MASCOTECH, INC.,
MASCOTECH ACQUISITION, INC.,
and
THE BORROWING SUBSIDIARIES,
as Borrowers
________________________________________________
$1,300,000,000
CREDIT AGREEMENT
dated as of January 16, 1998
______________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
BANK OF AMERICA NT&SA
and
NATIONSBANK, N.A.
as Syndication Agents
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Definitions. . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . 23
1.3 Other Definitions; Rules of Construction . . . . . . . 24
ARTICLE II. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
TERMINATION OF EXISTING CREDIT AGREEMENT . . . . . . . 24
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES . . . . . . . 24
3.1 Revolving Loans . . . . . . . . . . . . . . . . . . . 24
3.2 Term Loans . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Letters of Credit. . . . . . . . . . . . . . . . . . . 25
3.4 Bid-Option Borrowings. . . . . . . . . . . . . . . . . 29
3.5 Swing Line Loans . . . . . . . . . . . . . . . . . . . 34
3.6 Alternate Currency Syndicated Loans. . . . . . . . . . 35
3.7 Notice to Banks; Funding of Loans. . . . . . . . . . . 37
3.8 The Notes. . . . . . . . . . . . . . . . . . . . . . . 40
3.9 Certain Fees . . . . . . . . . . . . . . . . . . . . . 40
3.10 Optional Termination or Reduction of Commitments . . . 41
3.11 Mandatory Termination of Commitments . . . . . . . . . 41
3.12 Borrowing Subsidiaries . . . . . . . . . . . . . 42
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC. . . . . . . . . . . 42
4.1 Scheduled Principal Payments . . . . . . . . . . . . . 42
4.2 Prepayments of Principal . . . . . . . . . . . . . . . 43
4.3 Interest Payments . . . . . . . . . . . . . . . . . . 45
4.4 Payment Procedures . . . . . . . . . . . . . . . . . . 46
4.5 Computation of Interest and Fees . . . . . . . . . . . 48
4.6 No Setoff or Deduction . . . . . . . . . . . . . . . . 48
4.7 Types for all Loans. . . . . . . . . . . . . . . . . . 48
4.8 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Loans . . . . . . . . . 49
(A) Right to Convert. . . . . . . . . . . . . . . . . 49
ii
(B) Automatic Conversion and Continuation . . . . . . 49
(C) No Conversion After Default . . . . . . . . . . . 49
(D) Conversion/Continuation Notice. . . . . . . . . . 49
4.9 Other Provisions Applicable to Alternate Currency Loans49
ARTICLE V.
CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . . 50
5.1 Impossibility; Interest Rate Inadequate or Unfair. . . 50
5.2 Illegality . . . . . . . . . . . . . . . . . . . . . . 50
5.3 Increased Cost; Yield Protection . . . . . . . . . . . 51
5.4 Substitute Loans . . . . . . . . . . . . . . . . . . . 54
5.5 Funding Losses . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 55
6.1 Corporate Existence and Power. . . . . . . . . . . . . 55
6.2 Corporate Authority; No Violations; Governmental
Filings; Etc . . . . . . . . . . . . . . . . . . . . . 55
6.3 Binding Effect . . . . . . . . . . . . . . . . . . . . 56
6.4 Litigation . . . . . . . . . . . . . . . . . . . . . . 56
6.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 56
6.6 Financial Condition. . . . . . . . . . . . . . . . . . 56
6.7 Compliance with ERISA. . . . . . . . . . . . . . . . . 56
6.8 Environmental Matters. . . . . . . . . . . . . . . . . 57
6.9 Compliance with Laws . . . . . . . . . . . . . . . . . 57
6.10 Subordinated Debt. . . . . . . . . . . . . . . . . . . 57
ARTICLE VII.
COVENANTS . . . . . . . . . . . . . . . . . . . . . . 58
7.1 Financial Statements . . . . . . . . . . . . . . . . . 58
7.2 Certificates of No Default and Compliance. . . . . . . 59
7.3 Preservation of Corporate Existence, Etc.. . . . . . . 60
7.4 Minimum Capitalization . . . . . . . . . . . . . . . . 60
7.5 Fixed Charge Coverage Ratio. . . . . . . . . . . . . . 60
7.6 Maximum Leverage Ratio . . . . . . . . . . . . . . . . 61
7.7 Subsidiary Indebtedness. . . . . . . . . . . . . . . . 62
7.8 Negative Pledge. . . . . . . . . . . . . . . . . . . . 62
7.9 Dispositions of Assets; Mergers and Consolidations . . 63
7.10 Changes in Subordinated Debt . . . . . . . . . . . . . 64
7.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . . 64
7.12 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . 64
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7.13 Compliance with Laws . . . . . . . . . . . . . . . . . 64
7.14 Interest Rate Agreements . . . . . . . . . . . . . . . 65
7.15 Restricted Payments. . . . . . . . . . . . . . . . . . 65
7.16 Guaranties and Pledges . . . . . . . . . . . . . . . . 65
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES66
8.1 Each Borrowing and Letter of Credit Issuance . . . . . 66
8.2 Initial Borrowing or Letter of Credit Issuance . . . . 67
8.3 Closing . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . 71
9.1 Events of Default. . . . . . . . . . . . . . . . . . . 71
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . 74
9.3 Set Off. . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE X.
THE AGENTS AND THE BANKS . . . . . . . . . . . . . . . 75
10.1 Appointment and Authorization. . . . . . . . . . . . . 75
10.2 Administrative Agent and Affiliates. . . . . . . . . . 75
10.3 Scope of Agent's Duties. . . . . . . . . . . . . . . . 75
10.4 Reliance by Administrative Agent . . . . . . . . . . . 75
10.5 Default. . . . . . . . . . . . . . . . . . . . . . . . 76
10.6 Liability of Administrative Agent. . . . . . . . . . . 76
10.7 Nonreliance on Administrative Agent and Other Banks. . 76
10.8 Indemnification. . . . . . . . . . . . . . . . . . . . 77
10.9 Resignation of Administrative Agent. . . . . . . . . . 77
10.10 Sharing of Payments. . . . . . . . . . . . . . . . . . 78
10.11 Withholding Tax Exemption. . . . . . . . . . . . . . . 78
10.12 The Syndication Agents and Arrangers . . . . . . . . . 79
ARTICLE XI.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . 79
11.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . 79
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . 80
11.3 No Waiver By Conduct; Remedies Cumulative. . . . . . . 81
11.4 Reliance on and Survival of Various Provisions . . . . 81
iv
11.5 Expenses and Indemnification . . . . . . . . . . . . . 81
11.6 Successors and Assigns . . . . . . . . . . . . . . . . 83
11.7 Confidentiality. . . . . . . . . . . . . . . . . . . . 86
11.8 Counterparts; Effectiveness of Telecopied Signatures . 87
11.9 Table of Contents and Headings . . . . . . . . . . . . 87
11.10 Construction of Certain Provisions . . . . . . . . . . 87
11.11 Independence of Covenants. . . . . . . . . . . . . . . 87
11.12 Interest Rate Limitation . . . . . . . . . . . . . . . 87
11.13 Substitution of Banks. . . . . . . . . . . . . . . . . 88
11.14 Governing Law. . . . . . . . . . . . . . . . . . . . . 88
11.15 Integration and Severability . . . . . . . . . . . . . 88
11.16 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . 89
11.17 Alternate Currency Addenda Binding on Each Bank;
Provisions Regarding Alternate Currency Agents . . . . 89
11.18 Unification of Certain Currencies. . . . . . . . . . . 89
v
SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1 - Applicable Margin Chart
Schedule 2 - Certain Industrial Revenue Bonds (see Section 9.1(e) of
the Credit Agreement)
EXHIBITS
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - Form of Alternate Currency Syndicated Note
Exhibit B-1 - Form of Bid-Option Note
Exhibit B-2 - Form of Swing Line Note
Exhibit C-1 - Notice of Syndicated Borrowing
Exhibit C-2 - Notice of Swing Line Borrowing
Exhibit D - Request for Letter of Credit Issuance
Exhibit E - Bid-Option Quote Request
Exhibit F - Invitation for Bid-Option Quotes
Exhibit G - Bid-Option Quote
Exhibit H - Notice of Disbursement of Alternate Currency Loan
Exhibit I - Notice of Receipt of Alternate Currency Loan Payment
Exhibit J - Securities Purchase Agreement
Exhibit K - Assignment and Acceptance
Exhibit L - Notice of Substitution of Bank(s)
vi
Exhibit M - Opinion of Counsel for the Borrowers
Exhibit N - Opinion of Special New York Counsel for the Borrowers
Exhibit O - Terms of Subordination
Exhibit P-1 - Form of Alternate Currency Addendum for Pounds Sterling
Exhibit P-2 - Form of Alternate Currency Addendum for Deutsche Marks
Exhibit P-3 - Form of Alternate Currency Addendum for Italian Lire
Exhibit Q - Form of Guaranty
Exhibit R - Form of Pledge Agreement
Exhibit S - Form of Assumption Letter
Exhibit T - Conversion/Continuation Notice
vii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 16, 1998 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), is by
and among MASCOTECH, INC., a Delaware corporation (together with its successors,
"MascoTech"), MASCOTECH ACQUISITION, INC., a Delaware corporation (together with
its successors, "Acquisition"), any Borrowing Subsidiaries which are now or may
hereafter become a party hereto from time to time (each individually a
"Borrowing Subsidiary" and collectively, the "Borrowing Subsidiaries")
(MascoTech, Acquisition and each Borrowing Subsidiary referred to individually
as a "Borrower" and collectively as the "Borrowers"), the Banks party hereto
from time to time (collectively, the "Banks" and individually, a "Bank"), The
First National Bank of Chicago (the "Administrative Agent"), Bank of America
NT&SA and NationsBank, N.A. (the "Syndication Agents", and collectively with the
Administrative Agent, the "Agents"), and First Chicago Capital Markets, Inc.,
BancAmerica Xxxxxxxxx Xxxxxxxx, Inc., and NationsBanc Xxxxxxxxxx Securities,
Inc. (each individually an "Arranger" and collectively, the "Arrangers").
RECITALS:
A. MascoTech, the Existing Banks (as hereinafter defined) and the
Existing Agent (as hereinafter defined) have entered into the Existing Credit
Agreement (as hereinafter defined), pursuant to which the Existing Banks
provided to MascoTech a revolving credit facility in the maximum aggregate
principal amount of $575,000,000 (the "Existing Bank Facility").
B. The Borrowers now desire to replace the Existing Bank Facility under
the Existing Credit Agreement with a new facility evidenced by this Agreement
which shall include a revolving credit facility in an aggregate principal amount
the Dollar Equivalent (as hereinafter defined) of which does not exceed
$800,000,000 and a term loan facility in an aggregate principal amount the
Dollar Equivalent of which does not exceed $500,000,000 to provide funds (i) to
refinance the Existing Bank Facility, (ii) to finance the purchase of capital
stock of TriMas Corporation, a Delaware corporation (the "Target"), acquired
pursuant to a tender offer by Acquisition announced December 11, 1997 (the
"Tender Offer"), (iii) to finance the merger of the Target with Acquisition (the
"Merger") and (iv) to refinance the current credit facilities of the Target.
C. The Banks are willing to provide such a replacement credit facility
on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, and in any
certificate, report, other agreement or other document made or delivered
pursuant to this Agreement, the following terms shall have the following
respective meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined unless the context otherwise requires):
"Absolute Rate Dollar Bid-Option Borrowing" means any Borrowing consisting
of an Absolute Rate Dollar Bid-Option Loan.
"Absolute Rate Dollar Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Absolute Rate.
"Acquired Debt" means, with respect to any Person who becomes a Subsidiary
after the Closing Date, Debt of such Person which was outstanding before such
Person became a Subsidiary and which was not created in contemplation of such
Person becoming a Subsidiary.
"Additional Bank" shall have the meaning ascribed thereto in Section
11.13(b).
"Adjusted Net Worth" means, as of any date, the sum of (a) Net Worth, plus
(b) the amount of all Subordinated Debt which by its terms matures at least
thirty days after the then existing Scheduled Expiration Date, plus (c), at any
time prior to March 31, 2002, the Available Masco Corporation Funding
Commitment, plus (d) (without duplication) the principal amount of any trust
convertible debt securities or similar securities issued by MascoTech.
"Affiliate", when used with respect to any Person, means 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.
"Alternate Currency" means (i) so long as such currencies remain Eligible
Currencies, Pounds Sterling, Deutsche Marks and Italian Lire, (ii) any other
Eligible Currency which MascoTech requests the Administrative Agent to include
as an Alternate Currency hereunder and which is acceptable to one-hundred
percent (100%) of the applicable Alternate Currency Banks and with respect to
which an Alternate Currency Addendum has been executed among MascoTech, one or
more Alternate Currency Banks and an Alternate Currency Agent in connection
therewith; and, (iii) in the case of Alternate Currency Bid-Option Loans, any
currency acceptable to the applicable Bank.
2
"Alternate Currency Addendum" means an addendum (i) substantially in the
form of Exhibit P-1, P-2 or P-3 (ii) or, in the case of any addendum relating to
a currency other than Pounds Sterling, Deutsche Marks and Italian Lire, in such
form as shall be approved by the Administrative Agent, in each case entered into
among MascoTech, one or more Alternate Currency Banks and an Alternate Currency
Agent.
"Alternate Currency Agent" means one or more entities (which may be the
Administrative Agent or its local affiliates), satisfactory to the
Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"Alternate Currency Bank" means any Bank (or any Affiliate, branch or
agency thereof) party to an Alternate Currency Addendum. If any agency or
Affiliate of a Bank shall be a party to an Alternate Currency Addendum, such
agency or Affiliate shall, to the extent of any commitment extended and any
Loans made by it, have all the rights of such Bank hereunder; provided, however,
that such Bank shall to the exclusion of such agency or Affiliate, continue to
have all the voting rights vested in it by the terms hereof.
"Alternate Currency Bid-Option Borrowing" means any Borrowing consisting
of an Alternate Currency Bid-Option Loan.
"Alternate Currency Bid-Option Loan" means a Bid-Option Loan made in an
Alternate Currency.
"Alternate Currency Bid-Option Percentage" means, with respect to any Bank
and any Alternate Currency Bid-Option Borrowing, the percentage of the aggregate
outstanding principal amount of all the Alternate Currency Bid-Option Loans
comprising such Borrowing represented by the outstanding principal amount of the
Alternate Currency Bid-Option Loan made by such Bank as part of such Borrowing.
"Alternate Currency Borrowing" means any Borrowing consisting of a Loan
made in an Alternate Currency.
"Alternate Currency Commitment" means, for each Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Syndicated Loans not exceeding the Dollar Equivalent set
forth in the applicable Alternate Currency Addendum, as such amount may be
modified from time to time pursuant to the terms of this Agreement and the
applicable Alternate Currency Addendum.
"Alternate Currency Loan" means an Alternate Currency Bid-Option Loan or
an Alternate Currency Syndicated Loan.
"Alternate Currency Share" means, with respect to any Alternate Currency
Bank for any particular Alternate Currency, the percentage obtained by dividing
(A) such Alternate Currency Bank's
3
Alternate Currency Commitment at such time as set forth in the applicable
Alternate Currency Addendum by (B) the aggregate of the Alternate Currency
Commitments at such time of all Alternate Currency Banks with respect to such
Alternate Currency as set forth in the applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Interest Period" means, with respect to any
Alternate Currency Syndicated Loan, the Interest Period as set forth on the
applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Loan" means any Loan denominated in an
Alternate Currency made by one or more of the Alternate Currency Banks to a
Borrower pursuant to Section 3.6 and an Alternate Currency Addendum.
"Alternate Currency Syndicated Note" means a promissory note of any
Borrower, substantially in the form of Exhibit A-3 attached hereto, evidencing
the obligation of such Borrower to repay Alternate Currency Syndicated Loans, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Applicable Facility Fee Rate" means, with respect to any Application
Period for Facility Fees, the percentage found in the applicable chart set forth
on Schedule 1 attached hereto by reading down the column of Leverage Ratio
ranges to the row for the range into which the Leverage Ratio as of the relevant
Determination Date falls. For the period from the Closing Date to but excluding
the date that occurs three months after the Closing Date, the Applicable
Facility Fee Rate shall be 0.25% per annum, and for the period from and
including the date that occurs three months after the Closing Date to but
excluding the date that occurs six months after the Closing Date, the Applicable
Facility Fee Rate shall not be less than 0.225% per annum.
"Applicable Lending Office" means, as to any Bank, its Domestic Lending
Office, Eurodollar Lending Office or any other office of such Bank or of any
Affiliate of such Bank selected and notified to the Borrowers and the
Administrative Agent as the applicable lending office for a particular Loan or
type of Loan by such Bank; provided that the Borrowers shall not be responsible
for the increase, if any, in costs hereunder that (a) are due to any Bank
changing its Applicable Lending Office with respect to a particular Loan or type
of Loan and (b) arise because of circumstances existing at the time of such
change.
"Applicable Margin" means, with respect to any Application Period for
Eurodollar Rate Syndicated Loans, Facility Fees and Letters of Credit, the
percentage found in the applicable chart set forth on Schedule 1 attached hereto
by reading down the column of Leverage Ratio ranges to the row for the range
into which the Leverage Ratio as of the relevant Determination Date falls. For
the purpose of this definition of the term "Applicable Margin", the Leverage
Ratio shall be calculated as prescribed in Section 7.6. For purposes of this
definition of the term "Applicable Margin", (a) the term "Application Period"
means a period commencing with and including the 60th day after the end of the
most recently completed fiscal quarter of the Borrowers to and including the
59th day after the end of the next following fiscal quarter of the Borrowers,
(b) the term "Determination Date" means, with
4
respect to any Application Period, the last day of the Determination Period for
such Application Period, (c) the term "Determination Period" means, with respect
to any Application Period, the period of four consecutive fiscal quarters of the
Borrowers ending with the fiscal quarter ending immediately preceding such
Application Period, and (d) any change in the Applicable Margin during any
Interest Period for any Syndicated Loan or applicable to any Letter of Credit
shall be effective as to such Syndicated Loan or such Letter of Credit, as the
case may be, upon such change in the Applicable Margin taking effect pursuant to
this definition. For the period from the Closing Date to but excluding the date
that occurs three months after the Closing Date, the Applicable Margin shall be
0.875% per annum and for the period from and including the date that occurs
three months after the Closing Date to but excluding the date that occurs six
months after the Closing Date, the Applicable Margin shall not be less than
0.775% per annum.
"Application Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars shall mean the equivalent amount of such currency with respect to
such amount of Dollars calculated on the basis of the arithmetical mean of the
buy and sell spot rates of exchange of the Administrative Agent for such other
Alternate Currency at 11:00 a.m. (London time) two Business Days prior to the
date of determination for purposes of this Agreement (i) if such currency is
Pounds Sterling, Deutsche Marks or Italian Lire, rounded up to the nearest
100,000 of such currency and (ii) if such currency is any other Alternate
Currency, rounded up to the nearest amount of such currency as determined by the
Administrative Agent from time to time.
"Arrangers" means First Chicago Capital Markets, Inc., BancAmerica
Xxxxxxxxx Xxxxxxxx, Inc. and NationsBanc Xxxxxxxxxx Securities, Inc.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person);
provided that (i) a sale, lease, conveyance, disposition or other transfer
between or among MascoTech and any of its Consolidated Subsidiaries shall not
constitute an Asset Sale and (ii) any sale or other disposition of any Cash or
Cash Equivalents or any Marketable Securities shall not be construed as an Asset
Sale; and provided further that a sale of "margin stock" (as defined in
Regulation U of the Board of Governors of the Federal Reserve System), to the
extent that the value of such margin stock would exceed 25% of the value of the
assets of MascoTech and its Subsidiaries, shall not constitute an Asset Sale.
"Assignment and Acceptance" is defined in Section 11.6(d).
"Assumption Letter" means a letter agreement of a Subsidiary of MascoTech
addressed to the Banks substantially in the form of Exhibit S hereto pursuant to
which such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be
bound by the terms hereof.
5
"Authorized Officer" means any of the chief executive officer, chief
financial officer, treasurer, controller, secretary, assistant treasurer or vice
president corporate counsel of MascoTech, acting singly.
"Available Masco Corporation Funding Commitment" means, as of any date,
any unused and available amount of the "Commitment" of Masco Corporation under,
and as defined in, the Securities Purchase Agreement, provided that such amount
for purposes of this definition shall not exceed $200,000,000, provided that
such "Commitment" relates only to the purchase by Masco Corporation of equity
securities of MascoTech or of Subordinated Debt of MascoTech.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA that is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by a Borrower or any ERISA
Affiliate of a Borrower.
"Bid-Option Absolute Rate" means, with respect to any Absolute Rate Dollar
Bid-Option Loan or Alternate Currency Bid-Option Loan, the Bid-Option Absolute
Rate, as defined in Section 3.4(d)(ii)(D), that is offered for such Loan.
"Bid-Option Auction" means a solicitation of Bid-Option Quotes setting
forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins, as the
case may be, pursuant to Section 3.4(b).
"Bid-Option Eurodollar Rate" means the sum of (a) the Bid-Option
Eurodollar Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" means, with respect to any Eurodollar
Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as defined in
Section 3.4(d)(ii)(E), that is offered for such Loan.
"Bid-Option Interest Period" means (a) with respect to each Eurodollar
Rate Bid-Option Borrowing, the Eurodollar Rate Interest Period applicable
thereto, and (b) with respect to each Absolute Rate Dollar Bid-Option Borrowing
and Alternate Currency Bid-Option Borrowing, the period commencing on the date
of such Borrowing and ending on the date elected by the applicable Borrower in
the applicable Notice of Borrowing, which date shall be not less than 15 and not
more than 360 days after the date of such Borrowing; provided that:
(i) any such Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day; and
(ii) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
6
"Bid-Option Loan" means a Loan which is made by a Bank pursuant to a Bid-
Option Auction.
"Bid-Option Note" means a promissory note of a Borrower in substantially
the form of Exhibit B-1 hereto evidencing the obligation of such Borrower to
repay Bid-Option Loans, as amended or modified from time to time and together
with any promissory note or notes issued in exchange or replacement therefor.
"Bid-Option Quote" means an offer by a Bank to make a Bid-Option Loan in
accordance with Section 3.4(d).
"Bid-Option Quote Request" shall have the meaning ascribed thereto in
Section 3.4(b).
"Borrower" means, as applicable, MascoTech, Acquisition and their
respective successors and assigns and any Borrowing Subsidiary.
"Borrowing" means a borrowing hereunder consisting of Loans made to a
Borrower on a single date, of a single Type and currency and for a single
Interest Period.
"Borrowing Subsidiary" means any Borrowing Subsidiary duly designated by
MascoTech pursuant to Section 3.12 hereof to request Loans hereunder, provided
at least 95% of the Capital Stock of such Subsidiary is owned directly or
indirectly by MascoTech and such Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 3.12 and
such other documents, instruments and agreements as may be required pursuant to
the terms of this Agreement.
"Business Day" means any day on which commercial banks are open for
domestic and international business (including dealings in Dollar deposits) in
Xxx Xxxx Xxxx xxx Xxxxxxx, Xxxxxxxx and, with respect to Eurodollar Rate Loans
and the related Interest Periods, in London, and with respect only to Alternate
Currency Loans and the related Interest Periods, on which dealings in deposits
in the relevant Alternate Currency are carried out in the relevant interbank
market and in the principal financial center of the country issuing the relevant
Alternate Currency.
"Capital Expenditures" means, for any period, the aggregate amount of
capital expenditures of MascoTech and its Consolidated Subsidiaries during such
period, determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Capital Lease" of any Person means any lease which, in accordance with
generally accepted accounting principles, is required to be capitalized on the
books of such Person.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock and (iii) in the case of a partnership, partnership interests
(whether general or limited).
7
"Cash and Cash Equivalents" means (a) all cash of MascoTech and its
Consolidated Subsidiaries on hand or on deposit, plus (b) cash equivalents as
determined in accordance with generally accepted accounting principles, plus (c)
all investments of MascoTech and its Consolidated Subsidiaries of the following
generally accepted accounting principles: (i) commercial paper of any United
States issuer having a rating of A1 or better by Xxxxx'x Investors Service, Inc.
or P1 or better by Standard & Poor's Ratings Group, (ii) direct obligations of,
and obligations fully guaranteed by, the United States of America, and (iii)
certificates of deposit of (A) any commercial bank which is a member of the
Federal Reserve System and which has capital, surplus and undivided profits (as
shown on its most recently published statement of condition) aggregating not
less than $100,000,000 or (B) any Bank, provided that each of the foregoing
investments has a maturity date not later than 180 days after the date of
acquisition thereof by MascoTech or any of its Consolidated Subsidiaries.
"Closing Date" means the first day on which the initial Borrowing under
this Agreement shall have occurred.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means, with respect to each Bank, its Revolving Credit
Commitment and its Term Loan Commitment.
"Consolidated" or "consolidated" refers to the consolidation of the
accounts of a Person and its Subsidiaries in accordance with generally accepted
accounting principles.
"Consolidated Subsidiary" of any corporation means any Subsidiary which
would be consolidated on the consolidated balance sheet of such corporation in
accordance with generally accepted accounting principles.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by The First National Bank of Chicago from time to
time, changing when and as said corporate base rate changes.
"Current Assets" means, at any time, the current assets of MascoTech and
its Consolidated Subsidiaries, determined as to amount and classification on a
consolidated basis in accordance with generally accepted accounting principles.
"Debt" means (a) indebtedness for money borrowed; (b) the capitalized
portion of lease rentals under Capital Leases; (c) other indebtedness incurred
in connection with the acquisition of any real or personal property, stock, debt
or other assets (to the extent that any of the foregoing acquisition
indebtedness is represented by any notes, bonds, debentures or similar evidences
of indebtedness); and (d) obligations in respect of obligations or indebtedness
of others of the types referred to in each of the foregoing clauses (a)-(c), for
the payment of which MascoTech or any Consolidated Subsidiary is
8
directly or contingently liable, or which is secured by any property of
MascoTech or any Consolidated Subsidiary (whether or not MascoTech or any such
Consolidated Subsidiary is liable therefor); provided, however, any trust
convertible debt securities or similar securities issued by MascoTech shall not
be deemed to be Debt to the extent such securities are not treated as debt of
MascoTech in accordance with generally accepted accounting principles..
"Debt Securities" means any securities (as defined under the Securities
Act of 1933, as amended) evidencing Debt.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Determination Date" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Determination Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Deutsche Marks" or "DM" means the lawful money of the Republic of
Germany.
"Dollar Bid-Option Borrowing" means any Borrowing consisting of a Dollar
Bid-Option Loan.
"Dollar Bid-Option Loan" means a Bid-Option Loan made in Dollars.
"Dollar Bid-Option Percentage" means, with respect to any Bank and any
Dollar Bid-Option Borrowing, the percentage of the aggregate outstanding
principal amount of all the Dollar Bid-Option Loans comprising such Borrowing
represented by the outstanding principal amount of the Dollar Bid-Option Loan
made by such Bank as part of such Borrowing.
"Dollar Equivalent" means, as of any date, (a) with respect to any amount
of Dollars, the amount thereof, and (b) with respect to any amount of any
Alternate Currency, the amount of Dollars that could be purchased with such
amount of such Alternate Currency at the spot rate of exchange quoted by the
Administrative Agent at approximately 10:00 a.m. (Chicago time) on such date or
such number of Business Days before such date as may reasonably be deemed
necessary by the Administrative Agent for purposes of this Agreement.
"Dollars" and "$" shall mean the lawful money of the United States.
"Domestic Lending Office" means, as to any Bank, its office identified on
the signature pages hereof as its Domestic Lending Office or such other office
as such Bank may hereafter designate as its Domestic Lending Office.
9
"Domestic Subsidiary" means a Subsidiary that is incorporated under the
laws of the United States of America or any State thereof.
"EBITDA" means, for any rolling four fiscal quarter period, on a
consolidated basis for MascoTech and its Consolidated Subsidiaries, the sum of
the amounts for such period, without duplication, of (i) Net Income for such
period, plus (ii) Interest Charges for such period, plus (iii) charges against
income for taxes (including the Michigan Single Business Tax) to the extent
deducted in computing Net Income during such period, plus (iv) depreciation
expense to the extent deducted in computing Net Income during such period, plus
(v) amortization expense, including without limitation, amortization of goodwill
and other intangible assets, and fees, costs and expenses in connection with the
Tender Offer and the Merger to the extent deducted in computing Net Income
during such period, plus (vi) other non-cash charges (excluding any non-cash
charges that require an accrual or reserve for cash charges for any future
period, other than accruals for future retiree medical obligations, made
pursuant to SFAS Xx. 00, Xx. 000 and No. 106, as amended or modified) to the
extent deducted in computing Net Income during such period, minus (vii)
extraordinary gains to the extent they are non-cash items and to the extent
included in computing Net Income during such period, plus (viii) extraordinary
losses to the extent they are non-cash items and to the extent deducted in
computing Net Income during such period; minus (ix) if EBITDA Certain Items is
positive, (a) zero, if EBITDA Certain Items is less than or equal to $30,000,000
and (b) the amount by which EBITDA Certain Items exceeds $30,000,000; plus (x)
if EBITDA Certain Items is negative, the lesser of (a) the absolute value of
EBITDA Certain Items and (b) $30,000,000; provided further that in the event
MascoTech or any of its Consolidated Subsidiaries acquires any corporation or
business, EBITDA shall be calculated on a pro forma basis (which, to the extent
deemed reasonable to the Administrative Agent, may include as pro forma
adjustments, reasonable eliminations of excess compensation (including salaries)
and other adjustments that are attributable to the change in ownership or
management of the corporation or business) as if MascoTech or such Subsidiary
had owned the acquired corporation or business for the four fiscal quarters
preceding its acquisition.
"EBITDA Certain Items" is the sum (which may be positive or negative) of
(a) non-recurring and (without duplication) extraordinary gains to the extent
they are cash items and to the extent included in computing Net Income during
such period, plus (b) non-cash earnings from equity investments to the extent
included in computing Net Income during such period, minus (c) non-recurring and
(without duplication) extraordinary losses to the extent they are cash items and
to the extent included in computing Net Income during such period, minus (d)
non-cash losses from equity investments to the extent included in computing Net
Income during such period.
"Eligible Currency" means any currency other than Dollars that is readily
available, freely traded, in which deposits are customarily offered to banks in
the London interbank market, convertible into Dollars in the international
interbank market and as to which the Dollar Equivalent may be readily
calculated. If, (i) after the designation by the Administrative Agent of any
currency as an Alternate Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with the
result that different types of such currency are introduced, (ii) such country's
currency is, in the determination of the Administrative Agent, no longer readily
available or
10
freely traded, or (iii) in the determination of the Administrative Agent, a
Dollar Equivalent for such country's currency is not readily calculable, then
the Administrative Agent shall promptly notify the Alternate Currency Agent and
MascoTech, and such country's currency shall no longer be an Alternate Currency
until such time as the Administrative Agent agrees to reinstate such country's
currency as an Alternate Currency and promptly, but in any event within five (5)
Business Days of receipt of such notice from the Administrative Agent, the
Borrowers with respect to such Alternate Currency shall repay all Loans in such
affected currency or convert such Loans into Loans in Dollars or an Alternate
Currency, as applicable, subject to the other terms contained in Articles III
and IV.
"Environmental Laws" means any and all applicable United States federal,
state and local statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
and other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with any Borrower, are treated as a single employer under
Section 414(b), (c) or (m), or the regulations prescribed under Section 414(o),
of the Code.
"Euro" means the lawful currency adopted by the European Economic
Community.
"Eurodollar Base Rate" applicable to any Eurodollar Rate Interest Period
means the per annum rate obtained by dividing (a) the per annum rate of interest
at which deposits in Dollars for such Interest Period and in an aggregate amount
comparable to (i) in the case of Eurodollar Rate Syndicated Loans, the amount of
the related Eurodollar Rate Syndicated Loans to be made by the Eurodollar
Reference Banks in their capacity as Banks hereunder, and (ii) in the case of
Eurodollar Rate Bid-Option Loans, the aggregate amount of the Eurodollar Rate
Bid-Option Borrowing set forth in the related Bid-Option Quote Request, are
offered to the Eurodollar Reference Banks by other prime banks in the London or
Nassau interbank market, selected in the Eurodollar Reference Banks' discretion,
at approximately 11:00 a.m. London or Nassau time, as the case may be, on the
second Business Day prior to the first day of such Eurodollar Rate Interest
Period, by (b) an amount equal to
11
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 is specified on the first day of
such Eurodollar Rate 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 Eurodollar funding (currently referred to as
"Eurodollar liabilities" in Regulation D of such Board) maintained by a member
bank of such System; all as conclusively determined, absent manifest error, by
the Administrative Agent.
"Eurodollar Borrowing" means any Borrowing consisting of a Eurodollar Rate
Loan.
"Eurodollar Lending Office" means, as to any Bank, its office identified
on the signature pages hereof as its Eurodollar Lending Office or such other
branch (or Affiliate) of such Bank as such Bank may hereafter designate as its
Eurodollar Lending Office.
"Eurodollar Rate Bid-Option Borrowing" means any Borrowing consisting of a
Eurodollar Rate Bid-Option Loan.
"Eurodollar Rate Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Eurodollar Rate.
"Eurodollar Rate Interest Period" means, with respect to each Eurodollar
Rate Syndicated Loan, the period commencing on the date of such Eurodollar Rate
Syndicated Loan and ending one month, two months, three months, four months,
five months or six months thereafter, or twelve months if such proposed twelve-
month Eurodollar Rate Interest Period is specifically agreed to by all Banks,
and with respect to each Eurodollar Rate Bid-Option Loan, the period commencing
on the date of such Eurodollar Rate Bid-Option Loan and ending on a date between
fifteen days and twelve months thereafter, as a Borrower may request in the
applicable Notice of Borrowing; provided that:
(a) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month in which case such
Interest Period shall end on the next preceding Business Day;
(b) unless such Interest Period is for less than one month, any
such Interest Period that begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the calendar
month during which such Eurodollar Interest Period is to end shall end on the
last Business Day of such calendar month; and
(c) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Eurodollar Rate" means with respect to a Eurodollar Rate Loan for the
relevant Interest
12
Period, the Eurodollar Base Rate applicable to such Interest Period plus the
then Applicable Margin.
"Eurodollar Rate Loan" means any Eurodollar Rate Bid-Option Loan or
Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Eurodollar Rate.
"Eurodollar Rate Syndicated Revolving Loan" means a Syndicated Revolving
Loan which bears interest at the Eurodollar Rate.
"Eurodollar Reference Bank" means the principal London office of each of
The First National Bank of Chicago, Bank of America NT&SA and NationsBank, N.A.,
or such other Eurodollar Reference Banks as may be appointed pursuant to Section
11.6.
"Events of Default" has the meaning ascribed thereto in Section 9.1.
"Excess Cash Flow" means, for any period, (i) Net Income for such period
minus (ii) scheduled amortization payments of the principal portion of all Debt
(excluding the installment due January 31, 2002) with an original maturity in
excess of one year during such period minus (iii) the aggregate amount of all
dividends in respect of any preferred stock of MascoTech and its Consolidated
Subsidiaries up to an amount not to exceed $15,000,000 in any four fiscal
quarter period. Excess Cash Flow shall be calculated on a quarterly basis on
each Determination Date.
"Existing Agent" means NBD Bank, a Michigan banking corporation, formerly
known as NBD Bank, N.A., in its capacity as agent for the Existing Banks.
"Existing Banks" means the banks that are parties to the Existing Credit
Agreement.
"Existing Bid-Option Loans" means the "Bid-Option Loans" (as defined in
the Existing Credit Agreement) outstanding on the Closing Date.
"Existing Commitment" means, with respect to each Bank, the amount, if
any, of such Bank's "Commitment" (as defined in the Existing Credit Agreement)
immediately prior to the Closing Date.
"Existing Credit Agreement" means the Credit Agreement dated as of
February 28, 1997, among MascoTech, the Existing Banks and the Existing Agent,
as amended, supplemented or otherwise modified, and as in force immediately
prior to the Closing Date.
"Existing Debt" shall have the meaning ascribed thereto in the definition
of the term "Senior Debt".
"Existing Notes" means the "Notes" (as defined in the Existing Credit
Agreement) held by the
13
Existing Banks under the Existing Credit Agreement.
"Facility Fees" means the facility fees payable pursuant to Section
3.9(a).
"Federal Funds Rate" means, as of any day, 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, in the case
of any day on which the federal funds market is not open, for the immediately
preceding day on which it was open), or, if such rate is not so published for
any day (or, in the case of any day on which the federal funds market is not
open, for the immediately preceding day on which it was open), the average of
the quotations for such rates received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the Administrative
Agent in its discretion; all as conclusively determined, absent manifest error,
by the Administrative Agent, such average to be rounded up, if necessary, to the
nearest whole multiple of 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.
"Financing" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Debt Securities of
such Person other than (i) any Equity Interests or Debt Securities issued to
MascoTech or any of its Subsidiaries, (ii) any Equity Securities issued in
connection with any employee stock option, employee stock award or any related
benefit plan, (iii) any Debt Securities issued by any Subsidiary to the extent
permitted under Section 7.7 and (iv) any Debt Securities secured by a Lien
permitted pursuant to Section 7.8(c) or (f).
"Fixed Charge Coverage Ratio" has the meaning ascribed thereto in Section
7.5.
"Fixed Rate Loan" means any Eurodollar Rate Syndicated Loan, Alternate
Currency Syndicated Loan or Bid-Option Loan.
"Floating Rate" means, with respect to any Floating Rate Loan, the greater
of (a) the Corporate Base Rate and (b) the per annum rate equal to the sum of
(i) one-half percent (1/2%) plus (ii) the Federal Funds Rate; which Floating
Rate shall change simultaneously with any change in such Corporate Base or
Federal Funds Rate, as the case may be.
"Floating Rate Borrowing" means any Borrowing consisting of a Floating
Rate Loan.
"Floating Rate Loan" means a Loan which pursuant to the applicable Notice
of Borrowing is made at the Floating Rate.
"Floating Rate Revolving Loan" means a Revolving Loan which bears interest
at the Floating Rate.
"Floating Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Floating
14
Rate.
"Indemnified Person" shall have the meaning ascribed thereto in Section
11.5(a) hereto.
"Interest Charges" means, for any period, the sum of interest that is
expensed (or, under generally accepted accounting principles, would be expensed)
during such period by MascoTech and its Consolidated Subsidiaries on Debt of
MascoTech and its Consolidated Subsidiaries, including any interest expense in
connection with any trust convertible debt securities issued by MascoTech to the
extent it is treated as interest expense in accordance with generally accepted
accounting principles.
"Interest Payment Date" means, with respect to each Floating Rate Loan,
the last Business Day of each month, with respect to each Swing Line Loan, the
date such Loan is repaid, and with respect to each other Loan, the last day of
each Interest Period with respect to such Loan and, in the case of any Interest
Period exceeding (a) with respect to Eurodollar Rate Loans and the Alternate
Currency Syndicated Loans, three months or (b) with respect to Absolute Rate
Dollar Bid-Option Loans, ninety days, those days that occur during such Interest
Period at intervals of three months and ninety days, respectively, after the
first day of such Interest Period.
"Interest Period" means any Eurodollar Rate Interest Period, Bid-Option
Interest Period or Alternate Currency Syndicated Interest Period; provided,
however, notwithstanding anything in this Agreement to the contrary for the
period from the Closing Date to the earlier of (x) the date that is 90 days
after the Closing Date and (y) the date 30 days after the date upon which the
Arrangers confirm that the loan syndication process has been complete but not
later than March 15, 1998 (the "Syndication Period"), "Interest Period" means,
with respect to a Eurodollar Rate Loan (except as the Administrative Agent
otherwise approves), a period of seven (7) or fourteen (14) days.
"Invitation for Bid-Option Quotes" means an Invitation for Bid-Option
Quotes in the form referred to in Section 3.4(c).
"Italian Lire" means the lawful money of Italy.
"Letter of Credit" shall mean a standby letter of credit issued for the
account of MascoTech or any of its Consolidated Subsidiaries pursuant to this
Agreement.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(f).
"Letter of Credit Issuance" shall mean any issuance by the Administrative
Agent of a Letter of Credit pursuant to Section 3.3.
"Letter of Credit Obligations Amount" means, as of any date, the amount
equal to the sum of (a) the maximum aggregate amount available to be drawn under
all outstanding Letters of Credit at any time on or before the stated expiry
date thereof, plus (b) the amount of any draws under all Letters of Credit that
have not been reimbursed as provided in Section 3.3(e).
15
"Leverage Ratio" has the meaning ascribed thereto in Section 7.6.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
security interest or similar encumbrance in respect of such asset; provided that
a subordination agreement shall not be deemed to create a Lien. For the
purposes of this Agreement, MascoTech or any Consolidated Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other similar title retention agreement relating to such asset.
"Loan" means any (a) Swing Line Loan or (b) Term Loan or (c) Revolving
Loan or (d) Bid-Option Loan or (e) Alternate Currency Loan.
"Marketable Securities" means any securities which are marketable
securities included in current assets in accordance with generally accepted
accounting principles and any future or forward contracts related thereto.
"Masco Corporation" means Masco Corporation, a Delaware corporation.
"Masco Group" means Masco Corporation or any Person who, on the date
hereof, is an Affiliate of Masco Corporation or who hereafter becomes an
Affiliate controlled by Masco Corporation.
"Material Adverse Change" means any event, occurrence, development or
state of circumstances or facts which has had or has a reasonable probability of
having, individually or in the aggregate, a material adverse effect on MascoTech
and its Consolidated Subsidiaries (including the Target and its Consolidated
Subsidiaries, to the extent the Target is owned by MascoTech or Acquisition,
which, with respect to the funding to purchase the shares of the Target acquired
pursuant to the Tender Offer, would take into effect the shares to be purchased)
taken as a whole.
"Merger" means the merger of the Target and Acquisition pursuant to the
Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger dated
as of December 10, 1997, as amended by Amendment No. 1 dated as of December 15,
1997 and Amendment No. 2 dated as of January 13, 1998, among Target, MascoTech
and Acquisition.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor thereto.
Any rating or change in rating given by Moody's shall be deemed effective, and
in effect, when publicly announced by Moody's.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which a Borrower or any
ERISA Affiliate is then making, or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions or has within
the preceding five plan years made contributions, including for these purposes
any Person
16
which ceased to be an ERISA Affiliate during such five-year period.
"Net Cash Proceeds" means, with respect to any Asset Sale or any Financing
by any Person, (a) cash (freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such Asset Sale or such Financing
(or, in the case of a Receivables Sale, the Receivables Sale Amount with respect
to such Receivables Sale), after (i) provision for all income or other taxes
measured by or resulting from such Asset Sale, (ii) payment of all brokerage
commissions and other fees and expenses related to such Asset Sale or such
Financing, and (iii) all amounts used to repay Debt secured by a Lien on any
asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Debt) to be repaid in connection
with such Asset Sale (including payments made to obtain or avoid the need for
the consent of any holder of such Debt); and (b) cash payments in respect of any
other consideration received by such Person or any Subsidiary of such Person
from such Asset Sale upon receipt of such cash payments by such Person or such
Subsidiary.
"Net Income" means, for any period, the consolidated net income of
MascoTech and its Consolidated Subsidiaries (after deduction for income and
other taxes of MascoTech and its Consolidated Subsidiaries determined by
reference to income or profits of MascoTech and its Consolidated Subsidiaries)
for such period, all as determined in accordance with generally accepted
accounting principles.
"Net Worth" means, as of any date, (a) the amount of total shareholders'
equity of MascoTech and its Consolidated Subsidiaries on such date, determined
on a consolidated basis in accordance with generally accepted accounting
principles, minus (or, if the amount determined pursuant to the following clause
(b) is negative, plus the absolute amount thereof) (b) to the extent included in
total shareholders' equity the amount of the foreign currency translation
adjustment account, plus (c) the amount of the foreign currency translation
adjustment account shown on the consolidated balance sheet of MascoTech and its
Consolidated Subsidiaries dated September 30, 1997, which amount is $4,520,000.
"New Debt" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Note" means any Revolving Note, Term Loan Note, Bid-Option Note or Swing
Line Note or any note issued to evidence the Alternate Currency Loans.
"Notice of Bid-Option Borrowing" shall have the meaning ascribed thereto
in Section 3.4(f).
"Notice of Borrowing" means any Notice of Syndicated Borrowing or Notice
of Bid-Option Borrowing or Notice of Swing Line Borrowing.
"Notice of Syndicated Borrowing" shall have the meaning ascribed thereto
in Section 3.7(a).
"Overdue Rate" means (a) in respect of the principal of any Loan, the
rate per annum that is
17
equal to the sum of two percent (2%) per annum plus the per annum rate otherwise
applicable to such Loan 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 two
percent (2%) per annum plus the Floating Rate; and (b) in respect of other
amounts payable by the Borrowers hereunder (other than interest), a per annum
rate that is equal to the sum of two percent (2%) per annum plus the Floating
Rate.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, corporation, partnership, joint venture,
trust, association, limited liability company or unincorporated organization, or
a government or any agency or political subdivision thereof.
"Plan" means at any time any employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained, or contributed to, by a Borrower or any ERISA Affiliate for
employees of such Borrower or any ERISA Affiliate, or (b) has at any time within
the preceding five years been maintained, or contributed to, by a Borrower or
any Person which was at such time an ERISA Affiliate for employees of such
Borrower or any Person which was at such time an ERISA Affiliate.
"Pounds Sterling" means the lawful money of the United Kingdom.
"Pro Rata Share" means, with respect to any Bank, the percentage obtained
by dividing (a) such Bank's Revolving Credit Commitment at such time (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement) plus the outstanding balance of such Bank's Term Loans by (b) the
aggregate amount of all of the Revolving Credit Commitments at such time plus
the outstanding principal balance of all of the Term Loans; provided, however,
if all of the Revolving Credit Commitments are terminated pursuant to the terms
of this Agreement, then "Pro Rata Share" means the percentage obtained by
dividing (x) the sum of such Bank's Revolving Loans and Term Loans by (y) the
aggregate amount of all Revolving Loans and Term Loans.
"Receivables Sale" means any Asset Sale consisting of the sale of accounts
or notes receivable and associated assets, other than any such sale in bulk as
part of a sale or other disposition of all or substantially all of the assets or
stock of any Person or of any principal division or lines of business of any
Person.
"Receivables Sale Amount" means in the case of a single sale of
receivables, the cash proceeds received by the transferor, and, in the case of a
revolving receivables sales facility, the cash proceeds received by the seller
representing incremental new funding in excess of any previous level of funding
made available under such facility, net of repayments of Debt or repurchases
under, or proceeds otherwise required to refinance, any previous receivables
sales facility.
18
"Reference Bank" means any Eurodollar Reference Bank.
"Refunded" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds of such Borrowing, results in no net increase in the Dollar Equivalent
of the aggregate outstanding principal amount of the Loans made by any Bank.
"Reimbursement Amount" shall have the meaning ascribed thereto in Section
3.3(e).
"Request for a New Alternate Currency Facility" shall have the meaning
ascribed thereto in Section 3.6(b).
"Request for Letter of Credit Issuance" shall have the meaning ascribed
thereto in Section 3.3(b).
"Required Banks" means Banks having not less than 51% of the aggregate
amount of the Commitments or, if the Commitments have terminated, Banks holding
Notes evidencing not less than 51% of the aggregate unpaid principal amount of
the Loans.
"Restricted Payment" means, without duplication, (i) any dividend or other
distribution on account of any Equity Interest of MascoTech now or hereafter
outstanding, (ii) any redemption, retirement, purchase or other acquisition for
value of any Equity Interests of MascoTech now or hereafter outstanding, (iii)
any redemption, purchase, retirement, defeasance, prepayment or other
acquisition for value, direct or indirect, of any Subordinated Debt or any trust
convertible debt securities or similar securities to the extent such securities
are not treated as debt of MascoTech in accordance with generally accepted
accounting principles, in each case prior to the stated maturity thereof or (iv)
an amendment or modification of any term or provision of any instrument or
agreement relating to any Subordinated Debt such that it would not constitute
Subordinated Debt as defined in this Agreement or would mature or any principal
payment thereunder would be due prior to the Termination Date, but in the case
of any of the foregoing shall exclude issuances of, or purchases of, Equity
Interests, or the payment of dividends, in connection with employee stock
option, employee stock award or any related benefit plans.
"Revolving Credit Commitment" means, with respect to each Bank whose
commitment has not been terminated pursuant to Section 11.13, the commitment of
such Bank to make Revolving Loans pursuant to Section 3.1, to participate in the
risk of Letters of Credit pursuant to Section 3.3 and to participate in the risk
of the Swing Line Loans pursuant to Section 3.5 and Alternate Currency Loans
pursuant to Section 3.6 in an aggregate principal amount the Dollar Equivalent
of which does not exceed (a) in the case of each Bank originally a party hereto,
the amount set forth opposite the name of such Bank on the signature pages
hereof, and (b) in the case of each Bank becoming a party hereto in accordance
with Section 11.6(d) or 11.13, the aggregate amount assigned to it, in each case
(i) less the aggregate amount, if any, subsequently assigned by it in accordance
with Section 11.6(d), (ii) plus the
19
aggregate amount, if any, subsequently assigned to it under Section 11.6(d) or
11.13 and (iii) subject to activation pursuant to Section 3.1, and as such
amount may be reduced from time to time pursuant to Section 3.10.
"Revolving Credit Commitment Percentage" means, with respect to any Bank,
the percent of the aggregate amount of all the Revolving Credit Commitments
represented by the amount of such Bank's Revolving Credit Commitment.
"Revolving Loan" means any Loan made pursuant to Section 3.1.
"Revolving Note" means a promissory note of any Borrower substantially in
the form of Exhibit A-1 hereto evidencing the obligation of such Borrower to
repay Revolving Loans, as amended or modified from time to time and together
with any promissory note or notes issued in exchange or replacement therefor.
"S&P" means Standard & Poor's Ratings Group or any successor thereto. Any
rating or change in rating given by S&P shall be deemed effective, and in
effect, when publicly announced by S&P.
"Scheduled Expiration Date" means November 15, 2003.
"Securities Purchase Agreement" means the Amended and Restated Securities
Purchase Agreement dated as of November 23, 1993, as amended by that certain
Amendment No. 1 to Amended and Restated Securities Purchase Agreement made as of
October 31, 1996, between MascoTech and Masco Corporation, as in effect on the
Closing Date in the form attached hereto as Exhibit J, and as heretofore or
hereafter amended, supplemented or otherwise modified from time to time.
Nothing in this Agreement shall prohibit MascoTech and Masco Corporation from
amending or terminating such Securities Purchase Agreement, provided that at the
time of such amendment or termination, and immediately after giving effect
thereto, no Default exists or would exist, and, provided, that MascoTech
delivers a copy of any such amendment to the Administrative Agent within 30 days
of the date of such amendment.
"Securitization Amount" means, as of any date, the aggregate amount of
proceeds received by MascoTech or any of its Consolidated Subsidiaries, as the
transferor, with respect to any Receivables Sale at such date to the extent the
related transferee is entitled at such time to the recovery of such amount out
of the proceeds of the assets transferred pursuant thereto.
"Senior Debt" means all Debt of MascoTech and its Consolidated
Subsidiaries, determined on a consolidated basis, except Subordinated Debt,
provided that, for purposes of this definition, if any Debt ("Existing Debt") is
to be Refunded (as hereinafter defined) with the proceeds of other money
borrowed ("New Debt"), the Existing Debt to be so Refunded shall be excluded
from Senior Debt when the New Debt is incurred. For purposes of this
definition, Existing Debt is to be "Refunded" by New Debt if, and to the extent
that, (i) no later than five (5) Business Days after the New Debt is
20
incurred, MascoTech delivers to the Administrative Agent written notice stating
that the purpose of such New Debt is to refund Existing Debt and specifying the
Existing Debt to be refunded, (ii) the proceeds of such New Debt are held in the
form of Cash and Cash Equivalents (free of any Lien except a Lien securing the
specified Existing Debt to be refunded and no other indebtedness or obligations)
until such specified Existing Debt is repaid and (iii) such specified Existing
Debt is repaid within 45 (forty-five) days after the New Debt is incurred.
"Senior Debt Coverage Ratio" means, at any time from and including the
last day of any fiscal quarter of MascoTech to but excluding the last day of the
following fiscal quarter of MascoTech, the ratio of (a) Senior Debt as of the
end of such fiscal quarter to (b) EBITDA for the immediately preceding four
fiscal quarters.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of MascoTech as defined in Rule 1-02 of Regulation S-X under the
Securities Exchange Act of 1934, except that during fiscal year 1998, TriMas
Corporation shall be treated as if it were a Subsidiary of MascoTech as of
December 31, 1997, determined on a pro forma basis.
"Subordinated Debt" means, without duplication, (a) all Debt now
outstanding or hereafter created, issued, guaranteed, incurred or assumed by any
of the Borrowers which is subordinated to payment of principal, premium, if any,
and interest on the Notes by provisions not less favorable in any material
respect to the holders of the Notes than the provisions set forth on Exhibit O;
(b) Debt evidenced by MascoTech's 4-1/2% Convertible Subordinated Debentures due
2003, in the original principal amount of $345,000,000 and (c) Debt hereafter
issued pursuant to the Securities Purchase Agreement; provided, however, that
any of such Debt shall cease to be "Subordinated Debt" upon and to the extent of
the Borrowers' repurchase or redemption of such Debt as permitted hereunder or
the Borrowers' transfer, conveyance, assignment or delivery to any trustee,
paying agent or other fiduciary for the benefit of the holder(s) of such Debt of
any cash, securities or other assets of the Borrowers in payment or on account
of, or as provision for, the principal of such Debt; provided further, however,
that any of such Debt referred to in clauses (b) and (c) of this definition
shall cease to be "Subordinated Debt" upon any amendment or other modification
to the Debentures referred to in such clause (b) or any instrument issued
pursuant to the Securities Purchase Agreement referred to in clause (c)
evidencing such Debt, relating to the subordination thereof, unless, in any such
case, the provisions of such Debentures after giving effect to such amendment or
modification are not less favorable in any material respect to the holders of
the Notes than the provisions set forth on Exhibit O.
"Subsidiary" of any Person means (a) any limited partnership (whether now
existing or hereafter organized) of which such Person or another Subsidiary of
such Person is the general partner, (b) any general partnership or limited
liability company (whether now existing or hereafter organized) of which such
Person or one or more of the other Subsidiaries of such Person own at least a
majority of the ownership or membership interests and (c) any corporation
(whether now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency), at the time as of which
21
any determination is being made, is 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 the context otherwise requires, references to
"Subsidiary" or "Subsidiaries" herein refer to MascoTech's Subsidiaries.
"Substitute Loan" means any Loan made by a Bank pursuant to Section 5.4.
"Swing Line Bank" means The First National Bank of Chicago.
"Swing Line Borrowing" means any Borrowing consisting of a Swing Line
Loan.
"Swing Line Commitment" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
"Swing Line Loan" means a loan made available to any of the Borrowers by
the Swing Line Bank pursuant to Section 3.5.
"Swing Line Loan Note" means a Note in substantially the form of
Exhibit B-2 hereto duly executed by the applicable Borrowers and payable to the
order of the Swing Line Bank in the amount of the Swing Line Commitment.
"Syndicated Loan" means any Revolving Loan or Term Loan.
"Syndicated Revolving Credit Borrowing" means any Borrowing consisting of
a Revolving Loan made to a Borrower on a syndicated basis.
"Syndication Period" shall have the meaning ascribed thereto in the
definition of the term "Interest Period".
"Synthetic Lease Agreement" shall have the meaning ascribed thereto in the
definition of the term "Synthetic Lease Amount".
"Synthetic Lease Amount" means, as of any date, 85% of the aggregate fair
market value of all real property subject to an agreement (a "Synthetic Lease
Agreement") for the use or possession of such real property by MascoTech or any
of its Consolidated Subsidiaries in effect at such date creating obligations
which do not appear on the balance sheet of any such Person but which, upon the
insolvency of such Person, would be characterized as Debt of such Person
(without regard to accounting treatment). For purposes of this definition, the
fair market value of each real property subject to a Synthetic Lease Agreement
shall be determined at the time of execution of such Synthetic Lease Agreement.
"Term Loan" means a Loan made pursuant to Section 3.2(a).
22
"Term Loan Commitment" means, with respect to each Bank whose commitment
has not been terminated pursuant to Section 11.13, the commitment of such Bank
to make Term Loans pursuant to Section 3.2, in an aggregate principal amount
which does not exceed, (a) in the case of each Bank originally a party hereto,
the amount set forth opposite the name of such Bank on the signature pages
hereof, and (b) in the case of each Bank becoming a party hereto in accordance
with Section 11.6(d) or 11.13, the aggregate amount assigned to it, in each case
(i) less the aggregate amount, if any, subsequently assigned by it in accordance
with Section 11.6(d) and (ii) plus the aggregate amount, if any, subsequently
assigned to it under Section 11.6(d) or 11.13.
"Term Note" means a promissory note, in substantially the form of Exhibit
A-2 hereto, duly executed by a Borrower and payable to the order of Bank in the
amount of its Term Loan Commitment, including any amendment, restatement
modification, renewal or replacement of such Term Note.
"Termination Date" means the earlier to occur of (a) the Scheduled
Expiration Date and (b) the date on which the Commitments shall be terminated
pursuant to Section 3.11 or 9.1.
"Type" means, with respect to any Loan, its nature as a Floating Rate Loan
or Eurodollar Rate Loan.
"Unfunded Benefit Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (a) the present value of all vested
nonforfeitable benefits under such Plan exceeds (b) the fair market value of all
Plan assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a Borrower or any ERISA Affiliate to the PBGC or any other Person
under Title IV of ERISA.
1.2 Accounting Terms. Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted accounting principles as
in effect from time to time, on a basis consistent, to the extent required by
such principles, with the most recent audited consolidated financial statements
of MascoTech and its Consolidated Subsidiaries filed with the Securities and
Exchange Commission on Form 10-K and delivered to the Banks prior to the Closing
Date; provided that, if MascoTech notifies the Administrative Agent that the
Borrowers wish to amend any covenant in Article VII to eliminate the effect of
any change in generally accepted accounting principles in the operation of such
covenant (or if the Administrative Agent notifies the Borrowers that the
Required Banks wish to amend Article VII for such purpose), then the Borrowers'
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
Borrowers and the Required Banks. Without limiting the foregoing, all transfers
of receivables shall be recognized as sales, and not as Debts or Liens, if they
would be recognized as sales in accordance with generally accepted accounting
principles, provided
23
that all probable adjustments in connection with the recourse provisions are
accrued, all as more specifically described in Statement of Financial Accounting
Standards No. 125.
1.3 Other Definitions; Rules of Construction. As used herein, the terms
"Acquisition", "Administrative Agent", "Agents", "Bank", "Banks", "Borrowers",
"MascoTech", "Syndication Agents", "Target" and "this Agreement" shall have the
respective meanings ascribed thereto in the introductory paragraph of this
Agreement. Use of the terms "herein", "hereof" and "hereunder" shall be deemed
references to this Agreement in its entirety and not solely to the Section or
clause in which such term appears. Unless otherwise specified herein,
references to "Sections" and "subsections" shall be to Sections and subsections,
respectively, of this Agreement.
Except as provided in the definition of Eurodollar Rate Interest Period, if any
payment, report, financial statement, notice or other obligation is due
hereunder on a day which is not a Business Day, then the due date thereof shall
be extended to the next Business Day.
ARTICLE II.
TERMINATION OF EXISTING CREDIT AGREEMENT
Termination. The Borrowers and the Banks acknowledge and agree that,
effective as of the initial Borrowing pursuant to Section 8.2(b), the Existing
Commitment of each Existing Bank shall hereby be terminated. Each Existing Bank
that is a party hereto shall cancel all Existing Notes (other than notes
evidencing Existing Bid-Option Loans that the holder thereof has agreed may
remain outstanding past the Closing Date) held by it and return them to
MascoTech promptly after all amounts payable thereunder have been paid in full.
Notwithstanding the foregoing, MascoTech and each of the Banks acknowledge and
agree that each Existing Bid-Option Loan made by any of the Banks which has
agreed that such Loan may remain outstanding past the Closing Date shall
continue with its existing principal amount, interest rate and Interest Period,
except that each such Existing Bid-Option Loan shall be deemed a Bid-Option Loan
under this Agreement and shall be governed by the provisions of this Agreement.
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES
3.1 Revolving Loans. Each Bank agrees, for itself only, subject to the
terms and conditions set forth in this Agreement, to make Revolving Loans in
Dollars to any Borrower from time to time from the Closing Date to but excluding
the Termination Date; provided that the aggregate outstanding principal amount
of such Bank's Revolving Loans shall not at any time exceed the excess of (a)
the amount of its Revolving Credit Commitment, over (b) the sum of (i) its
Revolving Credit
24
Commitment Percentage of the Letter of Credit Obligations Amount plus (ii) its
Revolving Credit Commitment Percentage of the aggregate outstanding principal
balance of the Swing Line Loans plus (iii) its Revolving Credit Commitment
Percentage of the Dollar Equivalent of the aggregate outstanding principal
amount of all Bid-Option Loans made by the Banks (using for purposes of such
determination, in the case of any Alternate Currency Loans, the Dollar
Equivalent as determined on the last Business Day of the month then most
recently ended); provided, however, that at no time shall the aggregate
outstanding principal balance of the Revolving Loans, Swing Line Loans,
Alternate Currency Loans, Bid-Option Loans and Letter of Credit Obligations
exceed $800,000,000. Each Eurodollar Borrowing shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $5,000,000 and each
Floating Rate Borrowing shall be in an aggregate principal amount of $5,000,000
or any larger multiple of $5,000,000; provided that any such Borrowing may be in
the aggregate amount of the unused Revolving Credit Commitments. Each such
Borrowing shall be made by the several Banks ratably in accordance with their
respective Revolving Credit Commitment Percentages. Within the foregoing
limits, each Borrower may borrow Revolving Loans under this Section 3.1, repay
such Revolving Loans, prepay such Loans to the extent permitted or required by
this Agreement and reborrow under this Section 3.1. Default by any Bank with
respect to its obligations hereunder shall not excuse any non-performance by any
other Bank, provided that no Bank shall be liable for the non-performance by any
other Bank of its obligations hereunder.
3.2 Term Loans. Subject to the terms and conditions set forth in
this Agreement, each Bank on the Closing Date severally and not jointly agrees
to make a term loan, in Dollars, to one or more of the Borrowers in an aggregate
amount not to exceed such Bank's Term Loan Commitment (each individually, a
"Term Loan" and, collectively, the "Term Loans"). All Term Loans shall be made
by the Banks on the Closing Date simultaneously and pro rata, it being
understood that no Bank shall be responsible for any failure by any other Bank
to perform its obligation to make any Term Loan hereunder nor shall the Term
Loan Commitment of any Bank be increased or decreased as a result of any such
failure.
3.3 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement, the Administrative Agent agrees to issue for the account of and upon
the application of any of the Borrowers, and each Bank further agrees for itself
only to participate in the risk of, Letters of Credit from time to time from the
Closing Date to but excluding the Termination Date; provided that the Letter of
Credit Obligations Amount shall not at any time exceed the lesser of (i)
$150,000,000 and (ii) the excess of (A) the aggregate amount of the Revolving
Credit Commitments over (B) the aggregate outstanding principal amount of the
Revolving Loans plus the outstanding principal amount of the Swing Line Loans
plus the outstanding principal balance of the Bid-Option Loans plus the
aggregate outstanding principal amount of the Alternate Currency Syndicated
Loans. No Letter of Credit shall have a stated expiry date earlier than 30 days
after the date of its issuance, and no Letter of Credit shall have a stated
expiry date or, if by its terms it is periodically renewable, be subject to
being terminated by the Administrative Agent (unless renewal is permitted by the
Administrative Agent in its sole discretion, in which case the Administrative
Agent will not permit renewal to a date beyond that
25
determined in accordance with the following portion of this sentence), later
than the earlier of (i) the one year anniversary of its issuance (or, if
renewable and renewal has been permitted, the one year anniversary of its last
renewal) and (ii) the fifth Business Day before the Scheduled Expiration Date.
Each Letter of Credit shall be in a minimum amount of $1,000,000 or as otherwise
agreed to by the Administrative Agent. Subject to the terms and conditions set
forth in this Agreement, the Administrative Agent shall, on the date any Letter
of Credit is requested to be issued, issue the related Letter of Credit for the
pro rata risk of the Banks. Notwithstanding anything herein to the contrary,
the Administrative Agent may decline to issue any Letter of Credit if the
beneficiary or the conditions of drawing are reasonably unacceptable to the
Administrative Agent, or if the purpose of issuance is illegal or is in
contravention of any law, rule, regulation or public policy or any judgment,
decree, writ, injunction, order or award of any arbitrator, court or
governmental authority.
(b) The applicable Borrower shall give the Administrative Agent
written notice in substantially the form attached hereto as Exhibit D (a
"Request for Letter of Credit Issuance") not later than 10:00 a.m. (Detroit
time) on the fifth Business Day before each requested Letter of Credit Issuance
or such later time as is acceptable to the Administrative Agent.
(c) The applicable Borrower agrees (i) to pay to the
Administrative Agent for the account of the Banks a fee computed at the per
annum rate equal to the Applicable Margin for Letters of Credit based on the
maximum amount available to be drawn from time to time under the related Letter
of Credit for the period from and including the date of such Letter of Credit
Issuance to but excluding the stated expiry date of such Letter of Credit, and
(ii) to pay an additional fee to the Administrative Agent for its own account
computed at the rate of one-eighth of one percent (1/8 of 1%) per annum of such
maximum amount for such period, such fees with respect to any Letter of Credit
to be paid quarterly in arrears, in each case with respect to each calendar
quarter or portion thereof not later than the tenth day after the end of each
March, June, September and December, commencing with the first such calendar
quarter-end after the Closing Date, and on the Termination Date, based upon the
Applicable Margin for Letters of Credit in effect from time to time during such
period. The applicable Borrower further agrees to pay to the Administrative
Agent, on demand, such other customary administrative fees, charges and expenses
of the Administrative Agent in respect of the issuance, negotiation, acceptance,
amendment, transfer and payment of such Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter of
Credit is issued.
(d) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Administrative Agent has the sole obligation under this Agreement to issue
Letters of Credit for the risk of the Banks. Upon each Letter of Credit
Issuance, each Bank shall automatically acquire a pro rata risk participation
interest in the related Letter of Credit based on its respective Revolving
Credit Commitment Percentage. If the Administrative Agent shall honor a draft
or other demand for payment presented or made under any Letter of Credit, the
Administrative Agent shall provide notice thereof to each Bank on the date such
draft or demand is honored unless the applicable Borrower shall have satisfied
its reimbursement obligation under subsection (e) of this Section 3.3 by payment
to the Administrative Agent on such date. Each Bank,
26
on such date, shall make an amount equal to its Revolving Credit Commitment
Percentage of the amount paid by the Administrative Agent available in
immediately available funds at the principal office of the Administrative Agent
for the account of the Administrative Agent. If and to the extent such Bank
shall not have made such amount available to the Administrative Agent, such Bank
and the applicable Borrower severally agree to pay to the Administrative Agent
forthwith on demand such amount, together with interest thereon for each day
from the date such amount was paid by the Administrative Agent until such amount
is so made available to the Administrative Agent at (i) in the case of such
Bank, the Federal Funds Rate and (ii) in the case of the applicable Borrower,
the per annum rate equal to the interest rate applicable during such period to
the related Borrowing deemed (or that could have been deemed) disbursed under
subsection (e) of this Section 3.3 in respect of the reimbursement obligation of
the applicable Borrower. If such Bank shall pay such amount to the
Administrative Agent together with such interest, if any, accrued, such amount
so paid shall constitute a Revolving Loan by such Bank as part of the Borrowing
disbursed in respect of the reimbursement obligation of the applicable Borrower
under subsection (e) of this Section 3.3 for purposes of this Agreement. The
failure of any Bank to make an amount equal to its Revolving Credit Commitment
Percentage of any such amount paid by the Administrative Agent available to the
Administrative Agent shall not relieve any other Bank of its obligation to make
available an amount equal to such other Bank's Revolving Credit Commitment
Percentage of such amount, but no Bank shall be responsible for failure of any
other Bank to make its share available to the Administrative Agent.
(e)(i) Whether a Letter of Credit was issued for the account of any
Borrower or any Consolidated Subsidiary of such Borrower, and without limiting
the reimbursement obligation of such other Consolidated Subsidiary, such
Borrower agrees to pay to the Administrative Agent, not later than 3:00 p.m.
(Detroit time) on the date on which the Administrative Agent shall honor a draft
or other demand for payment presented or made under such Letter of Credit, an
amount equal to the amount paid by the Administrative Agent in respect of such
draft or other demand under such Letter of Credit and all expenses paid or
incurred by the Administrative Agent relative thereto (the "Reimbursement
Amount"). The Administrative Agent shall, on the date of each demand for
payment under any Letter of Credit, give such Borrower notice thereof and of the
amount of such Borrower's reimbursement obligation and liability for expenses
relative thereto; provided that the failure of the Administrative Agent to give
such notice shall not affect the reimbursement and other obligations of such
Borrower under this Section 3.3. Unless such Borrower shall have made such
payment to the Administrative Agent on such day, upon each such payment by the
Administrative Agent, such Borrower shall be deemed to have elected to satisfy
its reimbursement obligation by a Floating Rate Borrowing of a Revolving Loan in
an amount equal to the amount so paid by the Administrative Agent in respect of
such draft or other demand under such Letter of Credit, and the Administrative
Agent shall be deemed to have disbursed to such Borrower, for the account of the
Banks, the Revolving Loans comprising such Floating Rate Borrowing, and each
Bank shall make its share of each such Floating Rate Borrowing available to the
Administrative Agent in accordance with Section 3.7(d). Such Revolving Loans
shall be deemed disbursed notwithstanding any failure to satisfy any conditions
for disbursement of any Loan set forth in Article VIII and, to the extent of the
Revolving Loans so disbursed, the reimbursement obligation of such Borrower
under this subsection (e)(i) shall be deemed satisfied.
27
(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to any of the
Borrowers pursuant to Section 9.1(f) or (g)), Revolving Loans may not be made by
the Banks as described in Section 3.3(e)(i), then (A) such Borrower agrees that
each Reimbursement Amount not paid pursuant to the first sentence of Section
3.3(e)(i) shall bear interest, payable on demand by the Administrative Agent, at
the interest rate then applicable to Revolving Loans, and (B) effective on the
date each such Revolving Loans would otherwise have been made, each Bank
severally agrees that it shall unconditionally and irrevocably, without regard
to the occurrence of any Default, to the extent of such Bank's Revolving Credit
Commitment Percentage, purchase a participating interest in each Reimbursement
Amount. Each Bank will immediately transfer to the Administrative Agent, in
same day funds, the amount of its participation. Each Bank shall share on a pro
rata basis (calculated by reference to its Revolving Credit Commitment
Percentage) in any interest which accrues thereon and in all repayments
thereof. If and to the extent that any Bank shall not have so made the amount of
such participating interest available to the Administrative Agent, such Bank
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Administrative Agent until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate.
(f) The reimbursement obligation of the Borrowers under this
Section 3.3 with respect to each Letter of Credit shall be absolute,
unconditional and irrevocable and shall remain in full force and effect until
all such obligations of the Borrowers to the Banks and the Administrative Agent
with respect to such Letter of Credit shall have been satisfied, and such
obligations of the Borrowers 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 Borrowers:
(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 Borrowers 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
Administrative Agent or any Bank or any other Person, 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;
28
(v) Payment by the Administrative 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, 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
Administrative Agent or any Bank or any party to any of the Letter of
Credit Documents to enforce, assert or exercise any right, power or remedy
conferred upon the Administrative Agent, any Bank or any such party; or
(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 Borrowers 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 Borrowers have or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the
Borrowers against the Administrative Agent or any Bank. Nothing in this Section
3.3 shall limit the liability, if any, of the Administrative Agent to the
Borrowers pursuant to Section 11.5(c).
3.4 Bid-Option Borrowings.
(a) The Bid-Option. In addition to Syndicated Borrowings that are
made pursuant to Sections 3.1 and 3.2, so long as the most recently determined
Senior Debt Coverage Ratio is less than 3.0 to 1.0 (except as provided in
Article II with respect to Existing Bid-Option Loans), the Borrowers may, as set
forth in this Section, from time to time after the Closing Date to but excluding
the Termination Date request the Banks to offer to make Bid-Option Loans to any
one or more of the Borrowers. Each Bank may, but shall have no obligation to,
make such offers; furthermore, each Bank may limit the aggregate amount of Bid-
Option Loans when quoting rates for more than one Bid-Option Interest Period in
any Bid-Option Quote, provided that such limitation shall not be less than the
minimum amounts required hereunder for Bid-Option Loans and the applicable
Borrower may choose among the Bid-Option Loans if such limitation is imposed.
The applicable Borrower may, but shall have no obligation to, accept any such
offers, in the manner set forth in this Section; provided that the Dollar
Equivalent of the aggregate outstanding principal amount of Bid-Option Loans
(using for purposes of such determination, in the case of any Alternate Currency
Loans, the Dollar Equivalent determined on the last Business Day of the month
then most recently ended) shall not, at any time exceed the lesser of (i) the
excess of (A) the aggregate amount of the Revolving Credit Commitments over (B)
the sum of the aggregate outstanding principal amount of Revolving Loans plus
the Letter of Credit Obligations Amount plus the outstanding principal balance
of the Swing Line Loans plus the outstanding principal balance of the Alternate
Currency Syndicated Loans, or (ii) fifty percent (50%) of the sum of the
aggregate amount of the Revolving Credit Commitments and the aggregate principal
amount of the Term Loans (as the same may be reduced in accordance with the
terms of this
29
Agreement during any applicable Bid-Option Interest Period); and provided,
further, that the Dollar Equivalent of the aggregate outstanding principal
amount of Alternate Currency Bid-Option Loans shall not exceed $200,000,000
(when taken together with the Alternate Currency Syndicated Loans).
(b) Bid-Option Quote Requests. When the applicable Borrower
wishes to request offers to make Bid-Option Loans under this Section, it shall
transmit to the Administrative Agent by telex or telecopy a request
substantially in the form attached hereto as Exhibit E (a "Bid-Option Quote
Request") so as to be received no later than 10:00 a.m. (Detroit time) on (i)
the Business Day next preceding the date of the Borrowing proposed therein, in
the case of a Bid-Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii)
the fifth Business Day next preceding the date of the Borrowing in the case of a
Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the fifth
Business Day prior to the date of Borrowing proposed therein, in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans, specifying:
(A) the proposed date of the Borrowing, which shall be a Business
Day;
(B) whether the Borrowing is to be an Absolute Rate Dollar Bid-
Option Borrowing, a Eurodollar Rate Bid-Option Borrowing or an Alternate
Currency Bid-Option Borrowing and, if an Alternate Currency Bid-Option
Borrowing, the desired Alternate Currency;
(C) the aggregate amount of such Borrowing, which shall be (A)
$25,000,000 or a larger multiple of $5,000,000, in the case of a Dollar Bid-
Option Borrowing, or (B) not less than the Dollar Equivalent of $5,000,000, in
the case of a Alternate Currency Bid-Option Borrowing; and
(D) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of the applicable Interest Period.
The Borrowers may request offers to make Bid-Option Loans for more than one
Interest Period in a single Bid-Option Quote Request. The Borrowers may not
request offers to make Bid-Option Loans in more than one currency in any Bid-
Option Quote Request and may not make more than five Bid-Option Borrowings
during any month without the consent of the Administrative Agent.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of a
Bid-Option Quote Request, the Administrative Agent shall send to the Banks by
telex or telecopy (or telephone promptly confirmed by telex or telecopy) an
Invitation for Bid-Option Quotes substantially in the form attached hereto as
Exhibit F, which shall constitute an invitation by the applicable Borrower to
each
30
Bank to submit Bid-Option Quotes offering to make the Bid-Option Loans to which
such Bid-Option Quote Request relates in accordance with this Section.
(d) Submission and Contents of Bid-Option Quotes. (i) Each Bank
may submit a Bid-Option Quote containing an offer or offers to make Bid-Option
Loans in response to any Invitation for Bid-Option Quotes. Each Bid-Option
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or telecopy (or by telephone
promptly confirmed by telex or telecopy) not later than (A) 9:00 a.m. (Detroit
time) on the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Absolute Rate Dollar Bid-Option Loans, (B) 10:00 a.m. (Detroit time) on the
fourth Business Day prior to the proposed date of the Borrowing, in the case of
a Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (C) 2:00 p.m.
(Detroit time) on the third Business Day prior to the proposed date of the
Borrowing, in the case of a Bid-Option Auction for Alternate Currency Bid-Option
Loans; provided that Bid-Option Quotes submitted by the Administrative Agent (or
any Affiliate of the Administrative Agent) in its capacity as a Bank may be
submitted, and may only be submitted, if the Administrative Agent or such
Affiliate notifies the applicable Borrower of the terms of the offer or offers
contained therein not later than (A) 8:45 a.m. (Detroit time) on the proposed
date of the Borrowing, in the case of a Bid-Option Auction for Absolute Rate
Dollar Bid-Option Loans, (B) 9:45 a.m. (Detroit time) on the fourth Business Day
prior to the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Eurodollar Rate Bid-Option Loans, or (C) 1:00 p.m. (Detroit time) on the
third Business Day prior to the proposed date of the Borrowing in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans. Subject to Section
3.4(e), Article VIII and Article IX, any Bid-Option Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given on
the instructions of the applicable Borrower.
(ii) Each Bid-Option Quote shall be in substantially the form
attached hereto as Exhibit G and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) whether the Bid-Option Loans for which the
offers are made are Absolute Rate Dollar Bid-Option
Loans, Eurodollar Rate Bid-Option Loans or Alternate
Currency Bid-Option Loans, which must match the
type of Borrowing stated in the related Invitation for
Bid-Option Quotes;
(C) the principal amount of the Bid-Option Loan
for which each such offer is being made, the Dollar
Equivalent of which (1) may, together with the Dollar
Equivalent of the aggregate outstanding principal
amount of all other Loans made by the quoting Bank,
exceed the amount of the Commitment of the quoting
31
Bank, (2) must be (y) in the case of any Dollar Bid-
Option Loan, $5,000,000 or a larger multiple thereof,
or (z) in the case of any Alternate Currency Bid-Option
Loan, not less than $1,000,000, and (3) may not
exceed the Dollar Equivalent of the aggregate principal
amount of the Bid-Option Borrowing specified in the
related Invitation for Bid-Option Quotes;
(D) in the case of a Bid-Option Auction for
Absolute Rate Dollar Bid-Option Loans or Alternate
Currency Bid-Option Loans, the rate of interest per
annum (the "Bid-Option Absolute Rate") offered for
each such Bid-Option Loan;
(E) in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option Loans, the applicable
margin, which may be positive or negative (the "Bid-
Option Eurodollar Rate Margin"), expressed as a
percentage, offered for each such Bid-Option Loan;
(F) the Interest Period(s) for which each such Bid-
Option Absolute Rate or Bid-Option Eurodollar Rate
Margin, as the case may be, is offered; and
(G) the identity of the quoting Bank.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit G
hereto or does not specify all of the information
required by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Bid-
Option Quotes; or
(D) arrives after the time set forth in subsection (d)(i);
32
provided that a Bid-Option Quote shall not be disregarded pursuant to clause (B)
or (C) above solely because it indicates that an allocation that might otherwise
be made to it pursuant to Section 3.4(g) would be unacceptable.
(e) Notice to Borrowers. The Administrative Agent shall promptly
notify the applicable Borrower of the terms (i) of any Bid-Option Quote
submitted by a Bank that is in accordance with subsection (d) of this Section
and (ii) of any Bid-Option Quote that amends, modifies or is otherwise
inconsistent with a previous Bid-Option Quote submitted by such Bank with
respect to the same Bid-Option Quote Request. Any such subsequent Bid-Option
Quote shall be disregarded by the Administrative Agent unless such subsequent
Bid-Option Quote is submitted solely to correct a manifest error in such former
Bid-Option Quote. The Administrative Agent's notice to the applicable Borrower
shall specify (i) the Dollar Equivalent of the aggregate principal amount of
Bid-Option Loans for which offers have been received for each Interest Period
specified in the related Bid-Option Quote Request and (ii) the respective Dollar
Equivalent of the principal amounts and respective Bid-Option Absolute Rates or
Bid-Option Eurodollar Rate Margins, as the case may be, so offered.
(f) Acceptance and Notice by Borrowers. Not later than 10:00 a.m.
(Detroit time) on (i) the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii) the third
Business Day prior to the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the second
Business Day prior to the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Alternate Currency Bid-Option Loans, the applicable Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e) of this Section 3.4. In the
case of acceptance, such notice (a "Notice of Bid-Option Borrowing") shall
specify the aggregate principal amount of accepted offers for the applicable
Interest Period(s). The applicable Borrower may accept any Bid-Option Quote in
whole or in part; provided that:
(A) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing may not exceed
the applicable amount set forth in the related Bid-Option Quote
Request;
(B) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing must be (1) in
the case of Dollar Bid-Option Borrowings,
$25,000,000 or a larger multiple of $5,000,000, unless
the aggregate amount of the related Bid-Option Loans
for which Bid-Option Quotes were received is less than
$25,000,000, in which case the aggregate principal
amount of the Dollar Bid-Option Borrowing may be
any amount less than $25,000,000, and (2) in the case
of Alternate Currency Bid-Option Loans, not less than
$5,000,000 (or, if less, the aggregate amount of the
33
related Bid-Option Loans for which Bid-Option
Quotes were received);
(C) acceptance of offers may only be made on the
basis of ascending Bid-Option Absolute Rates or Bid-
Option Eurodollar Rate Margins, as the case may be;
and
(D) a Borrower may not accept any offer that is
described in clause (iii) of subsection (d) of this Section
or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Banks with the same Bid-Option Absolute Rates or Bid-Option Eurodollar
Rate Margins, as the case may be, for a greater aggregate principal amount than
the amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Bid-Option Loans in respect of which such offers
are accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not greater than the Dollar Equivalent of
$500,000, as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers (excluding any Bank that has indicated
in its offer that an allocation which otherwise would be made to it is
unacceptable). Determinations by the Administrative Agent of the amounts of
Bid-Option Loans shall be conclusive in the absence of manifest error.
3.5 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Sections 8.1 8.2 and 8.3,
from and including the date of this Agreement and prior to the Termination Date,
the Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans in Dollars to the Borrowers from time to
time in an amount not to exceed the lesser of (i) $25,000,000 (minus the
outstanding principal balance of all Swing Line Loans then outstanding) or (ii)
an amount equal to the aggregate amount of the Revolving Credit Commitments
minus the outstanding principal balance of the Revolving Loans minus the Letter
of Credit Obligations Amount minus the outstanding principal balance of the Bid-
Option Loans minus the outstanding principal balance of all Swing Line Loans at
such time minus the outstanding principal balance of the Alternate Currency
Syndicated Loans at such time, in each case after giving effect to the
application of the proceeds of any Swing Line Loans made at such time (using for
purposes of such determination, in the case of any Alternate Currency Loans, the
Dollar Equivalent determined on the last Business Day of the month then most
recently ended). Each Swing Line Loan shall be in a minimum amount of not less
than $1,000,000 (or such lesser amount as may be agreed to by the Swing Line
Bank) or an integral multiple of $1,000,000 (or such lesser amount as may be
agreed to by the Swing Line Bank) in excess thereof, and all interest payable on
the Swing Line Loans shall be payable to the Swing Line Bank for its account.
34
(b) Borrowing Notice. The applicable Borrower shall deliver to the
Administrative Agent and the Swing Line Bank a Borrowing Notice in substantially
the form attached hereto as Exhibit C-2 ("Notice of Swing Line Borrowing")
signed by it not later than 2:00 p.m. (Detroit time) (or such later time as
shall be agreed upon between such Borrower and the Swing Line Bank) on the
Borrowing Date of each Swing Line Loan specifying (i) the applicable Borrowing
Date (which shall be a Business Day) and (ii) the aggregate amount of the
requested Swing Line Loan. The Swing Line Loans shall at all times be at rates
agreed to between the applicable Borrower and the Swing Line Bank.
(c) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Loan Notes and each Swing Line Loan shall be paid in
full on or before the sixth Business Day after the Borrowing Date for such Swing
Line Loan (or such longer period as may be agreed to by the Swing Line Bank).
Outstanding Swing Line Loans may be repaid from the proceeds of Revolving Loans
or Swing Line Loans. Any repayment of a Swing Line Loan shall be accompanied by
accrued interest thereon and shall be in the minimum amount of $1,000,000 (or
such lesser amount as may be agreed to by the Swing Line Bank) and in increments
of $1,000,000 (or such lesser amount as may be agreed to by the Swing Line Bank)
in excess thereof or the full amount of such Swing Line Loan. If the applicable
Borrower at any time fails to repay a Swing Line Loan on the applicable date
when due, the applicable Borrower shall be deemed to have elected to borrow a
Floating Rate Loan under Section 3.1 as of such date equal in amount to the
unpaid amount of such Swing Line Loan (notwithstanding the minimum amount of
Floating Rate Loans as provided in Section 3.1). The proceeds of any such Loan
shall be used to repay such Swing Line Loan. Unless the Administrative Agent
upon the request of or with the consent of the Required Banks shall have
notified the Swing Line Bank prior to making any Swing Line Loan, that the
applicable conditions precedent set forth in Article VIII have not then been
satisfied, each Bank's obligation to make Loans pursuant to Section 3.1 and to
repay such Swing Line Loan pursuant to this Section 3.5 shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including the occurrence or continuance of a Default. In the
event that any Bank fails to make payment to the Administrative Agent of any
amount due under this Section 3.5(c), the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Bank hereunder until the Administrative Agent receives
such payment from such Bank or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Bank fails to make payment to
the Administrative Agent of any amount due under this Section 3.5(c), such Bank
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest in and participation in the Swing
Line Loan in the amount of the Loan such Bank was required to make pursuant to
this Section 3.5(c) and such interest and participation may be recovered from
such Bank together with interest thereon at the Federal Funds Rate for each day
during the period commencing on the date of demand by the Administrative Agent
and ending on the date such obligation is fully satisfied.
3.6 Alternate Currency Syndicated Loans.
35
