Xxxxxxxxx Xxxxxx PLLC, in
connection with the preparation, execution, delivery and administration of this
Agreement, the Notes, the Security Documents and in connection with advising the
Agent as to its rights and responsibilities with respect thereto, and in
connection with any amendments, waivers or consents in connection therewith, and
(ii) all stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing or recording of this Agreement,
Notes, the Security Documents (or the verification of filing, recording,
perfection or priority thereof) or the consummation of the transactions
contemplated hereby, and any and all liabilities with respect to or resulting
from any delay in paying or omitting to pay such taxes or fees, and (iii) all
reasonable costs and expenses of the Agent and the Lenders (including reasonable
fees and expenses of counsel and whether incurred through negotiations, legal
proceedings or otherwise)) in connection with any Default or Event of Default or
the enforcement of, or the exercise or preservation of any rights under, any
Loan Document or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement and (iv) all reasonable costs
and expenses of the Agent and the Lenders (including reasonable fees and
expenses of counsel) in connection with any action or proceeding relating to a
court order, injunction or other process or decree restraining or seeking to
restrain the Agent from paying any amount under, or otherwise relating in any
way to, any Letter of Credit and any and all costs and expenses which any of
them may incur relative to any payment under any Letter of Credit.
(b) The Company hereby indemnifies and agrees to hold harmless the
Lenders and the Agent, and their respective officers, directors, employees and
agents, harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever which the
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Lenders or the Agent or any such person may incur or which may be claimed
against any of them by reason of or in connection with any Letter of Credit, and
neither any Lender nor the Agent or any of their respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may be
made of any Letter of Credit or for any acts or omissions of any beneficiary in
connection therewith; (ii) the validity, sufficiency or genuineness of documents
or of any endorsement thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of any Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; (iv) any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Company shall not be required to indemnify the
Lenders and the Agent and such other persons, and the Lenders shall be liable to
the Company to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Agent's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, or (B) the Agent's payment by the Agent to the
beneficiary under any Letter of Credit against presentation of documents which
do not comply with the terms of the Letter of Credit to the extent, but only to
the extent, that such payment constitutes gross negligence of willful misconduct
of the Agent. It is understood that in making any payment under a Letter of
Credit the Agent will rely on documents presented to it under such Letter of
Credit as to any and all matters set forth therein without further investigation
and regardless of any notice or information to the contrary, and such reliance
and payment against documents presented under a Letter of Credit substantially
complying with the terms thereof shall not be deemed gross negligence or willful
misconduct of the Agent in connection with such payment. It is further
acknowledged and agreed that the Company may have rights against the beneficiary
or others in connection with any Letter of Credit with respect to which the
Lenders are alleged to be liable and it shall be a precondition of the assertion
of any liability of the Lenders under this Section that the Company shall first
have materially exhausted all remedies in respect of the alleged loss against
such beneficiary and any other parties obligated or liable in connection with
such Letter of Credit and any related transactions.
(c) The Company hereby indemnifies and agrees to hold harmless the
Lenders and the Agent, and their respective officers, directors, employees and
agents, from and against any and all claims, damages, losses, liabilities, costs
or expenses of any kind or nature whatsoever (including reasonable attorneys
fees and disbursements incurred in connection with any investigative,
administrative or judicial proceeding whether or not such person shall be
designated as a party thereto) which the Lenders or the Agent or any such person
may incur at any time or which may be claimed against any of them at any time by
reason of or in connection with entering into the Loan Documents or the
transactions contemplated thereby, including without limitation those arising
under Environmental Laws, any transaction financed or to be financed in whole or
in part, directly or indirectly, with any proceeds of any Advance or any other
actions of the Company or any Guarantor; provided, however, that the Company
shall not be required to indemnify any such Lender and the Agent or such other
person, to the extent, but only to the extent, that such claim, damage, loss,
liability, cost or expense is attributable to the gross negligence or willful
misconduct of such Lender or the Agent, as the case may be.
9.5 Successors and Assigns.
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(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, provided that
the Company may not, without the prior consent of the Lenders, assign its rights
or obligations hereunder or under the Notes or any Security Document and the
Lenders shall not be obligated to make any Advance hereunder to any entity other
than the Company.
(b) Any Lender may sell to any financial institution or institutions,
and such financial institution or institutions may further sell, a participation
interest (undivided or divided) in, the Advances and such Lender's rights and
benefits under this Agreement, the Notes and the Security Documents, and to the
extent of that participation interest such participant or participants shall
have the same rights and benefits against the Company under Section 3.7, 3.9 and
6.2(c) as it or they would have had if such participant or participants were the
Lender making the Advances to the Company hereunder, provided, however, that (i)
such Lender's obligations under this Agreement shall remain unmodified and fully
effective and enforceable against such Lender, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of its Notes for all
purposes of this Agreement, (iv) the Company, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and (v) such Lender
shall not grant to its participant any rights to consent or withhold consent to
any action taken by such Lender or the Agent under this Agreement other than
action requiring the consent of all of the Lenders hereunder.
(c) The Agent from time to time in its sole discretion may appoint
agents for the purpose of servicing and administering this Agreement and the
transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under this Agreement, the Notes, any Security
Documents or otherwise. In furtherance of such agency, the Agent may from time
to time direct that the Company and the Guarantors provide notices, reports and
other documents contemplated by this Agreement (or duplicates thereof) to such
agent. The Company and each Guarantor hereby consents to the appointment of such
agent and agrees to provide all such notices, reports and other documents and to
otherwise deal with such agent acting on behalf of the Agent in the same manner
as would be required if dealing with the Agent itself.
(d) Each Lender may, with the prior consent of the Company (which shall
not be unreasonably withheld and may not be withheld if an Event of Default has
occurred and is continuing) and the Agent, assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations, (ii) except in the case of an assignment of all of a
Lender's rights and obligations under this Agreement, (A) the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, and in
integral multiples of $1,000,000 thereafter, or such lesser amount as the
Company and the Agent may consent to and (B) after giving effect to each such
assignment, the amount of the Commitment of the assigning Lender shall in no
event be less than $5,000,000, (iii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit F hereto (an
"Assignment and Acceptance"), together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000, and (iv) any Lender
may without the consent of the Company or the Agent, and without paying any fee,
assign to any Affiliate of such Lender that is a bank or financial institution
all of its rights and obligations under this Agreement. Upon such execution,
delivery, acceptance and
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recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(e) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or the performance or observance by the Company of any of its obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.6 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(f) The Agent shall maintain at its address designated on the signature
pages hereof a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, the Agent and the Lenders may treat each person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Company, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note or Notes a new Note to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate
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principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit F hereto.
(h) Additional lenders may also become Lenders hereunder, with the
prior written consent of the Company and the Agent, by executing an Assumption
Agreement substantially in the form of Exhibit G. Any Lender, subject to the
prior written approval of the Agent and the Company and subject to being paid in
full or all outstanding liabilities owing to such Lender, may be terminated as a
Lender hereunder and upon such termination the Company shall have the option to
select a bank to replace such terminating bank and to assume the rights and
obligations of such terminated Lender hereunder, provided that such replacement
bank is acceptable to the Agent and executes an Assumption Agreement
substantially in the form of Exhibit G hereto. Upon any Lender being added
hereto or terminated, a new schedule will be distributed by the Agent to all
Lenders and the Company showing the Commitment amount and the percentage of
total commitments of each Lender.
(i) The Lenders may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.6, disclose
to the assignee or participant or proposed assignee or participant any
information relating to the Company.
(j) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in, or assign, all or any
portion of its rights under this Agreement (including, without limitation, the
Loans owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Lender in accordance with Regulation A of the Board of Governors of the
Federal Reserve System; provided that such creation of a security interest or
assignment shall not release such Lender from its obligations under this
Agreement.
9.6 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
9.7 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State
of Michigan applicable to contracts made and to be performed entirely within
such State and without giving effect to choice of law principles of such
State. Each of the Company and the Guarantors and the Lenders further
agrees that any legal or equitable action or proceeding with respect to
any Loan Document or the transactions contemplated hereby shall be brought
in any court of the State of Michigan, or in any court of the United States of
America sitting in Michigan, and the Company and each Guarantor and the
Lenders hereby submits to and accepts generally and unconditionally the
jurisdiction of those courts with respect to its person and property, and, in
the case of the Company and each Guarantor irrevocably appoints Xxxxxx
Xxxxx, V.P. Finance, whose address in Michigan is 24331 Xxxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, as its agent for service of process and irrevocably consents
to the service of process in connection with any such action or proceeding by
personal delivery to such agent or to the Company or such Guarantor, as the
case may be, or by the mailing thereof by registered or certified mail,
postage prepaid to the Company or such Guarantor at its address for notices
pursuant to Section 9.2. The Company shall at all times maintain such an
agent in Michigan for such purpose and shall notify the Lenders and the Agent
of such agent's address in Michigan within ten days of any change of
address. Nothing in this paragraph shall affect the right of the Lenders and
the Agent to serve process in any other manner permitted by law or limit the
right of the Lenders or the Agent to bring any such action or proceeding
against the Company or any Guarantor or property in the courts of any other
jurisdiction. The Company and each Guarantor and the Lenders
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hereby irrevocably waives any objection to the laying of venue of any such
action or proceeding in the above described courts.
9.8 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
9.9 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
9.10 Integration and Severability. The Loan Documents embody the entire
agreement and understanding between the Company, the Guarantors and the Agent
and the Lenders, and supersede all prior agreements and understandings, relating
to the subject matter hereof. In case any one or more of the obligations of the
Company or any Guarantor under any Loan Document shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Company and the Guarantors shall not in any way
be affected or impaired thereby, and such invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or
enforceability of the obligations of the Company or any Guarantor under any Loan
Document in any other jurisdiction.
9.11 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
such condition exists.
9.12 Interest Rate Limitation. Notwithstanding any provisions of any
Loan Document, in no event shall the amount of interest paid or agreed to be
paid by the Company exceed an amount computed at the highest rate of interest
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision of any Loan Document at the time performance of
such provision shall be due, shall involve exceeding the interest rate
limitation validly prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligations to be fulfilled shall
be reduced to an amount computed at the highest rate of interest permissible
under applicable law, and if for any reason whatsoever any Lender shall ever
receive as interest an amount which would be deemed unlawful under such
applicable law such interest shall be automatically applied to the payment of
principal of the Advances outstanding hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to the Company
if such principal and all other obligations of the Company to the Lenders have
been paid in full.
9.13 Waiver of Jury Trial. The Lenders and the Agent and the Company
and the Guarantors, after consulting or having had the opportunity to consult
with counsel, knowingly, voluntarily and intentionally waive any right any of
them may have to a trial by jury in any litigation based upon or arising out of
any Loan Document or any of the transactions contemplated by any Loan Document
or any course of conduct, dealing, statements (whether oral or written) or
actions of any of them. Neither any Lender, the Agent, any Guarantor nor the
Company shall seek to consolidate, by counterclaim or otherwise, any such action
in which a jury trial has been waived with any other action in which a jury
trial cannot be or has not been waived. These provisions shall not be deemed to
have been modified in any respect or relinquished by any party hereto except by
a written instrument executed by such party.
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9.14 Complete Agreement; Amendment and Restatement. This Agreement, the
Notes, any requests for advance or Letters of Credit hereunder, the other Loan
Documents and any agreements, certificates, or other documents given to secure
the Indebtedness, contain the entire agreement of the parties hereto, and none
of the parties hereto shall be bound by anything not expressed in writing. This
Agreement constitutes an amendment and restatement of the Existing Credit
Agreement, which Existing Credit Agreement is fully superseded and amended and
restated in its entirety hereby; provided, however, that the Indebtedness
governed by the Existing Credit Agreement shall remain outstanding and in full
force and effect and, provided further, that this Agreement does not constitute
a novation of such Indebtedness.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the __ day of April, 1998, which shall be the
Effective Date of this Agreement, notwithstanding the day and year first above
written.
Address for Notices: AETNA INDUSTRIES, INC.
24331 Sherwood By: /s/ Xxxxxx X. Xxxxx
----------------------------
X.X. Xxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000 Its: Vice President, Finance
----------------------------
Attention: Vice President and Treasurer
Facsimile No.: (000) 000-0000
Facsimile
Confirmation No.: (000) 000-0000
Address for Notices: AETNA EXPORT SALES CORP.
24331 Sherwood By: /s/ Xxxxxx X. Xxxxx
X.X. Xxx 0000 ----------------------------
Xxxxxx Xxxx, Xxxxxxxx 00000 Its: Vice President, Finance
Attention: Vice President and Treasurer ----------------------------
Facsimile No.: (000) 000-0000
Facsimile
Confirmation No.: (000) 000-0000
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Address for Notices: MS ACQUISITION CORP.
----------------------------------- By: /s/Xxxxxx X. Xxxxx
---------------------------
----------------------------------- Its:Vice President, Finance
Attention: ---------------------------
-------------------------
Facsimile No.:
---------------------
Facsimile
Confirmation No.:
-----------------
Address for Notices: AETNA HOLDINGS, INC.
By:/s/Xxxxxx X. Xxxxx
------------------------
Its:Vice President, Finance
------------------------
----------------------------------
----------------------------------
Attention:
------------------------
Facsimile No.:
--------------------
Facsimile
Confirmation No.: AETNA MANUFACTURING CANADA LTD.
--------------
By:/s/Xxxxxx X. Xxxxx
Address for Notices: ------------------------
Its:Vice President, Finance
------------------------
----------------------------------
----------------------------------
Attention:
------------------------
Facsimile No.:
------------------------
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69
Facsimile
Confirmation No.:
--------------------
Address for Notices: NBD BANK, as a Lender and as Agent
000 Xxxxxxxx Xxxxxx By: /s/Xxxxxxxx X. Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 --------------------------
Attention: Michigan Banking Division Its: Vice President
------------------------
Facsimile No.: (000) 000-0000
Facsimile
Confirmation No.: (000) 000-0000
Facility A Commitment Amount during
the period from and including the Effective
Date to and including June 30, 1999: $50,000,000
Facility A Commitment Amount during
the period from and including July 1, 1999
and thereafter: $35,000,000
Facility B Commitment Amount: $5,000,000
Facility C Commitment Amount: $1,500,000
Percentage of
Total Commitments: 100%
Total Commitment Amount of all Lenders
during the period from and including the Effective
Date to and including June 30, 1999: $56,500,000
Total Commitment Amount of all Banks
during the period from and including July 1, 1999
and thereafter: $40,000,000
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