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EXHIBIT 10.2
EXECUTION COPY
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$1,400,000,000
INTERIM TERM LOAN AGREEMENT
Dated as of May 4, 1999
among
XXXX CORPORATION,
The Lenders Party Hereto,
CITICORP USA, INC.
and
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agents,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Documentation Agent,
The Other Agents Named
in Schedule IX Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
as Sole Book Manager and Sole Lead Arranger
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................19
SECTION 2. AMOUNT AND TERMS OF INTERIM TERM LOAN
COMMITMENTS.............................................................................19
2.1 Interim Term Loan Commitments......................................................................19
2.2 Repayment of Interim Term Loans; Evidence of Debt..................................................19
2.3 Procedure for Interim Term Loan Borrowing..........................................................20
SECTION 3. GENERAL PROVISIONS APPLICABLE TO INTERIM TERM LOANS..................................................21
3.1 Interest Rates and Payment Dates...................................................................21
3.2 Conversion and Continuation Options................................................................21
3.3 Minimum Amounts of Tranches........................................................................22
3.4 Optional and Mandatory Prepayments.................................................................22
3.5 Fees ...........................................................................................23
3.6 Computation of Interest............................................................................23
3.7 Inability to Determine Interest Rate...............................................................23
3.8 Pro Rata Treatment and Payments....................................................................24
3.9 Illegality.........................................................................................25
3.10 Requirements of Law...............................................................................25
3.11 Indemnity.........................................................................................27
3.12 Taxes ...........................................................................................27
3.13 Use of Proceeds...................................................................................29
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................................29
4.1 Financial Statements...............................................................................29
4.2 No Change..........................................................................................29
4.3 Corporate Existence; Compliance with Law...........................................................29
4.4 Corporate Power; Authorization; Enforceable Obligations............................................30
4.5 No Legal Bar; Senior Debt..........................................................................30
4.6 No Material Litigation.............................................................................31
4.7 No Default.........................................................................................31
4.8 Ownership of Property; Liens.......................................................................31
4.9 Taxes ...........................................................................................31
4.10 Securities Law, etc. Compliance...................................................................32
4.11 ERISA ...........................................................................................32
4.12 Investment Company Act; Other Regulations.........................................................32
4.13 Subsidiaries, etc. ...............................................................................32
4.14 Accuracy and Completeness of Information..........................................................33
4.15 Security Documents................................................................................33
4.16 Patents, Copyrights, Permits and Trademarks.......................................................33
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4.17 Environmental Matters.............................................................................33
4.18 Year 2000 Matters.................................................................................35
SECTION 5. CONDITIONS PRECEDENT.................................................................................35
5.1 Conditions to Closing Date.........................................................................35
5.2 Additional Conditions to Interim Term Loans........................................................37
SECTION 6. AFFIRMATIVE COVENANTS......................................................................37
6.1 Financial Statements...............................................................................37
6.2 Certificates; Other Information....................................................................38
6.3 Performance of Obligations.........................................................................39
6.4 Conduct of Business, Maintenance of Existence and Compliance with Obligations
and Laws...................................................................................39
6.5 Maintenance of Property; Insurance.................................................................39
6.6 Inspection of Property; Books and Records; Discussions.............................................39
6.7 Notices ...........................................................................................40
6.8 Maintenance of Liens of the Security Documents.....................................................41
6.9 Environmental Matters..............................................................................41
6.10 Security Documents; Guarantee Supplement..........................................................42
SECTION 7. NEGATIVE COVENANTS...................................................................................43
7.1 Financial Covenants................................................................................43
7.2 Limitation on Indebtedness.........................................................................44
7.3 Limitation on Liens................................................................................45
7.4 Limitation on Guarantee Obligations................................................................47
7.5 Limitations on Fundamental Changes.................................................................47
7.6 Limitation on Sale of Assets.......................................................................48
7.7 Limitation on Dividends............................................................................49
7.9 Limitation on Investments, Loans and Advances......................................................50
7.10 Limitation on Optional Payments and Modification of Debt Instruments; Certain
Derivative Transactions....................................................................52
7.11 Transactions with Affiliates......................................................................52
7.12 Corporate Documents...............................................................................52
7.13 Fiscal Year.......................................................................................52
7.14 Limitation on Restrictions Affecting Subsidiaries.................................................53
7.15 Special Purpose Subsidiary........................................................................53
7.16 Interest Rate Agreements..........................................................................53
SECTION 8. EVENTS OF DEFAULT....................................................................................53
SECTION 9. THE ADMINISTRATIVE AGENT; THE MANAGING
AGENTS, DOCUMENTATION AGENT AND
SYNDICATION AGENTS....................................................................56
9.1 Appointment........................................................................................56
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9.2 Delegation of Duties...............................................................................57
9.3 Exculpatory Provisions.............................................................................57
9.4 Reliance by Administrative Agent...................................................................57
9.5 Notice of Default..................................................................................58
9.6 Non-Reliance on Administrative Agent and Other Lender..............................................58
9.7 Indemnification....................................................................................58
9.8 Administrative Agent in its Individual Capacity....................................................59
9.9 Successor Administrative Agent.....................................................................59
9.11 Actions Under Security Documents..................................................................59
9.12 Intercreditor Agreement...........................................................................60
SECTION 10. MISCELLANEOUS.......................................................................................60
10.1 Amendments and Waivers............................................................................60
10.2 Notices...........................................................................................61
10.3 No Waiver; Cumulative Remedies....................................................................61
10.4 Survival of Representations and Warranties........................................................62
10.5 Payment of Expenses and Taxes.....................................................................62
10.6 Successors and Assigns; Participations and Assignments............................................62
10.7 Adjustments; Set-Off..............................................................................65
10.8 Intercreditor Agreement. The Administrative Agent is hereby authorized to enter into an
intercreditor agreement, in form and substance reasonably satisfactory to it, to allow up to
$75,000,000 in loans outstanding on the Closing Date and owing to Deutsche Bank AG New York
Branch and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their respective
affiliates, to be equally and ratably secured by the Collateral and to benefit from
guarantees from the Subsidiary Guarantors on a basis which is pari passu with the Subsidiary
Guarantee....................................................................................66
10.9 Counterparts......................................................................................66
10.10 Severability.....................................................................................66
10.11 Integration......................................................................................66
10.12 GOVERNING LAW....................................................................................66
10.13 Submission to Jurisdiction; Waivers..............................................................66
10.14 Acknowledgements.................................................................................67
10.15 WAIVERS OF JURY TRIAL............................................................................67
10.16 [Reserved].......................................................................................67
10.17 [Reserved].......................................................................................67
10.18 Release of Collateral and Guarantees.............................................................67
10.19 [Reserved].......................................................................................68
10.20 Confidentiality..................................................................................68
10.21 Conflicts........................................................................................69
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SCHEDULES:
I Commitments; Addresses
II [Reserved]
III [Reserved]
IV Security Documents
V [Reserved]
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
IX Agents
EXHIBITS:
A Form of Note
B [Reserved]
C [Reserved]
D [Reserved]
E [Reserved]
F [Reserved]
G [Reserved]
H [Reserved]
I [Reserved]
J [Reserved]
K Form of Assignment and Acceptance
L Form of Opinion of Winston & Xxxxxx
M [Reserved]
N [Reserved]
O Form of Subsidiary Guarantee
P Form of Intercreditor Agreement
Q Form of Pledge Agreement
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INTERIM TERM LOAN AGREEMENT, dated as of May 4, 1999, among
XXXX CORPORATION, a Delaware corporation (the "Borrower"), the Managing Agents
named on Schedule IX hereof (the "Managing Agents"), the several banks and other
financial institutions from time to time parties hereto (the "Lenders"),
CITICORP USA, INC. and CREDIT SUISSE FIRST BOSTON, as co-syndication agents (the
"Co-Syndication Agents"), DEUTSCHE BANK AG NEW YORK BRANCH, as documentation
agent (the "Documentation Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "Administrative Agent"), as
administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower is a party to the UT Automotive
Acquisition Agreement (as defined below) pursuant to which the Borrower (or a
Subsidiary designated by it) will consummate the UT Automotive Acquisition (as
defined below); and
WHEREAS, in order to finance a portion of the purchase price
of the UT Automotive Acquisition, the Borrower has requested the Lenders to make
available the interim term loan facility described herein, and the Lenders are
willing to make such facility available upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": Interim Term Loans, the rate of interest
applicable to which is based upon the Alternate Base Rate.
"Acquired Indebtedness": Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary
of the Borrower or assumed in connection with the acquisition of assets
from such Person and not incurred by such Person in contemplation of
such Person becoming a Subsidiary of the Borrower or such acquisition,
and any refinancings thereof.
"Administrative Agent": Chase, together with its affiliates,
as arranger of the Commitments and as Administrative Agent for the
Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 9.9.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly,
is in control of, is controlled by,
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or is under common control with, such Person or (b) any other Person
who is a director or executive officer of (i) such Person, (ii) any
Subsidiary of such Person (other than a Wholly Owned Subsidiary) or
(iii) any Person described in clause (a) above. For purposes of this
definition, a Person shall be deemed to be "controlled by" such other
Person if such other Person possesses, directly or indirectly, power
either to (A) vote 10% or more of the securities having ordinary voting
power for the election of directors of such first Person or (B) direct
or cause the direction of the management and policies of such first
Person whether by contract or otherwise.
"Agreement": this Interim Term Loan Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b)
above, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the
U.S. Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in
the U.S. Prime Rate or the Federal Funds Effective Rate, respectively.
"Amended and Restated Credit Agreement": the Second Amended
and Restated Credit and Guarantee Agreement, dated as of May 4, 1999,
among the Borrower, certain Foreign Subsidiaries parties thereto, the
lenders parties thereto, Chase, as administrative agent, and others, as
the same may be amended, supplemented or otherwise modified from time
to time, and any Refinancing Agreement in respect thereof.
"Applicable Margin": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
Rating Applicable Margin
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Rating I .75%
Rating II 1.00%
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Rating III 1.25%;
provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
and related compliance certificate for the fiscal quarter ending
September 30, 1999 pursuant to subsections 6.1 and 6.2, the Applicable
Margin shall be that set forth above opposite Rating III.
"Asset Sale": any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or other dispositions)
of assets which yields Net Cash Proceeds to the Borrower or any of its
Subsidiaries in excess of $100,000,000; provided, that any sale, lease,
transfer or other disposition permitted by paragraphs (a) through (i)
of subsection 7.6 shall not constitute an Asset Sale.
"Assignee": as defined in subsection 10.6(c).
"Benefitted Lender": as defined in subsection 10.7.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of up to an aggregate principal amount of
$1,400,000,000 of senior unsecured debt securities to be issued by the
Borrower, all or a portion of the proceeds of which will be used to
repay in full the Interim Term Loans.
"Borrower": as defined in the preamble hereto.
"Business Day": any day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the Canadian
Government or any agency or instrumentality thereof having maturities
of not more than twelve months from the date of acquisition, (b)
securities issued or unconditionally guaranteed or insured by any state
of the United States of America or province of Canada or any agency or
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest
ratings obtainable from either S&P or Xxxxx'x, (c) time deposits,
certificates of deposit and bankers' acceptances having maturities of
not more than twelve months from the date of acquisition, in each case
with any Lender or with any commercial bank organized under the laws of
the United States of America or any state
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thereof or the District of Columbia, Japan, Canada or any member of the
European Economic Community or any U.S. branch of a foreign bank having
at the date of acquisition capital and surplus of not less than
$100,000,000, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(a), (b) and (c) entered into with any bank meeting the qualifications
specified in clause (c) above, (e) commercial paper issued by the
parent corporation of any Lender and commercial paper rated, at the
time of acquisition, at least A-1 or the equivalent thereof by S&P or
P-1 or the equivalent thereof by Xxxxx'x and in either case maturing
within twelve months after the date of acquisition, (e) deposits
maintained with money market funds having total assets in excess of
$300,000,000, (f) demand deposit accounts maintained in the ordinary
course of business with banks or trust companies, (g) temporary
deposits, of amounts received in the ordinary course of business
pending disbursement of such amounts, in demand deposit accounts in
banks outside the United States and (h) deposits in mutual funds which
invest substantially all of their assets in preferred equities issued
by U.S. corporations rated at least AA (or the equivalent thereof) by
S&P.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 5.1 shall have been satisfied or
waived and the Interim Term Loans are made.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet of
the Borrower and its Subsidiaries as at such date, determined in
accordance with GAAP.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the Borrower and its Subsidiaries which would be
included under indebtedness on a consolidated balance sheet of the
Borrower and its Subsidiaries as at such date, determined in accordance
with GAAP, less any cash of the Borrower and its Subsidiaries as at
such date.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated
income statement of the Borrower and its Subsidiaries for such period;
provided, that Consolidated Interest Expense for any period shall (a)
exclude (i) fees payable in respect of such period under subsection 3.5
of this Agreement and similar fees payable in respect of such period
under the Other Credit Agreements, and (ii)
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any amortization or write-off of deferred financing fees during such
period and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the Borrower and its
Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with GAAP; provided that (a) any provision for
post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the
"pay as you go" basis, shall not to be taken into account, and (b)
there shall be excluded (i) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary, (ii) the income (or
deficit) of any Person (other than a Subsidiary) in which the Borrower
or any Subsidiary has an ownership interest, except to the extent that
any such income has been actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions, (iii) the
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation or Requirement of Law (other than (a) prior to January 1,
2000, any Contractual Obligation or Requirement of Law in effect on the
Closing Date affecting Subsidiaries acquired in the UT Automotive
Acquisition, and (b) any Requirement of Law of Germany) applicable to
such Subsidiary, and (iv) in the case of a successor to the Borrower or
any Subsidiary by consolidation or merger or as a transferee of its
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; provided, further that the
exclusions in clauses (i) and (iv) of this definition shall not apply
to the mergers or consolidations of the Borrower or its Subsidiaries
with their respective Subsidiaries.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary
gains and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses (including the
restructuring and related charges in the amount of $133,000,000
recorded by the Borrower in the fourth quarter of fiscal year 1998),
(b) charges, premiums and expenses associated with the discharge of
Indebtedness, (c) charges relating to FAS 106, (d) license fees (and
any write-offs thereof), (e) stock compensation expense, (f) deferred
financing fees (and any write-offs thereof), (g) write-offs of
goodwill, (h) foreign exchange gains and losses, (i) miscellaneous
income and expenses and (j) miscellaneous gains and losses arising from
the sale of assets plus, to the extent deducted in determining
Consolidated Net Income, the excess of (i) the sum of (A) Consolidated
Interest Expense, (B) any expenses for taxes, (C) depreciation and
amortization expense and (D) minority interests in income of
Subsidiaries over (ii) net equity earnings in Affiliates (excluding
Subsidiaries). For purposes of calculating the ratio set forth in
subsection 7.1(b), Consolidated Operating Profit for any fiscal period
shall in any event include the Consolidated Operating Profit for such
fiscal period of any entity acquired by the Borrower or any of its
Subsidiaries during such period; and for purposes of calculating the
ratio set forth in subsections 7.1(a) and 10.18 for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99,
12/31/99 and 3/31/00, Consolidated
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Operating Profit shall include the Consolidated Operating Profit during
such periods of the entities acquired by the Borrower in the UT
Automotive Acquisition.
"Consolidated Revenues": for any fiscal period, the
consolidated revenues of the Borrower and its Subsidiaries for such
period, determined in accordance with GAAP.
"Continuing Directors": the directors of the Borrower on the
Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Co-Syndication Agents": as defined in the preamble hereto.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement designed to protect the Borrower
or any Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the
Borrower or any Subsidiary to any financial institution under any one
or more Currency Agreements.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
"Domestic Loan Party": each Loan Party that is organized under
the laws of any jurisdiction of the United States.
"Domestic Pledge Agreements": the collective reference to all
Pledge Agreements pursuant to which the Capital Stock of any Domestic
Subsidiary is pledged.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
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"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any Environmental
Laws or legal liability resulting from air emissions, water discharges,
noise emissions, Hazardous Material or any other environmental, health
or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority and any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of
conduct concerning pollution or protection of the environment or the
Release or threatened Release of Hazardous Materials, as now or
hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Liabilities": at any time, the aggregate of the
rates (expressed as a decimal fraction) of any reserve requirements in
effect at such time (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
"Eurodollar Loans": Interim Term Loans, the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Administrative Agent by each of the U.S.
Reference Lenders as the rate at which such U.S. Reference Lender is
offered Dollar deposits at or about 10:00 a.m., New York City time, two
Business Days prior to the beginning of such Interest Period,
(a) in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect
of its Eurodollar Loans then are being conducted,
(b) for delivery on the first day of such Interest
Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
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"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a consolidated
balance sheet of the Borrower and its Subsidiaries and (b) any other
such lease to the extent that the then present value of the minimum
rental commitment thereunder should, in accordance with GAAP, be
capitalized on a balance sheet of the lessee.
"Foreign Subsidiaries": each of the Subsidiaries so designated
on Schedule VI and any Subsidiaries organized outside the United States
which are created or acquired after the effectiveness hereof.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of
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any Guarantee Obligation shall be deemed to be an amount equal to the
value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made (unless such Guarantee Obligation shall be expressly
limited to a lesser amount, in which case such lesser amount shall
apply) or, if not stated or determinable, the value as of any date of
determination of the maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith.
"Guarantor Supplement": a supplement to the Subsidiary
Guarantee, substantially in the form of Annex A to the Subsidiary
Guarantee, whereby a Subsidiary of the Borrower becomes a "Guarantor"
under the Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, petroleum or petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea- formaldehyde insulation, and any
other substance the presence of which may give rise to liability under
any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor, (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face amount
of all letters of credit issued for the account of such person and,
without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or interest)
of such Person in respect of acceptances or similar obligations issued
or created for the account of such Person; but excluding (i) trade and
other accounts payable in the ordinary course of business in accordance
with customary trade terms and which are not overdue for more than 120
days or, if overdue for more than 120 days, as to which a dispute
exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, (ii) deferred compensation
obligations to employees and (iii) any obligations otherwise
constituting Indebtedness the payment of which such Person has provided
for pursuant to the terms of such Indebtedness or any agreement or
instrument pursuant to which such Indebtedness was incurred, by the
irrevocable deposit in trust of an amount of funds or a principal
amount of securities, which deposit is sufficient, either by itself or
taking into account the accrual of interest thereon, to pay the
principal of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the Borrower or its Subsidiaries and in respect of
which the U.S. Borrower or its Subsidiaries will be the source of
repayment.
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"Insolvency": with respect to any Multiemployer Plan, the
condition that such
Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement,
substantially in the form of Exhibit P, to be entered into pursuant to
subsection 10.8, as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as
to any Eurodollar Loan having an Interest Period longer than three
months, (i) each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and (ii) the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, and if
deposits for such longer Interest Periods are available to all Lenders
(as determined by the Lenders), nine or twelve months thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, and if deposits for
such longer Interest Periods are available to all Lenders (as
determined by the Lenders), nine or twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Maturity Date shall end on the Maturity
Date; and
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(iii) any 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 at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement
(other than any interest rate cap or other similar agreement or
arrangement pursuant to which the Borrower has no credit exposure), to
or under which the Borrower or any of its Subsidiaries is a party or a
beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
Borrower or any Subsidiary to any financial institution under any one
or more Interest Rate Agreements.
"Interim Term Loan": as defined in subsection 2.1.
"Interim Term Loan Commitment": as to any Lender at any time,
its obligation to make an Interim Term Loan to the Borrower in a
principal amount not to exceed the amount set forth opposite such
Lender's name in Schedule I.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above BBB- from S&P and at or above Baa3 from Moody's; if
either of S&P or Moody's shall change its system of classifications
after the date of this Agreement, Investment Grade Status shall exist
at any time when the actual or implied rating of the Borrower's senior
long-term unsecured debt is at or above the new rating which most
closely corresponds to the above-specified level under the previous
rating system.
"Xxxx Germany": Xxxx Corporation Beteiligungs GmbH.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date without
compliance with subsection 10.6(c).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement or
any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes and the Security Documents.
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"Loan Parties": the collective reference to the Borrower, each
guarantor or grantor party to any Security Document and each issuer of
pledged stock under each Pledge Agreement.
"Majority Lenders": (a) at any time prior to the Closing Date,
Lenders holding more than 50% of the amount of the Interim Term Loan
Commitments and (b) at any time after the Closing Date, Lenders holding
more than 50% of the principal amount of the outstanding Interim Term
Loans.
"Managing Agents": as defined on Schedule IX.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the Borrower
accounted for more than 10% of Consolidated Revenues or (b) as of the
end of such fiscal year, was the owner of more than 10% of Consolidated
Assets, all as shown on the consolidated financial statements of the
Borrower for such fiscal year.
"Maturity Date": May 3, 2000.
"Moody's": Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien permitted
hereunder on any asset which is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof, and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence
of loans, the cash proceeds received from such issuance or incurrence,
net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Net Proceeds": shall mean the gross proceeds received by the
Borrower or any Subsidiary from a sale or other disposition of any
asset of the Borrower or such Subsidiary less (a) all reasonable fees,
commissions and other out-of-pocket expenses incurred by the Borrower
or such Subsidiary in connection therewith, (b) Federal, state, local
and foreign taxes assessed in connection therewith and (c) the
principal amount,
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accrued interest and any related prepayment fees of any Indebtedness
(other than the Loans) which is secured by any such asset and which is
required to be repaid in connection with the sale thereof.
"New Revolving Credit Agreement": the Revolving Credit and
Term Loan Agreement, dated as of May 4, 1999, among the Borrower,
certain of its Foreign Subsidiaries, the lenders parties thereto,
Chase, as administrative agent, and others, as the same may be amended,
supplemented or otherwise modified from time to time, and any
Refinancing Agreement in respect thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as
of July 1, 1996, between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 7.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of
the Borrower due 2006, issued pursuant to the 9 1/2% Subordinated Note
Indenture.
"Note": as defined in subsection 2.2.
"Obligations": collectively, the unpaid principal of and
interest on the Interim Term Loans, Interest Rate Agreement Obligations
to any Lender, Currency Agreement Obligations to any Lender and all
other obligations and liabilities of the Borrower under or in
connection with this Agreement and the other Loan Documents (including,
without limitation, interest accruing at the then applicable rate
provided in this Agreement or any other applicable Loan Document after
the maturity of the Interim Term Loans and interest accruing at the
then applicable rate provided in this Agreement or any other applicable
Loan Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, the Notes, the other Loan Documents or
any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be
paid by the Borrower pursuant to the terms of this Agreement or any
other Loan Document).
"Other Credit Agreements": the collective reference to the New
Revolving Credit Agreement and the Amended and Restated Credit
Agreement.
"Participants": as defined in subsection 10.6(b).
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or
similar agreement that may be delivered to the Administrative Agent as
collateral security for any or all of the Obligations of the Borrower
hereunder, and the obligations of the Borrower under the Other Credit
Agreements, in each case as such Pledge Agreements or similar
agreements may be amended, supplemented or otherwise modified from time
to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Property": each parcel of real property owned or operated by
the Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 4.16.
"Rating": the respective actual or implied rating of each of
the Rating Agencies applicable to the long-term senior unsecured debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Xxxxx'x.
"Rating Category": each of Rating I, Rating II and Rating III.
"Rating I, Rating II and Rating III": the respective Ratings
set forth below:
Rating
Category S&P Xxxxx'x
-------- --- -------
Rating I greater than or greater than or
equal to BBB equal to Baa2
Rating II BBB- Baa3
Rating III lower than or equal lower than or equal
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to BB+ to Ba1
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, the Rating Category of the
higher of such Ratings shall be
applicable for such day, (ii) if on any day the Rating of only one of
the Rating Agencies is available, then the Rating Category of such
Rating shall be applicable for such day and (iii) if on any day a
Rating is available from neither of the Rating Agencies, then Rating
III shall be applicable for such day. Any change in the applicable
Rating Category resulting from a change in the Rating of a Rating
Agency shall become effective on the date such change is publicly
announced by such Rating Agency. If at any time either of the Rating
Agencies shall change its system of classifications, the Ratings set
forth for each Rating Category shall be adjusted to correspond to the
new system of classifications.
"Receivable Financing Transaction": any transaction or series
of transactions involving a sale for cash of accounts receivable,
without recourse based upon the collectibility of the receivables sold,
by the Borrower or any of its Subsidiaries to a Special Purpose
Subsidiary and a subsequent sale or pledge of such accounts receivable
(or an interest therein) by such Special Purpose Subsidiary, in each
case without any guarantee by the Borrower or any of its Subsidiaries
(other than the Special Purpose Subsidiary).
"Recovery Event": the receipt by the Borrower or any of its
Subsidiaries of any insurance or any condemnation proceeds (i) by
reason of any theft, physical destruction or damage with respect to any
properties or assets of the Borrower or any of its Subsidiaries or (ii)
by reason of any condemnation, taking or similar event with respect to
any properties or assets of the Borrower or any of its Subsidiaries, in
each case which yields Net Cash Proceeds to the Borrower or any of its
Subsidiaries in excess of $100,000,000.
"Refinancing Agreement": with respect to the Amended and
Restated Credit Agreement or the New Revolving Credit Agreement, as the
case may be, a successor agreement satisfying the following criteria:
(a) such successor agreement refinances in whole, and replaces the
commitments under, the Amended and Restated Credit Agreement or the New
Revolving Credit Agreement, as the case may be, (b) either (i) the
covenants, representations and warranties and events of default set
forth in such successor agreement shall be equivalent to the
corresponding provisions set forth in the Amended and Restated Credit
Agreement or the New Revolving Credit Agreement, as the case may be or
(ii) to the extent such provisions are more restrictive on the Borrower
and its Subsidiaries than the provisions of this Agreement, the
Borrower shall, contemporaneously with entering into such Refinancing
Agreement, enter into with the Administrative Agent an amendment to
this Agreement reasonably satisfactory to the Administrative Agent
pursuant to which such more restrictive provisions shall be
incorporated herein (the Lenders hereby authorizing the Administrative
Agent to enter into such amendment), (c) such successor agreement shall
not be guaranteed by any Person other than the Subsidiary Guarantors
pursuant to the Subsidiary Guarantee and, if
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applicable, the Borrower and shall not be secured except pursuant to
the Security Documents and (d) the lenders under such successor
agreement (or an agent for such lenders) shall have entered into an
intercreditor agreement with the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent, which
shall, in any event, contain customary indemnities, liability
limitations, exculpation provisions and other customary protective
provisions in favor of the Administrative Agent, in its capacity as
Agent under (and as defined in) the Subsidiary Guarantee and the
Security Documents, substantially equivalent to those set forth in the
corresponding provisions of the Amended and Restated Credit Agreement
or the New Revolving Credit Agreement, as the case may be.
"Register": as defined in subsection 10.6(d).
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaking, dumping, disposing,
spreading, depositing or dispersing of any Hazardous Materials in, unto
or onto the environment.
"Release Status": shall exist at any time when the actual or
implied rating of the . Borrower's senior long-term unsecured debt is
at or above BBB- from S&P or at or above Baa3 from Xxxxx'x; if either
of S&P or Xxxxx'x shall change its system of classifications after the
date of this Agreement, Release Status shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above the new rating which most closely corresponds to
the above-specified level under the previous rating system.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under any of subsections .13, .14, .16, .18,
.19 or .20 of PBGC Reg. ss. 4043 or any successor regulation thereto.
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, and (b) any
property, any law, treaty, rule, regulation, requirement, judgment,
decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject,
including, without limitation, any Environmental Laws.
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"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Securities Act": the Securities Act of 1933, as amended.
"Securities Offering": the sale of Capital Stock or debt
securities of the Borrower pursuant to a public offering, Rule 144A or
a private placement, in either case that results in Net Cash Proceeds
to the Borrower of at least $100,000,000.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee and each other guarantee, security
document or similar agreement that may be delivered to the
Administrative Agent as collateral security for any or all of the
Obligations, in each case as amended, supplemented or otherwise
modified from time to time, including, without limitation, to give
effect to any Refinancing Agreement permitted hereunder.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor
thereto.
"Special Affiliate": any Affiliate of the Borrower (a) as to
which the Borrower holds, directly or indirectly, (i) power to vote 20%
or more of the securities having ordinary voting power for the election
of directors of such Affiliate or (ii) a 20% ownership interest in such
Affiliate and (b) which is engaged in business of the same or related
general type as now being conducted by the Borrower and its
Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the Borrower
and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of
the Borrower created by the Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the
Subordinated Notes and the 9 1/2% Subordinated Notes.
"Subordinated Debt Indentures": the collective reference to
the Subordinated Note Indenture and the 9 1/2% Subordinated Note
Indenture.
"Subordinated Note Indenture": the Indenture, dated as of
February 1, 1994, between the Borrower and State Street Bank and Trust
Company (as successor to The
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First National Bank of Boston), as trustee, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
subsection 7.10.
"Subordinated Notes": the 8 1/4% Subordinated Notes of the
Borrower due 2002, issued pursuant to the Subordinated Note Indenture.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both, by
such Person (exclusive of any Affiliate in which such Person has a
minority ownership interest). Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary and Secured Indebtedness": the collective
reference (without duplication) to (a) any Indebtedness of any
Subsidiary, other than Indebtedness permitted by paragraphs (a) through
(e) of subsection 7.2, (b) any Guarantee Obligation of any Subsidiary,
other than Guarantee Obligations permitted by paragraph (a) through (e)
of subsection 7.4, (c) any Indebtedness or Guarantee Obligation of any
Person that is secured by any Lien on any property, assets or revenues
of the Borrower or any of its Subsidiaries, other than Liens permitted
by paragraphs (a) through (n) of subsection 7.3. For purposes of clause
(b) of the preceding sentence, the amount of any Guarantee Obligation
shall be determined as set forth in the definition of "Guarantee
Obligation" in this subsection 1.1; and for purposes of clause (c) of
the preceding sentence, the amount of any Indebtedness or Guarantee
Obligation that is secured by a Lien on any property, assets or
revenues of the Borrower or any of its Subsidiaries shall equal the
lesser of (x) the amount of any such Indebtedness or Guarantee
Obligation and (y) the fair market value as of the date of
determination of the property, assets or revenues subject to such Lien.
At any time of determination, the amount of Subsidiary and Secured
Indebtedness outstanding shall be determined without duplication of any
other Subsidiary and Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
the date hereof, made by certain Subsidiaries of the Borrower in favor
of the Administrative Agent, substantially in the form of Exhibit O, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor
party to the Subsidiary Guarantee, so long as the Subsidiary Guarantee
remains in effect.
"Taxes": as defined in subsection 3.12(a).
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"Tranche": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such
Eurodollar Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Interim Term Loan, its nature as an ABR Loan
or a Eurodollar Loan.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City. The U.S. Prime
Rate is not intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to
borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"UT Automotive Acquisition": the acquisition by the Borrower
(or a Subsidiary as its designee) of the capital stock of Xxxx
Corporation Automotive Holdings, a Delaware corporation formerly known
as UT Automotive, Inc., and certain related entities, pursuant to the
UT Automotive Acquisition Agreement.
"UT Automotive Acquisition Agreement": the Stock Purchase
Agreement, dated as of March 16, 1999, between Nevada Bond Investment
Corp. II, a Nevada corporation, as Seller, and the Borrower (or a
Subsidiary as its designee), as Buyer, as amended, supplemented or
otherwise modified, and certain related agreements.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or
other entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by
such Person; provided, however, that so long as the Borrower owns,
directly or indirectly, more than 95% of the capital stock of Xxxx
Italia, Xxxx Italia shall be deemed a Wholly Owned Subsidiary of the
Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms
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partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF INTERIM TERM LOAN
COMMITMENTS
2.1 Interim Term Loan Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make a term loan (each,
an "Interim Term Loan") in U.S. Dollars to the Borrower on the Closing Date in a
principal amount not exceeding the Interim Term Loan Commitment of such Lender.
(b) The Interim Term Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 3.2.
2.2 Repayment of Interim Term Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Interim Term
Loan of such Lender on the Maturity Date and on such other date(s) and in such
other amounts as may be required from time to time pursuant to this Agreement.
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Interim Term Loans from time to time outstanding until payment
thereof in full at the rates per annum, and on the dates, set forth in
subsection 3.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from the Interim Term Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of the Interim Term Loan of each
Lender made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the date of each continuation thereof pursuant to subsection 3.2,
(iii) the date of each conversion of all or a portion thereof to another Type
pursuant to subsection 3.2, (iv) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of the Interim Term Loans and (v) both the date and
amount of any sum received by the Administrative Agent
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hereunder from the Borrower in respect of the Interim Term Loans and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the Borrower to repay (with applicable interest) the Interim Term
Loan made to the Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Interim Term Loan
of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (each, a "Note"); provided, that the
delivery of such Notes shall not be a condition precedent to the Closing Date.
2.3 Procedure for Interim Term Loan Borrowing. The Borrower
may borrow the Interim Term Loans on the Closing Date, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, at least (a) three Business Days prior to the Closing Date, if all or any
part of the Interim Term Loans are to be initially Eurodollar Loans, or (b) on
the Closing Date, otherwise), specifying in each case (i) the amount to be
borrowed, (ii) the anticipated Closing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Eurodollar Loans and the length of the initial Interest Period therefor. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Not later than 1:30 p.m., New York City
time, on the Closing Date each Lender shall make an amount equal to the
principal amount of the Interim Term Loan to be made by it available to the
Administrative Agent at its office specified in subsection 10.2 in U.S. Dollars
and in immediately available funds. The Administrative Agent shall on such date
credit the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO INTERIM TERM
LOANS
3.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
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(b) Each ABR Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Alternate Base Rate for such
day.
(c) If all or a portion of (i) the principal amount of any
Interim Term Loan, (ii) any interest payable thereon or (iii) any fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2%.
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
3.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the Administrative Agent at least one Business
Day's prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto unless the Borrower shall agree to pay the costs
associated therewith as set forth in subsection 3.11(d). The Borrower may elect
from time to time to convert outstanding ABR Loans (in whole or in part) to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
that (i) no ABR Loan may be converted into a Eurodollar Loan when any Default or
Event of Default has occurred and is continuing and the Administrative Agent or
the Majority Lenders have determined that such conversion is not appropriate,
(ii) any such conversion may only be made if, after giving effect thereto,
subsection 3.3 shall not have been violated and (iii) no ABR Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Eurodollar Loans determined in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, provided that no Eurodollar Loan may be continued as
such (i) when any Default or Event of Default has occurred and is continuing and
the Administrative Agent or the Majority Lenders have determined that such
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 3.3 would be contravened or (iii) after the date that is one month
prior to the Maturity Date, and provided, further, that if the Borrower shall
fail to give such notice or if such continuation is not permitted pursuant to
the preceding proviso such Eurodollar Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
3.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Interim Term Loans hereunder
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shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of the Eurodollar
Loans comprising each Tranche shall be equal to $10,000,000 or a whole multiple
of $1,000,000 in excess thereof and (ii) there shall not be more than 10
Tranches at any one time outstanding.
3.4 Optional and Mandatory Prepayments. (a) The Borrower may
at any time and from time to time prepay Interim Term Loans, in whole or in
part, without premium or penalty upon at least three Business Days' irrevocable
notice to the Administrative Agent (in the case of Eurodollar Loans) and at
least one Business Day's irrevocable notice to the Administrative Agent (in the
case of ABR Loans) specifying the date and amount of prepayment and whether the
prepayment of Interim Term Loans is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon the receipt of any such notice, the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Partial prepayments of the Interim Term Loans shall be in an aggregate principal
amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or in
such lower amount as may be then outstanding).
(b) On or before the third Business Day after receipt thereof
by the Borrower or any of its Subsidiaries, the Borrower shall prepay the
Interim Term Loans by an amount equal to 100% of the Net Cash Proceeds of any
Securities Offering.
(c) If the Borrower or any of its Subsidiaries receives Net
Cash Proceeds attributable to any Asset Sale or Recovery Event then on or before
the third Business Day following the receipt of such Net Cash Proceeds the
Interim Term Loans shall be prepaid by an amount equal to the amount of such Net
Cash Proceeds.
(d) Each prepayment of Interim Term Loans pursuant to this
subsection 3.4 shall be accompanied by accrued and unpaid interest on the amount
prepaid to the date of prepayment and any amounts payable under subsection 3.11
in connection with such prepayment.
3.5 Fees. (a) The Borrower shall pay (without duplication of
any other fee payable under this subsection 3.5) to Chase and CSI, for their
respective accounts, all fees separately agreed to by the Borrower and Chase or
CSI, as the case may be.
(b) The Borrower shall (without duplication of any other fee
payable under this subsection 3.5) pay to the Administrative Agent all fees
separately agreed to by the Borrower and the Administrative Agent.
3.6 Computation of Interest. (a) Interest based on the
Eurodollar Rate, or on the Alternate Base Rate when it is based on the Federal
Funds Effective Rate, shall be calculated on the basis of a 360-day year for the
actual days elapsed; and otherwise interest shall be calculated on the basis of
a 365- (or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on the Interim Term Loans
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resulting from a change in the Alternate Base Rate shall become effective as of
the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in the
Alternate Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate
pursuant to subsection 3.1(a).
(c) If any U.S. Reference Lender shall for any reason no
longer have any Interim Term Loans, such U.S. Reference Lender shall thereupon
cease to be a U.S. Reference Lender, and if, as a result, there shall only be
one U.S. Reference Lender remaining, the Administrative Agent, with the consent
of the Borrower (after consultation with Lenders) shall, by notice to the
Borrower and the Lenders, designate another Lender as a U.S. Reference Lender so
that there shall at all times be at least two U.S. Reference Lenders.
(d) Each U.S. Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the U.S. Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 3.7, be determined on
the basis of the quotations of the remaining U.S. Reference Lenders or U.S.
Reference Lender, as applicable.
3.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. Until such time as
the Eurodollar Rate can be determined by the Administrative Agent in the manner
specified in the definitions of such terms in subsection 1.1, no further
Eurodollar Loans shall be continued as such at the end of the then current
Interest Periods or (other than any Eurodollar Loans previously requested and
with respect to which the Eurodollar Rate was determined) shall be made, nor
shall the Borrower have the right to convert ABR Loans into Eurodollar Loans.
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3.8 Pro Rata Treatment and Payments. (a) (i) The borrowing of
Interim Term Loans by the Borrower from the Lenders hereunder shall be made pro
rata according to the respective Interim Term Loan Commitments of the Lenders.
Each payment by the Borrower on account of principal of or interest on the
Interim Term Loans shall be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts thereof. All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 10.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders entitled to receive the same promptly upon receipt in
like funds as received.
(ii) If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day
(and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to the Closing Date that such Lender will not
make the amount that would constitute its Interim Term Loan available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Closing Date, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate per
annum equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If the amount of such Lender's Interim Term Loan is
not made available to the Administrative Agent by such Lender within three
Business Days of the Closing Date, the Borrower shall repay such Lender's
Interim Term Loan (together with interest thereon from the date such amount was
made available to the Borrower at the rate per annum applicable to ABR Loans
hereunder) to the Administrative Agent not later than three Business Days after
receipt of written notice from the Administrative Agent specifying such Lender's
share of such borrowing that was not made available to the Administrative Agent.
Nothing contained in this subsection 3.8(b) shall prejudice any claims otherwise
available to the Borrower against any Lender as a result of such Lender's
failure to make its share of any borrowing available to the Administrative Agent
for the account of the Borrower.
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3.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until such
time as it shall no longer be unlawful for such Lender to make or maintain the
affected Loans and (b) such Lender's Loans then outstanding as Eurodollar Loans,
if any, shall be converted automatically to ABR Loans on the respective last
days of the then current Interest Periods with respect to such Eurodollar Loans
or within such earlier period as may be required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 3.11.
3.10 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, such Lender's Note or
Interim Term Loan, or change the basis of taxation of payments to such
Lender of principal, fees, interest or any other amount payable
hereunder (except for taxes covered by subsection 3.12 and changes in
the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate,
including, without limitation, the imposition of any reserves with
respect to Eurocurrency Liabilities under Regulation D of the Board; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Interim Term Loan, then, in any such
case, the Borrower shall promptly pay such Lender, upon receipt of its demand
setting forth in reasonable detail, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount receivable,
such additional amounts together with interest on each such amount from the date
two Business Days after the date demanded until payment in full thereof at the
Alternate Base Rate. A certificate as to any additional amounts payable pursuant
to the foregoing sentence submitted by such Lender, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of all
amounts outstanding hereunder.
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(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application thereof)
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline, does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation would have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall promptly pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) If the obligation of any Lender to make Eurodollar Loans
has been suspended pursuant to subsection 3.7 or 3.9 for more than three
consecutive months or any Lender has demanded compensation under subsection
3.10(a) or 3.10(b), the Borrower shall have the right to substitute a financial
institution or financial institutions (which may be one or more of the Lenders)
reasonably satisfactory to the Administrative Agent by causing such financial
institution or financial institutions to purchase the rights (by paying to such
Lender the principal amount of its outstanding Interim Term Loan together with
accrued interest thereon and all other amounts accrued for its account or owed
to it hereunder and executing an Assignment and Acceptance) and to assume the
obligations of such Lender under the Loan Documents. Upon such purchase and
assumption by such substituted financial institution or financial institutions,
the obligations of such Lender hereunder shall be discharged; provided such
Lender shall retain its rights hereunder with respect to periods prior to such
substitution including, without limitation, its rights to compensation under
this subsection 3.10.
3.11 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in payment
when due of the principal amount of or interest on any Interim Term Loan of such
Lender, (b) default by such Borrower in making a borrowing or conversion after
the Borrower has given a notice of borrowing or a notice of conversion in
accordance with this Agreement, (c) default by such Borrower in making any
prepayment after such Borrower has given a notice in accordance with this
Agreement, or (d) the making of a prepayment of a Eurodollar Loan on a day which
is not the last day of an Interest Period with respect thereto, including,
without limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained, including, without limitation, in
each case, any such loss or expense arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans hereunder or from fees payable
to terminate the deposits from which such funds were obtained. A certificate as
to any such loss or expense submitted by such Lender shall be conclusive, absent
manifest error. This covenant shall survive termination of this Agreement and
payment of all amounts outstanding hereunder.
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3.12 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Administrative Agent and each Lender,
income or franchise taxes imposed on the Administrative Agent or such Lender by
the jurisdiction under the laws of which the Administrative Agent or such Lender
is organized or any political subdivision or taxing authority thereof or therein
or by any jurisdiction in which such Lender's lending office is located or any
political subdivision or taxing authority thereof or therein or as a result of a
connection between such Lender and any jurisdiction other than a connection
resulting solely from entering into this Agreement (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being thereinafter called
"Taxes"). Subject to the provisions of subsection 3.12(c), if any Taxes are
required to be withheld from any amounts payable by the Borrower to the
Administrative Agent or any Lender hereunder or under the Notes, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are paid by the Borrower with respect to payments made in connection
with this Agreement, as promptly as possible thereafter, the Borrower shall send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. Subject to the provisions of
subsection 3.12(c), if the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lenders as a result of any such failure.
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America or a state thereof agrees that, prior
to the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the Borrower and the Administrative Agent (i) two
valid, duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments by the Borrower under this
Agreement and the Notes payable to it, without deduction or withholding of any
United States federal income taxes, and (ii) a valid, duly completed Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. Each
Lender which delivers to the Borrower and the Administrative Agent a Form 1001
or 4224 and Form W-8 or W-9 pursuant to the next preceding sentence further
undertakes to deliver to the Borrower and the Administrative Agent two further
copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner or certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or otherwise is
required to be resubmitted as a condition to obtaining an exemption from
withholding tax, or after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Borrower, and such extensions
or renewals thereof as may
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reasonably be requested by the Borrower, certifying in the case of a Form 1001
or 4224 or successor applicable form that such Lender is entitled to receive
payments by the Borrower under this Agreement without deduction or withholding
of any United States federal income taxes, unless any change in treaty, law or
regulation or official interpretation thereof has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the Borrower that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax, and in the case of a Form
W-8 or W-9 or successor applicable form, establishing an exemption from United
States backup withholding tax (it being agreed that final and temporary Treasury
Regulations promulgated in T.O. 8734 shall not constitute a change in law,
regardless of their effective date).
(c) The Borrower shall not be required to pay any additional
amounts to the Administrative Agent or any Lender (or Transferee except to the
extent such Transferee's transferor was entitled, at the time of transfer, to
receive additional amounts from the Borrower) in respect of Taxes pursuant to
subsection 3.12(a) if the obligation to pay such additional amounts would not
have arisen but for a failure by the Administrative Agent or such Lender (or
Transferee) to comply with the requirements of subsection 3.12(b) or (c) (or in
the case of a Transferee, the requirements of subsection 10.6(h)).
(d) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection 3.12;
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(e) The agreements in subsection 3.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the expiration of the applicable statute of limitations
for such taxes.
3.13 Use of Proceeds. The proceeds of the Interim Term Loans
shall be used to pay a portion of the consideration for the UT Automotive
Acquisition.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Interim Term Loans, the Borrower hereby represents and warrants to the
Administrative Agent and to each Lender that:
4.1 Financial Statements. The audited consolidated balance
sheets of the Borrower as of December 31, 1998 and the related statements of
income and cash flow for the fiscal year ending on such date, heretofore
furnished to the Administrative Agent and the Lenders and certified by a
Responsible Officer of the Borrower are complete and correct in all material
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respects and fairly present the financial condition of the Borrower on such date
in conformity with GAAP applied on a consistent basis (subject to normal
year-end adjustments). All liabilities, direct and contingent, of the Borrower
on such date required to be disclosed pursuant to GAAP are disclosed in such
financial statements.
4.2 No Change. There has been no material adverse change in
the business, operations, assets or financial or other condition of the Borrower
and its Subsidiaries taken as a whole from that reflected on the financial
statements dated December 31, 1998 referred to in subsection 4.1.
4.3 Corporate Existence; Compliance with Law. The Borrower and
each of its Material Subsidiaries (a) is duly organized, validly existing and in
good standing (or the functional equivalent thereof in the case of Foreign
Subsidiaries) under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing (or the functional equivalent thereof in the
case of Foreign Subsidiaries) under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a material
adverse effect on the business, operations, property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole and would not
adversely affect the ability of any Loan Party to perform its respective
obligations under the Loan Documents to which it is a party and (d) is in
compliance with all Requirements of Law, except to the extent that the failure
to comply therewith would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the business, operations, assets or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole and would not reasonably be expected to adversely affect the ability of
any Loan Party to perform its obligations under the Loan Documents to which it
is a party.
4.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the corporate power and authority, and the legal right,
to execute, deliver and perform each of the Loan Documents to which it is a
party or to which this Agreement requires it to become a party. The Borrower has
the corporate power and authority to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party or to which this Agreement
requires it to become a party.
(b) No consent or authorization of, filing with or other act
by or in respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
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(c) This Agreement and each other Loan Document to which any
Loan Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party, the
borrowings hereunder and the use of the proceeds thereof, (a) will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any
other Loan Party (including, without limitation, the 9 1/2% Subordinated Note
Indenture and the Subordinated Note Indenture) except for violations of
Requirements of Law and Contractual Obligations (other than such Indentures)
which, individually or in the aggregate will not have a material adverse effect
on the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole and will not adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party and (b) will not result in, or require, the
creation or imposition of any Lien (other than the Liens created by the Security
Documents) on any of its or their respective properties or revenues pursuant to
any Requirement of Law or Contractual Obligation. The Obligations of the
Borrower constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the Borrower.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, overtly threatened by or against the Borrower
or any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any Loan Document or any of the transactions
contemplated hereby or thereby, (b) which would reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or (c)
which would be reasonably expected to adversely affect the ability of any Loan
Party to perform its obligations under any of the Loan Documents to which it is
a party.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or which
would adversely affect the ability of any Loan Party to perform its obligations
under any of the Loan Documents to which it is a party. No Default or Event of
Default has occurred and is continuing.
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4.8 Ownership of Property; Liens. The Borrower and each of
its Material Subsidiaries has good record and marketable title in fee simple to,
or a valid and subsisting leasehold interest in, all its material real property,
and good title to all its other property, and none of such property is subject
to any Lien, except as permitted in subsection 7.3 and except, in each case,
where any failure to have good title or a valid and subsisting leasehold
interest or the existence of any Lien would not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole.
4.9 Taxes. (a) The Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the Borrower are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those which, in
the aggregate, are not substantial in amount or those the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be and except insofar
as the failure to make such filings or payments would not reasonably be expected
to have a material adverse effect on the business, operations, property or
financial condition of the Borrower and its Subsidiaries taken as a whole); and
(b) no tax lien (other than a Lien permitted in subsection 7.3) has been filed
and, to the knowledge of the Borrower, no claim is being asserted with respect
to any such tax, fee or other charge.
4.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and foreign
securities law and Regulations T, U and X of the Federal Reserve Board.
4.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred and no Lien under the Code or ERISA in favor
of PBGC or a Single Employer Plan has arisen during the five-year period prior
to the date as of which this representation is deemed made. The present value of
all accrued benefits under each Single Employer Plan maintained by the Borrower
or any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits, either individually or in the
aggregate with all other Single Employer Plans under which such accrued benefits
exceed such assets, by more than $125,000,000. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan during the five year period prior to the date as of which
this representation is made or deemed made, and neither the Borrower nor any
Commonly Controlled Entity would become subject to liability under ERISA in the
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aggregate which exceeds $145,000,000 if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date hereof, and no such
withdrawal is likely to occur. No such Multiemployer Plan is in Reorganization
or Insolvent. The present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits by an amount in excess of $145,000,000.
4.12 Investment Company Act; Other Regulations. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended. The Borrower is not subject to regulation under any federal
or state statute or regulation which limits its ability to incur Indebtedness.
4.13 Subsidiaries, etc. The Subsidiaries of the Borrower as of
the Closing Date are those listed on Schedule VI. The Borrower owns, as of the
Closing Date, the percentage of the issued and outstanding capital stock or
other evidences of the ownership of each Subsidiary, listed on Schedule VI as
set forth on such Schedule. Except as disclosed on Schedule VI, no such
Subsidiary has issued any securities convertible into shares of its capital
stock (or other evidence of ownership) or any options, warrants or other rights,
to acquire such shares or securities convertible into such shares (or other
evidence of ownership), and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries are owned by the Borrower and its
Subsidiaries free and clear of all Liens, warrants, options or rights of others
of any kind whatsoever except for Liens permitted by subsection 7.3.
4.14 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the Borrower or
this Agreement or any transaction contemplated hereby furnished to the Lenders
by the Borrower or on behalf of the Borrower, were, at the time the same were so
furnished, complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other papers or data,
to the extent necessary to give the Lenders a true and accurate knowledge of the
subject matter in all material respects. All projections with respect to the
Borrower and its Subsidiaries, so furnished by the Borrower, as supplemented,
were prepared and presented in good faith by the Borrower, it being recognized
by the Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ materially from the projected results. No document
furnished or statement made in writing to the Lenders by the Borrower in
connection with the negotiation, preparation or execution of this Agreement
contains any untrue statement of a material fact, or, to the knowledge of the
Borrower after due inquiry, omits to state any such material fact necessary in
order to make the statements contained therein not misleading, in either case
which has not been corrected, supplemented or remedied by subsequent documents
furnished or statements made in writing to the Lenders.
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4.15 Security Documents. Each Pledge Agreement is effective
to create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged assets
described therein. Each Pledge Agreement constitutes a fully perfected first
Lien on, and security interest in, all right, title and interest of the Loan
Party thereto in the pledged assets described therein.
4.16 Patents, Copyrights, Permits and Trademarks. Each of the
Borrower and its Subsidiaries owns, or has a valid license or sub-license in,
all domestic and foreign letters patent, patents, patent applications, patent
and know-how licenses, inventions, technology, permits, trademark registrations
and applications, trademarks, trade names, trade secrets, service marks,
copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other condition
of the Borrower and its Subsidiaries taken as a whole. Neither the Borrower nor
any of its Subsidiaries is aware of any existing or threatened infringement or
misappropriation of any Proprietary Rights of others by the Borrower or any of
its Subsidiaries or of any Proprietary Rights of the Borrower or any of its
Subsidiaries by others which is material to the business operations, assets or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole.
4.17 Environmental Matters. Except as disclosed in Schedule
VII, and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the Borrower and its
Subsidiaries taken as a whole:
(a) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute
a violation of, or (B) could reasonably give rise to any liability
under any applicable Environmental Laws.
(b) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been
owned by the Borrower or its Subsidiaries, with all Environmental Laws,
and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties
which could interfere with the continued operation of the Properties or
impair the fair saleable value thereof. Neither the Borrower nor any
Subsidiary has knowingly assumed any liability, by contract or
otherwise, of any person under any Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has
received any Environmental Complaint with regard to any of the
Properties or the operations of the Borrower or any of its
Subsidiaries, nor does the Borrower or any of its Subsidiaries have
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knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) To the best knowledge of the Borrower and its
Subsidiaries, based on the Borrower's and the Subsidiaries' customary
practice of contracting only with licensed haulers for removal of
Hazardous Materials from the Properties only to facilities authorized
to receive such Hazardous Materials, Hazardous Materials have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably give rise to liability
under, Environmental Laws, nor have any Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably give
rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower
and its Subsidiaries, threatened, under any Environmental Law to which
the Borrower and its Subsidiaries are or will be named as a party with
respect to the Properties, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties.
(f) To the best knowledge of the Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties,
or arising from or related to the operations of the Borrower or its
Subsidiaries in connection with the Properties in violation of or in
amounts or in a manner that could reasonably give rise to liability
under any Environmental Laws.
4.18 Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, are expected to be completed within such period of time as is
required to avoid a material adverse effect on the business, operations,
property or financial condition of the Borrower and its Subsidiaries taken as a
whole as a result of the failure to complete such reprogramming. The cost to the
Borrower of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) would not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the Borrower and its Subsidiaries
taken as a whole.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
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(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement, duly executed by a Responsible Officer
of the Borrower and by each Lender.
(b) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee duly executed by each guarantor party
thereto.
(c) Domestic Pledge Agreement. The Administrative Agent shall
have received the Domestic Pledge Agreement listed on Schedule IV, duly
executed by each pledgor party thereto.
(d) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to the Domestic Pledge Agreement listed on Schedule IV,
together with an undated stock power for each such certificate executed
in blank by a duly authorized officer of the pledgor thereof.
(e) Perfection Actions. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions necessary or, in
the opinion of the Administrative Agent, desirable to perfect the Liens
created by the Domestic Pledge Agreements shall have been completed.
(f) UT Automotive Acquisition. The UT Automotive Acquisition
shall have been consummated in accordance with the UT Automotive
Acquisition Agreement concurrently with the transactions contemplated
by this Agreement, and the Administrative Agent shall have received a
certificate of a Responsible Officer to such effect.
(g) UT Automotive Financial Statements. The Lenders shall have
received the audited financial statements of Xxxx Corporation
Automotive Holdings (formerly known as UT Automotive, Inc.) for the
fiscal year ended December 31, 1998.
(h) Consents. The Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each
case certified as to authenticity on such date by a duly authorized
officer of the Borrower) of all documents and instruments, including
all consents, authorizations and filings, required under any
Requirement of Law or by Contractual Obligation of the Borrower or any
of its Subsidiaries, in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the
other Loan Documents, and such consents, authorizations and filings
shall be satisfactory in form and substance to the Lenders and be in
full force and effect.
(i) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party, dated the
Closing Date, as to the incumbency and signature of their respective
officers executing each Loan Document to be entered into on the Closing
Date
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to which it is a party, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
(j) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors (or the executive committee thereof) of each
Domestic Loan Party authorizing (i) the execution, delivery and
performance of each Loan Document to be entered into on the Closing
Date to which it is a party, and (ii) the granting by it of the pledge
and security interests, if any, granted by it pursuant to such Loan
Document, certified by their respective Secretary or an Assistant
Secretary as of the Closing Date, which certificate shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate.
(k) Fees. The Administrative Agent shall have received all
fees required to be paid to the Administrative Agent and/or the Lenders
pursuant to subsection 3.5 and/or any other written agreement on or
prior to the Closing Date.
(l) Legal Opinion of Counsel to Borrower. The Administrative
Agent shall have received, with a copy for each Lender, an opinion,
dated the Closing Date, of Winston & Xxxxxx, special counsel to the
Borrower and its Subsidiaries, in substantially the form of Exhibit L
and covering such other matters incident to the transactions
contemplated hereby as the Lenders may reasonably require.
(m) Subordinated Debt Indentures. The Administrative Agent
shall have received, with a copy for each Lender, a certified true copy
of the outstanding Subordinated Debt Indentures.
(n) Closing Date under Other Credit Agreements. The Closing
Date under (and as defined in) the Other Credit Agreements shall have
occurred or shall occur simultaneously with the Closing Date hereunder.
5.2 Additional Conditions to Interim Term Loans. The agreement
of each Lender to make the Interim Term Loan to be made by it on the Closing
Date is subject to the satisfaction of the following conditions precedent as of
the Closing Date:
(a) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of the Closing Date as if made on and as of the Closing Date (except
that any representation or warranty which by its terms is made as of a
specified date shall be true and correct in all material respects as of
such specified date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on the Closing Date after giving effect to
the making of the Interim Term Loans.
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The borrowing by the Borrower of the Interim Term Loans shall constitute a
representation and warranty by the Borrower as of the Closing Date that the
conditions contained in this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Interim Term
Loan Commitments remain in effect, any Interim Term Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall and shall cause
each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender (or to the
Administrative Agent on behalf of each Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in
each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of each
such quarter and the related unaudited consolidated statements of
income and cash flows of the Borrower and its consolidated Subsidiaries
for such quarter and the portion of the fiscal year through such date,
setting forth in each case in comparative form the figures for the
corresponding quarterly period of the previous year, certified by a
Responsible Officer (subject to normal year-end audit adjustments).
The Borrower covenants and agrees that all such financial statements shall be
complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
6.2 Certificates; Other Information. Furnish to each Lender
(or to the Administrative Agent on behalf of each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no
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knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a) and (b), a certificate of a
Responsible Officer of the Borrower (i) stating that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, (ii) stating, to the best of
such Responsible Officer's knowledge, that all such financial
statements are complete and correct in all material respects (subject,
in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statements in respect of
subsection 7.1;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the Borrower by independent certified public accountants
in connection with each annual, interim or special audit of the books
of the Borrower made by such accountants, including, without
limitation, any management letter commenting on the Borrower's internal
controls submitted by such accountants to management in connection with
their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its public equity
holders, and within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality
requirements and confidentiality agreements to which the Borrower or
any of its Subsidiaries is a party, such additional financial and other
information as any Lender may from time to time reasonably request.
6.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each material mortgage,
indenture, security agreement and other debt instrument by which it is bound or
to which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the books
of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable
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in the normal conduct of its business except as otherwise permitted pursuant to
subsection 7.5 and except, with respect to the corporate existence of
Subsidiaries that are not Loan Parties and any rights, privileges and
franchises, to the extent that the Board of Directors of the Borrower shall
determine in good faith that the preservation or maintenance thereof is no
longer desirable in the conduct of the business of the Borrower and its
Subsidiaries; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith would not reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole and would not reasonably be
expected to adversely affect the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under any of the Loan
Documents to which they are a party.
6.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition where
the failure to maintain such property in good working order and condition would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the Borrower and its Subsidiaries
taken as a whole; maintain with financially sound and reputable insurance
companies such insurance coverage as is reasonable for the business activities
of the Borrower and its Subsidiaries; and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and, provided the Borrower is given an opportunity to
participate, with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, would reasonably be expected to have a material adverse effect
on the business, operations, property or financial condition of the
Borrower and its Subsidiaries taken as a whole or would reasonably be
expected to adversely affect the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under any of the
Loan Documents to which they are a party;
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(c) of any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the then reasonably anticipated
exposure of the Borrower and its Subsidiaries is $20,000,000 or more
and not covered by insurance, or in which injunctive or similar relief
is sought which is then reasonably anticipated to have an adverse
economic effect on the Borrower and its Subsidiaries of $20,000,000 or
more;
(d) of the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Single Employer Plan, a failure to make any
required contribution to any Single Employer Plan, unless such failure
is cured within such 30 days, any Lien under the Code or ERISA in favor
of the PBGC or a Single Employer Plan, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer or
Multiemployer Plan, where, in connection with any of the events
described in clauses (i) or (ii), the resulting liability would
reasonably be expected to cause a material adverse change in the
business, assets, operations or financial condition of the Borrower and
its Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the Borrower and its Subsidiaries,
taken as a whole, and any notice from any Person of (i) the occurrence
of any release, spill or discharge of any Hazardous Material that is
reportable under any Environmental Law, (ii) the commencement of any
clean up pursuant to or in accordance with any Environmental Law of any
Hazardous Material at, on, under or within the Property or any part
thereof or (iii) any other condition, circumstance, occurrence or
event, any of which would reasonably be expected to have a material
adverse effect on the business, operations, property or financial
condition of the Borrower and its Subsidiaries, taken as a whole, under
any Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 7.3) on, or claim asserted against any
of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document; and
(g) of a material adverse change in the business, operations,
property or financial condition of the Borrower and its Subsidiaries
taken as a whole.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
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6.8 Maintenance of Liens of the Security Documents.
Promptly, upon the reasonable request of any Lender, at the Borrower's expense,
execute,acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent necessary or desirable for the
continued validity,perfection and priority of the Liens on the collateral
covered thereby.
6.9 Environmental Matters. (a) Comply in all material respects
with, and use all reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all Environmental Laws and
all requirements existing thereunder and obtain and comply in all material
respects with and maintain, and use all reasonable efforts to ensure that all
tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, other than such orders and directives as to which an appeal has been taken
in good faith and the pendency of any and all such appeals does not materially
and adversely affect the Borrower or any Subsidiary or the operations of the
Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders and their Affiliates, and their respective employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the Borrower or its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise solely
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
6.10 Security Documents; Guarantee Supplement. Subject to
subsection 10.18, (a) within 60 days after the Closing Date, at its own expense,
(i)cause 65% of the capital stock of Xxxx Germany to be pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, and (ii)cause the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, to receive, with a
counterpart for each Lender, a legal opinion of German counsel acceptable to the
Administrative Agent covering such matters in respect of such pledge agreement
as the Administrative Agent shall reasonably request.
(b) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b),
for any fiscal period ending on or after December 31, 1999, cause (i) all of the
capital stock owned directly or indirectly by the Borrower
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of each of the Borrower's direct or indirect Domestic Subsidiaries which on the
date of such financial statements constituted at least 10% of Consolidated
Assets or for the twelve month period ended on the date of such financial
statements represented at least 10% of Consolidated Revenues to be pledged to
the Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, (ii) 65% of the capital stock (or such lesser amount
as may be owned by the Borrower) of each of the Borrower's direct Foreign
Subsidiaries which on the date of such financial statements constituted at least
10% of Consolidated Assets or for the twelve month period ended on the date of
such financial statements represented at least 10% of Consolidated Revenues to
be pledged to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, pursuant to a pledge agreement in form and substance
satisfactory to the Administrative Agent, and (iii) the Administrative Agent in
its capacity as Agent pursuant to the Intercreditor Agreement, to receive, with
a counterpart for each Lender, legal opinions of counsel to the Borrower
acceptable to the Administrative Agent covering such matters in respect of such
pledges as the Administrative Agent shall reasonably request.
(c) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b)
for any fiscal period ending on or after December 31, 1999, cause (i) each of
the Borrower's direct and indirect Domestic Subsidiaries which on the date of
such financial statements constituted 10% of Consolidated Assets or for the
twelve month period ended on the date of such financial statements represented
at least 10% of Consolidated Revenues to execute and deliver a Guarantee
Supplement to the Administrative Agent in its capacity as Agent pursuant to the
Intercreditor Agreement, and (ii) the Administrative Agent in its capacity as
Agent pursuant to the Intercreditor Agreement, to receive, with a counterpart
for each Lender, opinions of counsel to the Borrower, in form and substance
satisfactory to the Administrative Agent, covering such matters in respect of
the Subsidiary Guarantee as the Administrative Agent shall reasonably request;
provided, that, notwithstanding the foregoing, a Domestic Subsidiary shall not
be required to execute and deliver a Guarantee Supplement or otherwise become a
party to the Subsidiary Guarantee if (x) it is a holding company whose only
material asset consists of capital stock of one or more Foreign Subsidiaries and
(y) the capital stock of such Domestic Subsidiary is pledged to the
Administrative Agent in its capacity as Agent pursuant to the Intercreditor
Agreement.
(d) (i) Cause to be pledged to the Administrative Agent in its
capacity as Agent pursuant to the Intercreditor Agreement, on the Closing Date
100% of the Capital Stock of each Domestic Subsidiary which would have
constituted more than 10% of Consolidated Assets on December 31, 1998 or
represented at least 10% of Consolidated Revenues for the twelve-month period
ended on December 31, 1998, and (ii) cause each Domestic Subsidiary described in
the foregoing clause (i) to be Subsidiary Guarantors on the Closing Date;
provided, that (A) Xxxx Corporation (Germany) Ltd. shall not be required to be a
Subsidiary Guarantor and the Borrower shall not be required to pledge its
Capital Stock and (B) Xxxx Corporation XXXX and Interiors shall not be required
to be a Subsidiary Guarantor and the Borrower shall not be required to cause its
Capital Stock to be pledged unless Xxxx Corporation XXXX and Interiors meets the
tests
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set forth in paragraph (c) above in respect of any fiscal period ending on
or after December 31, 1999.
(e) For purposes of calculating Consolidated Assets and
Consolidated Revenues pursuant to the foregoing paragraphs (), (c) and (d) for
any date on or prior to March 31, 2000, or for twelve-month periods ended on or
prior to March 31, 2000, the assets and revenues of Xxxx Corporation Automotive
Holdings shall be included on a pro forma basis as if the UT Automotive
Acquisition had occurred on the first day of the relevant period.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Interim Term
Loan Commitments remain in effect, any Interim Term Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated
Operating Profit for any four consecutive fiscal quarters ending during any
period set forth below to (ii) Consolidated Interest Expense for such four
consecutive fiscal quarters, to be less than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing - December 31, 1999 2.75x
January 1, 2000 - December 31, 2000 3.00x
January 1, 2001 - December 31, 2001 3.25x
Thereafter 3.50x
; provided, that in calculating the foregoing ratio for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99, 12/31/99 and
3/31/00, Consolidated Interest Expense shall be determined giving pro forma
effect to the aggregate principal amount of Indebtedness incurred in connection
with the UT Automotive Acquisition (less the aggregate net cash proceeds
received by the Borrower in respect of the sale of any part of the business
acquired in connection with the UT Automotive Acquisition) as if such
Indebtedness had been incurred on the first day of the relevant period, and in
making such calculation, the interest rate assumed to be applicable to such
Indebtedness shall be (i) with respect to $1,400,000,000 of such Indebtedness,
the weighted average interest rate applicable during the last fiscal quarter in
such period to loans outstanding under the Interim Term Loan Agreement and/or
the debt securities that refinance the loans under the Interim Term Loan
Agreement and (ii) with respect to the remainder of such Indebtedness, the
weighted average interest rate applicable during the last fiscal quarter in such
period to loans in Dollars under the New Revolving Credit Agreement.
(b) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating
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Profit for the four consecutive fiscal quarters then ended to be greater than
the ratio set forth opposite such period below:
Period Ratio
------ -----
Closing - June 30, 2000 4.50x
July 1, 2000 through December 31, 2001 4.00x
Thereafter 3.75x
7.2 Limitation on Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness in respect of the Interim Term Loans and
(ii) Indebtedness in respect of extensions of credit under the Other
Credit Agreements and, without duplication, Indebtedness of any
Subsidiary backed by letters of credit issued under either of the Other
Credit Agreements;
(b) Indebtedness under the Subsidiary Guarantee and any Bond
Guarantee;
(c) Indebtedness in respect of Interest Rate Agreement
Obligations and Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) intercompany Indebtedness permitted by subsection 7.9; and
(f) other Indebtedness, subject to the provisions of
subsection 7.8.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except (subject, in the case of Liens described in
paragraphs (o) through (t) below, to the provisions of subsection 7.8):
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization);
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary
course of business relating to obligations not overdue for a period of
more than 60 days or which are bonded or being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation, including any Lien securing letters of credit issued in
the ordinary course of business in connection therewith and deposits
securing liabilities to insurance carriers under insurance and
self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of the business of the Borrower and
its Subsidiaries taken as a whole;
(f) Liens created pursuant to the Security Documents;
(g) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$40,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
60 days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(h) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business;
(i) statutory Liens and rights of offset arising in the
ordinary course of business of the Borrower and its Subsidiaries;
(j) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than
the Borrower or any Subsidiary of the Borrower) under any lease;
(k) Liens arising in connection with Industrial Development
Bonds or other industrial development, pollution control or other
tax-favored or government-sponsored financing transactions, provided
that such liens do not at any time encumber any property, other than
the property financed by such transaction and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in connection
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with such transactions (in each case, together with improvements and
attachments thereto);
(l) Liens on receivables subject to a Receivable Financing
Transaction;
(m) Liens securing Indebtedness permitted by subsection 7.2(c)
and any other Indebtedness in respect of Interest Rate Agreement
Obligations or Currency Agreement Obligations of the Borrower entered
into to protect against fluctuations in interest rates or exchange
rates and not for speculative reasons, provided that such Liens run in
favor of a Lender hereunder or a lender under one of the Other Credit
Agreements;
(n) Extensions, renewals and replacements of any Lien
described in subsections 7.3(a) through (m) above;
(o) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 7.2 incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the purchase price of such property;
(p) Liens securing the Indebtedness of Foreign Subsidiaries
permitted by subsection 7.2, provided that such Liens permitted by this
paragraph do not at any time encumber any property located in the
United States;
(q) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
(r) Liens securing Acquired Indebtedness permitted by
subsection 7.2, provided, that (i) such Liens existed at the time such
corporation became a Subsidiary or such assets were acquired and were
not created in anticipation thereof, (ii) any such Lien does not by its
terms cover any property or assets after the time such corporation
became or becomes a Subsidiary or such assets were acquired which were
not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the
time such corporation became or becomes a Subsidiary or such assets
were acquired;
(s) except as otherwise provided for in subsections 7.3(a)
through (n), Liens securing Indebtedness of Domestic Subsidiaries
permitted under subsection 7.2;
(t) other Liens; and
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(u) extensions, renewals and replacements of any Lien
described in subsections 7.3(o) through (t) above.
7.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the Borrower under the Other
Credit Agreements and of the Domestic Subsidiaries under the Subsidiary
Guarantee and any Bond Guarantee;
(b) Guarantee Obligations of any Subsidiary Guarantor in
respect of obligations of the U.S. Borrower or any other Subsidiary
Guarantor;
(c) Guarantee Obligations of any Subsidiary that is not a
Subsidiary Guarantor in respect of obligations of any other Subsidiary
that is not a Subsidiary Guarantor;
(d) Guarantee Obligations in respect of operating leases;
(e) Guarantee Obligations of the U.S. Borrower in respect of
obligations of any Subsidiary that are permitted to be incurred under
this Agreement; and
(f) other Guarantee Obligations, subject to the provisions of
subsection 7.8.
7.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more other Subsidiaries of the Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other Subsidiary of the Borrower;
(c) the Borrower may merge or consolidate with any Person,
provided that (A) the Borrower is the surviving corporation of such
merger or consolidation, (B) after giving effect thereto, no Default or
Event of Default is in existence and (C) if such merger or
consolidation had occurred on the first day of the period of four full
fiscal quarters most recently ended prior to the date of such event,
the Borrower would have been in compliance with subsection 7.1 during
such period of four full fiscal quarters; and
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(d) any Subsidiary may be merged, consolidated or amalgamated
with or into any Person, or may sell, lease, transfer or otherwise
dispose of its assets (upon voluntary liquidation, dissolution or
otherwise) to any Person or may liquidate, wind up or dissolve itself
if (A) after giving effect thereto, no Default or Event of Default is
in existence and(B) if such merger, consolidation, amalgamation, sale,
lease, transfer or other disposition had occurred on the first day of
the period of four fiscal quarters most recently ended prior to the
date of such event, the Borrower would have been in compliance with
subsection 7.1 during such period of four full fiscal quarters.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, any of its property, business or assets
(including, without limitation, receivables and leasehold interests) whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's capital stock to any Person other than the
Borrower or any Wholly Owned Subsidiary (or to qualify directors if required by
applicable law or similar de minimis issuances of capital stock to comply with
Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out
property or other property not necessary for operations disposed of in
the ordinary course of business; provided that (i) the Net Proceeds of
each such transaction are applied to obtain a replacement item or items
of property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $20,000,000 in the aggregate in any one fiscal year of
the Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary
course of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
(d) the sale by any Foreign Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(f) any sale or other disposition permitted under subsections
7.5 or 7.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in
the ordinary course of business;
(i) any sale, contribution or transfer to or by a Special
Purpose Subsidiary in connection with a Receivable Financing
Transaction; and
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(j) any sale or other disposition of assets if (A) after
giving effect thereto and the application of the proceeds therefrom, no
Default or Event of Default is in existence and (B) if such sale or
other disposition had occurred on the first day of the period of four
full final quarters most recently ended prior to the date of such sale
or other disposition, the Borrower would have been in compliance with
subsection 7.1 during such period of four full fiscal quarters.
7.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the Borrower or any
warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except for (a)(i) payment by the Borrower of amounts then owing
to management personnel of the Borrower pursuant to the terms of their
respective employment contracts or under any employee benefit plan,
(ii)mandatory purchases by the Borrower of its common stock from management
personnel pursuant to the terms of their respective employment agreements or any
employee benefit plan, (iii)additional repurchases by the Borrower of its
common stock from management personnel, and other officers or employees of the
Borrower or any Subsidiary in an amount not to exceed $35,000,000 in the
aggregate and (iv) the purchase, redemption or retirement of any shares of any
capital stock of the Borrower or options to purchase capital stock of the
Borrower in connection with the exercise of outstanding stock options, (b) if no
Default or Event of Default has occurred and is continuing (or would occur and
be continuing after giving effect thereto) when any such dividend is declared by
the Board of Directors of the Borrower or such payment is made on the account of
the purchase of capital stock of the Borrower, cash dividends on the Borrower's
capital stock or such payments made on the account of the purchase of capital
stock of the Borrower not to exceed, in the aggregate, in any fiscal quarter
(the "Payment Quarter") an amount equal to the greater of (i) $25,000,000 and
(ii) (A) 50% (100% if the Borrower shall have attained Investment Grade Status)
of Consolidated Net Income of the Borrower and its consolidated Subsidiaries for
the period of four consecutive fiscal quarters ended immediately prior to the
Payment Quarter (such period of four quarters being the "Calculation Period" in
respect of such Payment Quarter), less (B) the cash amount of all (I) dividends
paid and redemptions made by the Borrower during such Calculation Period in
respect of capital stock and (II) payments made on the account of the purchase
of capital stock of the Borrower during such Calculation Period, but only to the
extent permitted by the terms of the outstanding Subordinated Debt, and (c)
dividends or distributions in the form of additional shares of such capital
stock or in options, warrants or other rights to purchase capital stock.
7.8 Limitation on Subsidiary and Secured Indebtedness. Create,
incur, assume or suffer to exist Subsidiary and Secured Indebtedness in an
aggregate principal amount at any time outstanding exceeding 10% of Consolidated
Assets at such time; or create, incur, assume or suffer to exist any
Indebtedness that constitutes Subsidiary and Secured Indebtedness and that is
secured by any Lien on any property, assets or receivables of the Borrower or
any of its Subsidiaries (other than Liens permitted by paragraphs (a) through
(n) of subsection 7.3) in an aggregate principal amount at any time exceeding 5%
of Consolidated Assets at such time.
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7.9 Limitation on Investments, Loans and Advances. Make or suffer
to exist any advance, loan, extension of credit or capital contribution to,
or purchase any stock, bonds, notes,debentures or other securities of or any
assets constituting a business unit of, or make any other investment in, any
Person, or acquire or invest in any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) capital contributions and equity investments made prior to
the date hereof in any Subsidiary or Special Entity and any
recapitalization thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any
Subsidiary to the Borrower and (ii) loans, advances, extensions of
credit, capital contributions and other investments by the Borrower or
any Subsidiary to or in any Subsidiary;
(f) the purchase by the Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the
amount which the Borrower or such Subsidiary would otherwise be
permitted to lend or contribute to such Foreign Subsidiaries pursuant
to this subsection 7.9;
(g) the Borrower and its Subsidiaries may acquire or invest in
any Special Entities or the assets constituting a business unit of any
Person that would be a Special Entity, provided that the aggregate
purchase price of such acquisitions after the date hereof does not
exceed $400,000,000 (less, in the case of Special Entities that become
Subsidiaries of the Borrower, the aggregate amount of Indebtedness of
such Special Entities at the time such Special Entities are acquired)
per fiscal year; and provided, further, that up to $100,000,000 of such
permitted amount which is not expended in any fiscal year may be
carried over for such acquisitions in any subsequent fiscal year; and
provided, still further, that no more than $150,000,000 per fiscal year
of any such permitted amount may be expended to acquire stock or other
evidence of beneficial ownership of Special Entities that do not become
Subsidiaries of the Borrower;
(h) advances to employees in the ordinary course of business
for travel, relocation and related expenses;
(i) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the Borrower or any Subsidiary in settlement of
delinquent obligations of, and other disputes with, customers,
suppliers and such other Persons arising in the ordinary course of
business;
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(j) advances, loans, extensions of credit or other investments
held by a Person at the time it becomes a Subsidiary of the Borrower in
connection with an acquisition permitted hereunder; provided, that such
advances, loans, extensions of credit or other investments have not
been made in anticipation of such acquisition;
(k) other investments, advances, loans, extensions of credit
and capital contributions by the Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding;
(l) the UT Automotive Acquisition; and
(m) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as (i)
no Default or Event of Default shall have occurred and be continuing
before and after giving effect to such transaction, (ii) the Borrower
would be in pro forma compliance with subsection 7.1 after giving
effect to such transaction, (iii) after giving pro forma effect to such
transaction as if it had occurred on the first day of the period of
four consecutive fiscal quarters most recently ended prior to the date
of such transaction, the ratio of (a) Consolidated Indebtedness on the
date of, and after giving effect to, such transaction to (b)
Consolidated Operating Profit for such period of four consecutive
fiscal quarters would be less than 4.00 and (iv) such transaction is
not the result of a hostile bid made by the Borrower or its
Subsidiaries.
7.10 Limitation on Optional Payments and Modification of Debt
Instruments; Certain Derivative Transactions. (a) Prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any payment on account of any
principal of, interest on, or premium payable in connection with the prepayment,
redemption or retirement of any outstanding Subordinated Debt, except that the
Borrower may prepay, purchase or redeem Subordinated Debt with the proceeds of
the issuance of other subordinated Indebtedness of the Borrower or capital stock
of the Borrower; provided that, in the case of the issuance of subordinated
Indebtedness, either (i) the principal terms of such other subordinated
Indebtedness are no more restrictive, taken as a whole, to the Borrower and its
Subsidiaries than the principal terms of the Subordinated Debt being repaid,
purchased or redeemed or (ii) the terms and conditions of the other subordinated
Indebtedness are reasonably satisfactory to the Administrative Agent; provided,
further, that, notwithstanding any provision contained in this subsection 7.10,
if no Default or Event of Default has occurred and is continuing or would occur
and be continuing as a result of the following, the Subordinated Debt may be
prepaid at any time without restriction; (b) enter into any derivative
transaction or similar transaction obligating the Borrower or any of its
Subsidiaries to make any payment to any other Person as a result of any change
in value or market price of Subordinated Debt or Capital Stock of the Borrower;
or (c) without the consent of the Administrative Agent, amend, modify or change,
or consent or agree to any amendment, modification or change to any of the terms
of any Subordinated Debt (except that without the consent of the Administrative
Agent or any Lender, the terms of the Subordinated Debt may be amended, modified
or changed if such amendment, modification or change would extend the maturity
or reduce the amount of any payment of principal thereof, would reduce the rate
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extend the date for payment of interest thereon, would eliminate covenants
(other than covenants with respect to subordination to Indebtedness under this
Agreement and, if applicable, the Subsidiary Guarantee) or defaults in such
Subordinated Debt or would make such covenants or defaults less restrictive or
make any other change that would not require the consent of the holders of such
Subordinated Debt).
7.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement, or such transactions are in the
ordinary course of the Borrower's or such Subsidiary's business and are upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate; provided, however, that the Borrower
may engage The Cypress Group, LLC or any Affiliate of The Cypress Group, LLC as
financial advisor, underwriter, broker, dealer-manager or finder in connection
with any transaction at the then customary market rates for similar services.
7.12 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, if such
amendment would reasonably be expected to impair the ability of the Loan Parties
to perform their respective obligations under the Loan Documents to which they
are a par
7.13 Fiscal Year. Permit the fiscal year of the Borrower to end on a day other
than December 31.
7.14 Limitation on Restrictions Affecting Subsidiaries. Enter
into any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary or (c)
transfer any of its properties or assets to the Borrower or any Subsidiary,
except (i) prohibitions or restrictions under applicable law, (ii) agreements
and instruments governing or evidencing secured Indebtedness otherwise permitted
to be incurred under this Agreement that limits the right of the borrower to (A)
dispose of the assets securing such Indebtedness or (B) in the case of any
Foreign Subsidiary, to make dividends or distributions, (iii) prohibitions or
restrictions under agreements relating to Acquired Indebtedness and any
refinancings thereof, (iv) prohibitions or restrictions with respect to the
distribution or dispositions of assets or property in joint venture and similar
agreements entered into in the ordinary course of business, (v) customary
non-assignment provisions in leases and other agreements entered into in the
ordinary course of business, (vi) customary net worth provisions contained in
leases and other agreements entered into by a Subsidiary in the ordinary course
of business, (vii) customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition of the
assets or stock of such Subsidiary, (viii) (x) any such restrictions existing by
reasons of Contractual Obligations listed on Schedule VIII or (y) Contractual
Obligations in effect on the Closing Date affecting Subsidiaries acquired in the
UT Automotive Acquisition, (ix) any restrictions on a Special Purpose
Subsidiary, (x) restrictions on cash or other deposits or net worth provisions
under customer and supply agreements entered into in the ordinary course
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of business, and (xi) any restrictions contained in any instrument or agreement
that refinances any Indebtedness or other obligations which contains similar
restrictions.
7.15 Special Purpose Subsidiary. Permit (a) any Special
Purpose Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary) or
any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise.
7.16 Interest Rate Agreements. Enter into, or become a party
to, any Interest Rate Agreement that is speculative in nature.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of the
Interim Term Loans when due (whether at the stated maturity, by
acceleration or otherwise) in accordance with the terms thereof or
hereof or (ii) any interest on the Interim Term Loans, or any fee or
other amount payable hereunder, within five days after any such
interest, fee or other amount becomes due in accordance with the terms
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement or any other Loan Document shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any negative covenant contained in Section
7; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Borrower or any other Loan Party shall so
assert; or any security interest created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby, except, in each case, as
provided in subsection 10.18; or
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(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert, except as provided in subsection 10.18; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Interest Rate Agreement
Obligation, in any case where the principal amount thereof then
outstanding exceeds $40,000,000 beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or agreement under
which such Indebtedness, Guarantee Obligation or Interest Rate
Agreement Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(i) (i) The Borrower or any Material Subsidiary shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Borrower or any
Material Subsidiary shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or
any Material Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any Material
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any Material Subsidiary shall
take any action in furtherance of, or indicating its consent to,
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approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any Material
Subsidiary shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(j) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would
reasonably be expected to subject the Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial
or other condition of the Borrower and its Subsidiaries taken as a
whole; or
(k) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $40,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of
the Borrower having ordinary voting power in the election of directors
or (B) shall obtain the legal right (whether or not exercised) to elect
a majority of the Borrower's directors or (ii) the Board of Directors
of the Borrower shall not consist of a majority of Continuing
Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect of the Borrower,
automatically the Interim Term Loan Commitments shall immediately terminate and
the Interim Term Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, any of the following actions
may be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Interim Term Loan Commitments to be
terminated forthwith, whereupon
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the Interim Term Commitments shall immediately terminate; (ii) with the consent
of the Majority Lenders, the Administrative Agent may, or upon the direction of
the Majority Lenders, the Administrative Agent shall, by notice of default to
the Borrower, declare the Interim Term Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable and (iii) the Administrative Agent may, and upon the direction of the
Majority Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and/or the other Loan Documents.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT; THE MANAGING
AGENTS, DOCUMENTATION AGENT AND
SYNDICATION AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each Lender irrevocably authorizes Chase to
act as the Administrative Agent of such Lender and to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or other Person or any officer thereof contained in this Agreement
or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document
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or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
the Borrower or any other Person to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified as between itself and the Lenders in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Interim Term Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lender.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and
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based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Interim Term Loan hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates.
9.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the outstanding principal amount of its Interim Term Loan
on the date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Interim
Term Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. The agreements in
this subsection shall survive the payment of the Interim Term Loans and all
other amounts payable hereunder.
9.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Interim Term Loan made by the
Administrative Agent and any Note issued to it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor administrative agent for the
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Lenders, which successor administrative agent shall be approved by the Borrower
(such approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Interim Term Loans. After any resigning
Administrative Agent's resignation as either Administrative Agent, the
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
9.10 The Documentation Agent, Managing Agents and
Co-Syndication Agents. Each Lender, the Documentation Agent and each
Co-Syndication Agent and Managing Agent acknowledge that the Documentation
Agent, Co-Syndication Agents and Managing Agents, in such capacities, shall have
no duties or responsibilities, and shall incur no liabilities, under this
Agreement or the other Loan Documents in their respective capacities as such.
9.11 Actions Under Security Documents . With respect to any
action under or in respect of the Security Documents that the provisions of this
Agreement permit or require the Administrative Agent to take only with the
consent, or upon the direction, of all of the Lenders or the Majority Lenders,
as the case may be, the Lenders acknowledge that the Administrative Agent shall
be required to take such action only if such action is approved by, in addition
to all the Lenders or the Majority Lenders, as the case may be, such instructing
group of lenders under each of the Other Credit Agreements as the Other Credit
Agreements require for such action.
9.12 Intercreditor Agreement . In the event that a Refinancing
Agreement is entered into, the Administrative Agent is authorized and directed
to enter into an intercreditor agreement reasonably satisfactory to the
Administrative Agent as contemplated by the definition of Refinancing
Agreement set forth in subsection 1.1, and to enter into such amendments, if
any, to the Subsidiary Guarantee and the Security Documents as it shall
reasonably deem required in order to give effect to such intercreditor
agreement, provided, that, in any case, the Indebtedness of the Borrower
hereunder and under the Other Credit Agreements (including any Refinancing
Agreement in respect of either of the Other Credit Agreements) shall be pari
passu and equally and ratably secured.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 10.1. The Majority Lenders may, or, with the written consent of
the Majority Lenders, the Administrative Agent may, from time to time, (i) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights or
obligations of the Lenders or
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of the Borrower hereunder or thereunder or (ii) waive at the Borrower's request,
on such terms and conditions as the Majority Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(A) reduce the amount or extend the scheduled date of
maturity of any Interim Term Loan or of any scheduled installment
thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Interim Term Loan Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this subsection 10.1 or reduce the percentages specified in the
definition of "Majority Lenders" or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, in each case without the
consent of all the Lenders or reduce the percentages specified in the
definitions of "Majority Lenders" without the consent of all of the
Lenders;
(C) amend, supplement, modify or waive any provision of
Section 9 or any other provision of this Agreement governing the
respective rights or obligations of the Administrative Agent without
the consent of the then Administrative Agent;
(G) amend, modify or waive any provision of subsection 3.8
without the consent of each Lender affected thereby; or
(H) release all or substantially all of the guarantees
contained in the Subsidiary Guarantee or all or substantially all of
the Collateral under, and as defined in, the Security Documents without
the consent of each Lender other than as permitted under subsection
10.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 10.1 shall apply to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Administrative Agent and all future holders of the
Interim Term Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrower and the Administrative
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Agent, and as set forth in Schedule I in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
The
Administrative Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.2, 3.4 or 3.7.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Borrower, the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Interim Term Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and reasonable expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all their costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, fees and disbursements of counsel to the Administrative
Agent and the reasonable fees and disbursements of counsel to the
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63
several Lenders, and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective directors, officers, employees and
agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and the other Loan Documents, the use or proposed use by
the Borrower of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"); provided that the Borrower shall have no obligation
hereunder to (i) the Administrative Agent with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent or (ii) any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of such Lender, in each
case as finally determined by a court of competent jurisdiction. The agreements
in this subsection shall survive repayment of the Interim Term Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the
Interim Term Loans and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in the
Interim Term Loan owing to such Lender, the Interim Term Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Interim Term Loan for all purposes under this Agreement and
the other Loan Documents, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrower's obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents, provided that such participation agreement
may provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (A) or (B) of the proviso to the
second sentence of subsection 10.1(a) without the consent of the Participant.
The Borrower agrees that if amounts outstanding under this Agreement are due or
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64
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of setoff in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement; provided
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as provided
in subsection 10.7(a) as fully as if it were a Lender hereunder. The Borrower
agrees that each Participant shall be entitled to the benefits of subsections
3.10, 3.11, 3.12 and 10.6 with respect to its participation in the Commitments
and the Loans outstanding from time to time hereunder as if it was a Lender;
provided, that no Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the Borrower (such consent not to be unreasonably withheld)
and the Administrative Agent (such consent not to be unreasonably withheld), to
an additional bank or financial institution (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Interim Term Loan Commitment and its Interim
Term Loan, pursuant to an Assignment and Acceptance, substantially in the form
of Exhibit K, executed by such Assignee, such assigning Lender (and, in the case
of an Assignee that is not then a Lender or an Affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that in the case of
any such assignment to an additional bank or financial institution, the
aggregate amount of the Interim Term Loan Commitment or Interim Term Loan being
assigned shall not be less than $10,000,000 (or such lesser amount as may be
agreed by the Borrower and the Administrative Agent), and after giving effect to
such assignment such assignor Lender, if it retains any Interim Term Loan
Commitment or Interim Term Loans, shall retain an Interim Term Loan Commitment
or Interim Term Loan of at least $10,000,000. Upon such execution, delivery,
acceptance and recording, from and after the closing date determined pursuant to
such Assignment and Acceptance, (I) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with an Interim Term Loan
Commitment as set forth therein, and (II) the assigning Lender thereunder shall
be released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding the foregoing, no consent of the Borrower shall
be required for any assignment effected while an Event of Default under Section
8(i) is in existence.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and
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65
the Interim Term Loan Commitment of, and principal amounts of the Interim Term
Loan owing to, each Lender from time to time. The entries in the Register shall
constitute prima facie evidence of the information recorded therein, and the
Borrower, the Administrative Agent and the Lenders may (and, in the case of any
Interim Term Loan or other obligation hereunder not evidenced by a Note, shall)
treat each Person whose name is recorded in the Register as the owner of an
Interim Term Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of an Interim Term Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, executed by the Borrower and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 10.20.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Interim Term Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by a Lender of any Interim Term
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this
Agreement or any Interim Term Loan is transferred from a Lender to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any state thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to agree (for
the benefit of the transferor Lender, the Administrative Agent and the Borrower)
to provide the transferor Lender (and, in the case of any Transferee registered
in the Register, the Administrative Agent and the Borrower) the tax forms and
other documents required to be delivered pursuant to
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66
subsection 3.12(b) or (c) and to comply from time to time with all applicable
U.S. laws and regulations with regard to such withholding tax exemption.
10.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Interim
Term Loan then due and owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(i), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Interim
Term Loan then due and owing to it, or interest thereon, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Interim Term Loan owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of the Borrower. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
10.8 Intercreditor Agreement. The Administrative Agent is
hereby authorized to enter into an intercreditor agreement, in form and
substance reasonably satisfactory to it, to allow up to $75,000,000 in loans
outstanding on the Closing Date and owing to Deutsche Bank AG New York Branch
and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their
respective affiliates, to be equally and ratably secured by the Collateral and
to benefit from guarantees from the Subsidiary Guarantors on a basis which is
pari passu with the Subsidiary Guarantee.
10.9 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be delivered to the
Borrower and the Administrative Agent.
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67
10.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
10.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
10.13 Submission to Jurisdiction; Waivers. (a) The Borrower
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan
Document to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
10.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
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68
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders,
on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.16 [Reserved]
10.17 [Reserved].
10.18 Release of Collateral and Guarantees. (a) The Lenders
hereby agree with the Borrower, and hereby instruct the Administrative Agent,
that if (i) the Borrower attains Release Status, (ii) the Administrative Agent
has no actual knowledge of the existence of a Default, (iii) the Borrower shall
have delivered a certificate of a Responsible Officer stating that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default, and (iv) all Bond Guarantees shall have been released or shall be
released concurrently with the requested release of the Subsidiary Guarantee,
the Administrative Agent shall, at the request and expense of the Borrower, take
such actions as shall be reasonably requested by the Borrower to release its
security interest in all collateral held by it pursuant to the Security
Documents and to release all Subsidiary Guarantors from their obligations under
the Subsidiary Guarantee. In such event, the provisions of subsection 6.10 shall
be deemed terminated and of no further force or effect.
(b) The Lenders hereby agree with the Borrower, and hereby
instruct the Administrative Agent, that if (i) on any date the ratio of
Consolidated Indebtedness on such date to Consolidated Operating Profit for the
four consecutive fiscal quarters most recently ended, is less than 2.50 to 1.00,
(ii) the Administrative Agent has no actual knowledge of the existence of a
Default, (iii) the Borrower shall have delivered a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, and (iv) all Bond Guarantees shall have been
released or shall be released simultaneously with the requested release of the
Subsidiary Guarantee, the Administrative Agent shall, at the request and expense
of the Borrower, take such actions as shall be reasonably requested by the
Borrower to release its security interest in all collateral held by it pursuant
to the Security Documents and to release all Subsidiary Guarantors from their
obligations under the Security Guarantee. In such event, the provisions of
subsection 6.10 shall be deemed terminated and of no further force or effect.
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(c) The Lenders hereby agree with the Borrower, and hereby
instruct the Administrative Agent, that if the Borrower shall have delivered to
the Administrative Agent written that it proposes to sell or otherwise dispose
of any Subsidiary whose stock is pledged pursuant to a Pledge Agreement or which
is a Subsidiary Guarantor, and such disposition is permitted by this Agreement,
the Administrative Agent shall, at the request and expense of the Borrower, take
such actions as shall be reasonably requested by the Borrower to release its
security interest in the stock of such Subsidiary to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees.
10.19 [Reserved]
10.20 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower or any Subsidiary
in connection with this Agreement; provided, however, that any Lender may
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Lender by any such authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the discretion of
any other Governmental Authority, (e) to such Lender's Affiliates, independent
auditors and other professional advisors or (f) to any Transferee or potential
Transferee; provided that such Transferee agrees to comply with the provisions
of this subsection 10.20.
10.21 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
75
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXX CORPORATION
By: /s/
--------------------------------
Title:
76
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/
--------------------------------
Title:
77
CITICORP USA, INC., as Co-
Syndication Agent and as a Lender
By: /s/
--------------------------------
Title:
78
DEUTSCHE BANK AG NEW YORK BRANCH, as
Documentation Agent
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
79
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as a
Lender
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
80
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/
--------------------------------
Title:
81
CREDIT SUISSE FIRST BOSTON, as Co-
Syndication Agent and as a Lender
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/
--------------------------------
Title:
00
XXX XXXX XX XXXX XXXXXX
By: /s/
--------------------------------
Title:
84
BANK OF AMERICA NT & SA
By: /s/
--------------------------------
Title:
85
SCHEDULE I
COMMITMENTS; ADDRESSES
A. Commitment Amounts
===================================================================
LENDER COMMITMENT
-------------------------------------------------------------------
Citicorp USA, Inc. 210,000,000
-------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch 105,000,000
-------------------------------------------------------------------
The Chase Manhattan Bank 105,000,000
-------------------------------------------------------------------
Xxxxxx Xxxxxxx Senior Funding, Inc. 700,000,000
-------------------------------------------------------------------
Credit Suisse First Boston 105,000,000
-------------------------------------------------------------------
Toronto Dominion (Texas), Inc. 35,000,000
-------------------------------------------------------------------
The Bank of Nova Scotia 35,000,000
-------------------------------------------------------------------
Bank of America NT & SA 105,000,000
-------------------------------------------------------------------
Total 1,400,000,000
===================================================================
86
B. ADDRESSES FOR NOTICES
---------------------
BANKERS TRUST COMPANY (CHICAGO)
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX XXXXXXX XXXX XXXXXX ADVISORS INC.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANK OF NOVA SCOTIA (CHICAGO)
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CREDIT SUISSE FIRST BOSTON
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
DEUTSCHE BANK SECURITIES INC.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx-Xxxxx Mikolayczyk
Tel: (000) 000-0000
Fax: (000) 000-0000
TORONTO DOMINION (TEXAS), INC.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
87
TORONTO DOMINION BANK (NEW YORK)
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CHASE MANHATTAN CORPORATION (HEADQUARTERS)
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANK OF NOVA SCOTIA (CHICAGO)
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANKAMERICA (CHICAGO)
000 XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLAND BRANCH
00 Xxxx 00xx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx-Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CITICORP SECURITIES INC.
000 Xxxx Xxxxxx, Xxxx 00, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
88
SCHEDULE II
[Reserved]
89
SCHEDULE III
[Reserved]
90
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Company Pledge Agreement, dated as of the date hereof, made
by the U.S. Borrower, Lear Operations Corporation and Xxxx Corporation
Automotive Systems, pledging 100% of the stock of Lear Operations Corporation
and Xxxx Corporation Automotive Holdings in favor of the General Administrative
Agent, substantially in the form of Exhibit Q to the Agreement.
2. Pledge Agreement to be entered into within 60 days after the
Closing Date in respect of 65% of the capital stock of Lear Germany.
91
SCHEDULE V
[RESERVED]
92
SCHEDULE VI
SUBSIDIARIES1
DOMESTIC SUBSIDIARIES:
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Amtex, Inc. Pennsylvania 50% Xxxx Corporation
Xxxxx Manufacturing Company Ohio 100% Xxxx Corporation Automotive Holdings
Corporate Eagle Two LLC 50% LCT, Inc.
Detroit Automotive Interiors L.L.C. Michigan 49% Xxxx Corporation
Essex International de Chihuahua, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
General Seating of America, Inc. Delaware 50% Xxxx Corporation
Industrial Electrical Specialties, Inc. Delaware 55% Xxxx Corporation Automotive Holdings
IPCO Inc. Delaware 100% Xxxx Corporation Automotive Holdings
LCT, Inc. Michigan 100% Xxxx Corporation
Xxxx Corporation (Germany) Ltd. Delaware 100% Xxxx Corporation
Xxxx Corporation Global Development, Inc. Delaware 100% Xxxx Corporation
Xxxx Corporation Mendon Delaware 100% Xxxx Corporation
Lear Xxxxxxxx Overhead Systems, L.L.C. Michigan 50% Xxxx Corporation
Lear East L.P. Pennsylvania 100% Lear East, Inc. (99%); Xxxx
Corporation Global Development, Inc.
(1%)
Lear East, Inc. Delaware 100% Lear Operations Corporation
Lear Investments Company, L.L.C. Delaware 100% Xxxx Corporation
Lear Mexican Holding, L.L.C. Delaware 100% Xxxx Seating Holdings Corp. #50
Lear Midwest Automotive, Limited Delaware 100% Lear Midwest, Inc. (99.9%); Lear
Partnership Corporation Mendon (0.1%)
Lear Midwest, Inc. Kentucky 100% Lear Operations Corporation
Lear Operations Corporation Delaware 100% Xxxx Corporation
Xxxx Seating Holdings Corp. #50 Delaware 100% Xxxx Corporation
Xxxx Seating Holdings Corp. #100 Delaware 100% Xxxx Corporation
Lear Technologies, L.L.C. Delaware 100% Xxxx Corporation
Lear Trim L.L.C. Delaware 100% NAB Corporation (99.9%); Xxxx
Corporation (.1%)
-------------------------------------------
1. After giving effect to the UT Automotive Acquisition.
93
2
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Masland Transportation, Inc. Delaware 100% Xxxx Corporation
Motors Acquisition Corporation Delaware 100% Xxxx Corporation
NAB Corporation Delaware 100% Xxxx Corporation
Precision Fabrics Group North Carolina 29% Xxxx Corporation
Superior Coach Corporation Ohio 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive (Japan), Inc. Delaware 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive (U.K.) Delaware 100% Xxxx Corporation Automotive Holdings
Limited
United Technologies Automotive Systems, Inc. Ohio 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
United Technologies Furukawa Corporation Delaware 51% Xxxx Corporation Automotive Holdings
UT Automitive Advanced Technology, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
UT Automotive Dearborn, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
Xxxx Corporation Automotive Holdings Delaware 100% Lear Operations Corporation
Xxxxxx Industries, Inc. Indiana 100% Xxxx Corporation Automotive Holdings
94
3
FOREIGN SUBSIDIARIES:
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
AB Extruding Sweden 100% Xxxx Corporation Sweden AB
AB Trelleborgsplast Sweden 100% Xxxx Corporation Sweden AB
All Automotive Industries Canada Inc. Canada 100% Xxxx Corporation
Alfombras San Xxxx S.A. Argentina 100% Industria Textil Dragui X.X.
Xxxxxxxxxx B.V. Netherlands 100% Xxxx Corporation
Asia Pacific Components Co., Ltd. Thailand 98% Xxxx Seating (Thailand) Corp., Ltd.
Auto Interiors India Private Ltd. India 25%
Autoform Kunsrstoffeile GmbH Germany 69% Gruppo Pianfej S.r.L (44%); Pianfei Glass
SA (25%)
Autoform Kunststoffteile GmbH & Co Germany 70.89% Gruppo Pianfej S.r.L (45.2%); Pianfei
KG Glass SA (29.69%)
Autotrim, S.A. de C.V. Mexico 40% Interiores Automotrics Xxxxx X.X. de
C.V.
AVB Anlagen und Vorrichtungsbau Germany 55% Xxxx Corporation Bereiligungs GmbH
Aviken Plast AB Sweden 100% Xxxx Corporation Gnosjoplast AB
Chongqing Xxxx Xxxxx'an Automotive China 35.75% Xxxx Corporation China Ltd.
Interior Trim Co., Ltd.
Consorcio Industrial Mexicanos de Mexico 100% Xxxx Corporation 99.4%; Empresas
Autopartes S.A. de C.V. Industriales Mexicanos de Autopartes,
S.A. de C.V. .6%
Davart Group Ltd. UK 100% Xxxx Corporation UK Interior Systems
Limited
Xxxxxxxx Eurotrim Ltd. Ireland 50% Lear Xxxxxxxx Overhead Systems, L.L.C.
El Trim (Pty.) Ltd. Italy 51% Xxxx Corporation Beteiligungs GmbH
Empetek autodily s.r.o. Czech Republic 50% Lear Xxxxxxxx Overhead Systems, L.L.C.
Empresas Industriales Mexicanos de Mexico 74.98% Xxxx Corporation
Autopartes, S.A. de C.V.
Favesa S.r.l. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Gate Deutschland GmbH Germany 100% Xxxx Corporation Automotive Holdings
Gate France S.A. France 99.760% Xxxx Corporation Automotive Holdings
Gate S.p.A. Italy 100% Xxxx Corporation Automotive Holdings
Gate UK Limited U.K. 100% Xxxx Corporation Automotive Holdings
General Seating of Canada Ltd. Canada 50% Xxxx Corporation Canada, Ltd.
General Seating of Thailand Corp. Ltd. 50% Xxxx Corporation
95
4
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
Gruppo Pianfei S.r.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
Xxxxxxxx Xxxx Plastifol Dynamics Ltd. UK 33.3% Xxxx Corporation Drahtfedem GmbH
Xxxxx Xxxx Automotive Parts Private India 50% Xxxx Corporation
Ltd.
Hubei UTA-Xianfeng Auto Electric China 100% Xxxx Corporation Automotive Holdings
Company, Ltd.
Industria Textil Dragui S.A. Argentina 100% Industrias Lear de Argentina, S.A.
Industrias Cousin Xxxxxx, X.X. Spain 49.99% Xxxx Corporation Italia S.p.A..
Industrias Lear de Argentina, S.A. Argentina 100% Xxxx Corporation
Industrias Lear Trim S. de X.X. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Inteco S.p.A. Italy 100% Strapazzini Auto S.p.A. (99%), Xxxx
Corporation Italia Holding S.r.L. (1%)
Interiores Automotrices Xxxxx X.X. de Mexico 40% Lear Operations Corporation
C.V.
Interiores Para Autos, S.A. de C.V. Mexico 40% Interiores Auto Matricies Xxxxx X.X. de
C.V.
Interni S.A. Brazil 25%
Jiangxi Jiangling Lear Interior Systems China 32% Xxxx Corporation China Ltd.
Co. Ltd.
Xxxx Xxxxxx Plastics Ltd. UK 100% Xxxx Corporation UK Interior Systems
Limited
L.S. Servicos Ltds. Brazil 100% Xxxx Corporation
Xxxx Automotive Corporation Singapore Singapore 100% Xxxx Corporation
Pte. Ltd.
Lear Bahia Ltd. Brazil 100% Lear do Brazil Ltda.
Lear Belgium Newco Belgium 100% Xxxx Corporation
Lear Brits (SA)(Pty.) Ltd. South Africa 100% Xxxx Corporation
Lear Car Seating do Brasil Ltda. Brazil 100% L.S. Servicos Ltda.
Xxxx Corporation (Nottingham) Limited UK 100% Xxxx Corporation (UK) Limited)
Xxxx Corporation (S.A.)(Pty.) Ltd. South Africa 100%
Xxxx Corporation (SSD) Ltd. UK 100% Lear UK ISM Limited
Xxxx Corporation (SSD) NV Belgium 100% Xxxx Corporation
Xxxx Corporation (UK) Ltd. UK 100% Lear UK Acquisition Limited
Xxxx Corporation Asientos, S.A. Spain 100% Xxxx Corporation Spain X.X.
Xxxx Corporation Australia Pty. Ltd. Australia 100% Xxxx Corporation
96
5
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
Xxxx Corporation Austria GmbH Austria 100% Xxxx Corporation Beteiligungs GmbH
Xxxx Corporation Austria GmbH & Co. Austria 100% Xxxx Corporation Beteiligungs GmbH
KG (99%); Xxxx Corporation Austria GmbH
(1%)
Xxxx Corporation Automotive South Africa 100%
Components (Pty.) Ltd.
Xxxx Corporation Beteiligungs GmbH Germany 100% Xxxx Corporation (Germany) Ltd.
Xxxx Corporation Drabtfedern GmbH Germany 100% Xxxx Corporation Beteiligungs GmbH
Xxxx Corporation Canada Ltd. Ontario 100% Xxxx Corporation
Lear Canada Investments Ltd. Ontario 100% Xxxx Corporation
Xxxx Corporation China Ltd. Mauritius 65%
Xxxx Corporation France S.A.R.L. France 100% Xxxx Corporation
Xxxx Corporation GmbH & Co. KG Germany 100% Xxxx Corporation Drahtfedern GmbH
Xxxx Corporation Holdings Spain S.L. 100% Xxxx Corporation
Xxxx Corporation Hungary KFT 100% Xxxx Corporation Drahtfedern GmbH
Xxxx Corporation Interior Compenents South Africa 100% Xxxx Corporation
(Pty.) Ltd.
Xxxx Corporation Italia Holding S.r.L. Italy 100% Xxxx Corporation
Xxxx Corporation Italia S.p.A. Italy 100% Xxxx Corporation Italia Holdings S.r.L.
Xxxx Corporation Italia Speciality Car Italy 100% Xxxx Corporation Italia Holding S.r.L
Group S.r.L.
Xxxx Corporation Italia Sud S.p.A. Italy 100% Xxxx Corporation Italia S.p.A.
Xxxx Corporation Mexico S.A. de C.V. Mexico 99.6% Lear Holdings S.r.l. de X.X.
Xxxx Corporation Poland Gliwice Poland 100% Xxxx Corporation
S.p.zo.x.
Xxxx Corporation Poland II S.p.zo.o. Poland 100% Xxxx Corporation
Xxxx Corporation Poland S.p.zo.o. Poland 100% Xxxx Corporation
Xxxx Corporation Portugal-Components Portugal 100% Xxxx Corporation
Para Automovers, Lda.
Xxxx Corporation Spain S.L. 100% Xxxx Corporation Holdings Spain X.X.
Xxxx Corporation Sweden AB Sweden 100% Xxxx Corporation
Xxxx Corporation Sweden Gnosjoplast Sweden 100% Xxxx Corporation Sweden AB
XX
Xxxx Corporation UK Holdings Ltd. UK 100% Xxxx Corporation
97
6
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
Xxxx Corporation UK Interior Systems UK 100% Xxxx Corporation UK Holdings Ltd.
Ltd.
Xxxx Corporation Verwaltungs GmbH Germany 100% Xxxx Corporation Drahtfedern GmbH
Lear de Venezuela, C.A. Venezuela 100% Xxxx Corporation
Lear de Brazil ltda. Brazil 100% Xxxx Corporation
Lear Xxxxxxxx Mexico, S. de X.X. de (50%) Lear Xxxxxxxx Overhead Systems, L.L.C.
C.V.
Lear Foreign Sales Group US Virgin 100% Xxxx Corporation
Islands
Lear Holdings S.r.L. de C.V. (50%) Lear Mexican Holdings, L.L.C.
Lear Inespo Comercial Industrial Ltda. Brazil 50.01% Xxxx Corporation
Lear JIT (Pty.) Ltd. South Africa 51% Xxxx Corporation Drahtfedern GmbH
Lear North West (Pty.) Ltd. South Africa 100% Xxxx Corporation
Xxxx Seating (Thailand) Corp., Ltd. Thailand 98% Xxxx Corporation
Xxxx Seating Private Limited India [49%] Ramco Investments Limited
Lear Sewing (Pty) Ltd. South Africa 51% Xxxx Corporation Drahtfedern GmbH
Lear Teknik Oto Yan Sanayi Limited Turkey 66.67% Xxxx Corporation
Sirket
Lear UK Acquisition Limited UK 100% Xxxx Corporation UK Holdings Limited
Lear UK ISM Limited UK 100% Xxxx Corporation (UK) Limited
Xxxx Xxxxxxxxx Seating Private Limited India 50% Ramco Investments Limited
LECA S.p. zo.o Poland 100% Xxxx Corporation
Markol Otomotiv Yan Sanayi VE Turkey 35% Xxxx Corporation
Ticaret A.S.
Masland (UK) Limited UK 100% Xxxx Corporation
Masland Industries of Canada Limited Canada 100% Xxxx Corporation
Mecanismos Auxiliarios Industriales, Spain 99.9% Xxxx Corporation Automotive Holdings
S.A.
No-Sag Drahtfedern Xxxxxxx & Co. KG Austria 62.5% Xxxx Corporation Drahtfedern GmbH
OOO Lear Russia 100% Xxxx Corporation Global Development,
Inc.
Pianfei Engineering S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Glass SA Spain 35% Gruppo Pianfei S.r.L.
Pianfei Ipa X.xX. Italy 100% Gruppo Pianfei S.r.L. (98%); Xxxx
Corporation Italia Holding S.r.L. (2%)
Pianfei Melti S.r.L. Italy 73% Xxxx Corporation Italia Holding S.r.L.
98
7
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
Pianfei Sicilia S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Sud S.r.L. Italy 100% Gruppo Pianfei S.r.L. (70%);
Pianfei Xxxxx S.r.L. (30%)
Polovat Auto Sp.zo.o. Poland 100% Polovar Sp.z.o.o.
Polovat Sp.zo.o. Poland 100% Arbirario B.V.
Protos S.r.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
PRPI S.p.A. (in liquidation) Italy 85% Gruppo Pianfei S.r.L.(18%); Pianfei
Engineering S.r.L. (67%)
Xxxx Handels GmbH Austria 100% Xxxx Corporation Bereiligungs GmbH
Ramco Investments Limited Mauritius 100% Xxxx Corporation
Rolloplast Formsprutning AB Sweden 100% Xxxx Corporation Gnosjoplast AB
S.A.L.B.I. AB Sweden 50% Xxxx Corporation Sweden AB
Shanghai Lear Automobile Interior China 35.75% Xxxx Corporation China Ltd.
Trim Co., Ltd.
Shanghai Songjiang Xxxx Automotive China 35.75 Xxxx Corporation China Ltd.
Carpet & Accoustics Co. Ltd.
Siam UT Automotive Co., Ltd. Thailand 99.9976% Xxxx Corporation Automotive Holdings
Societe No Sag Francaise France 56% Xxxx Corporation France S.A.R.L.
Societe Offran-Villaise de Technologie, France 100% Xxxx Corporation France S.A.R.L.
S.A.
Xxxxxx Xxxxxxx (UK) Limited UK 50% Masland (UK) Limited
Xxxxxxx GmbH Austria 62.5% Xxxx Corporation Drahtfedern GmbH
Stapur SA Argentina 5% Xxxx Corporation Automotive Holdings
Strapazzini Auto S.p.A. 100% Strapazini Resine S.r.L. (1%)
Strapazzini Resine S.r.L. (99%)
Strapazzini Resine S.R.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
SWECA Sp.z.o.o. Poland 100% Xxxx Corporation
United Technologies Automotive Argentina 100% Xxxx Corporation Automotive Holdings
(Argentina) S.A.
United Technologies Automotive France 99.75% Xxxx Corporation Automotive Holdings
(Europe) S.A.
United Technologies Automotive France 100% Xxxx Corporation Automotive Holdings
(France) S.A.R.L.
United Technologies Automotive Honduras 98% Xxxx Corporation Automotive Holdings
(Honduras) S.A.
99
8
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
United Technologies Automotive Hungary 100% Xxxx Corporation Automotive Holdings
(Hungary) Kft
United Technologies Automotive Philippines 99.9% Xxxx Corporation Automotive Holdings
(Philippines), Inc.
United Technologies Automotive Poland 75% Xxxx Corporation Automotive Holdings
(Poland) Sp.zo.o.
United Technologies Automotive Mexico 99.9% Xxxx Corporation Automotive Holdings
Electrical Systems de Mexico, S.A. de
C.V.
United Technologies Gate Espana, S.A. Spain 99.992% Xxxx Corporation Automotive Holdings
UPM S.r.L. Italy 39% Gruppo Pianfei S.r.L.
UT Automotive (Netherlands) B.V. Netherlands 100% Xxxx Corporation Automotive Holdings
UT Automotive (Poland) Sp.zo.o. Poland 100% Xxxx Corporation Automotive Holdings
UT Automotive (Portugal) Components Portugal 100% Xxxx Corporation Automotive Holdings
De Automovies S.A.
UT Automotive Almussafes Services, Spain 99% Xxxx Corporation Automotive Holdings
S.A.
UT Automotive Services Netherlands Netherlands 100% Xxxx Corporation Automotive Holdings
B.V.
UT Automotive Tunisia S.A. Tunisia 99.98% Xxxx Corporation Automotive Holdings
UT Loewe Automotive Electronics Germany 100% Xxxx Corporation Automotive Holdings
GmbH
UT Automotive Saerouns Service, Germany 100% Xxxx Corporation Automotive Holdings
GmbH
Wuhan UTA-DCAC Auto Electric China 75% Xxxx Corporation Automotive Holdings
Company, Limited
P.T. Xxxx Corporation Indonesia 51% Xxxx Corporation
F.G. Microdesign Italy 70% Xxxx Corporation Automotive Holdings
100
SCHEDULE VII
HAZARDOUS MATERIAL
The Borrower has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("Superfund") at the Organic Chemical site in
Grandville, MI, A-1 Disposal Site in Plainwell, MI, the Thermo-Chem site in
Muskegon, MI, the Sunrise landfill in Wayland Township, MI, and the Ostego
landfill in Michigan. In addition, the Borrower has received settlement offers
to resolve its responsibility at the PCB, Inc. site in Kansas City, KS and MO
($2500.00) and the ABC Barrel and Drum site in Detroit, MI ($8500.00). Although
liability at the sites has not been finalized, the Borrower believes that
expected liability is not material.
101
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated February 1, 1994, between Xxxx Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the Borrower's 81/4%
Subordinated Notes.
2. Indenture, dated July 1, 1996 between Xxxx Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's 9
1/2% Subordinated Notes.
3. Loan Agreement between NS Beteiligungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the Fiat Xxxx Xxxxxxxx,
XXX, XXX, Delphi, Borealis, Masland Industries, Automotive Industries,
Xxxxxx, Pianfei, Strapazzini, Dragui, Polovat and Ovatex acquisitions
and agreements governing indebtedness which refinance such
indebtedness.
5. Loan Agreement between Xxxx Corporation Canada Ltd. and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
6. Loan Agreement, dated January 27, 1993, between Xxxx Corporation Canada
Ltd. and the Province of Ontario, Canada.
7. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission
and Cumberland Plateau Company.
8. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
9. Agreement governing working capital Indebtedness of Xxxx Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.
10. Term Loan Agreement between Xxxx Corporation and Toronto Dominion
(Texas), Inc. (as amended).
11. Term Loan Agreement between Xxxx Corporation and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch (as amended).
102
SCHEDULE IX
AGENTS
===========================================================================
INSTITUTION AGENCY
---------------------------------------------------------------------------
The Chase Manhattan Bank Administrative Agent
---------------------------------------------------------------------------
Sole Book Manager and
Chase Securities Inc. Sole Lead Arranger
---------------------------------------------------------------------------
Citicorp USA, Inc. Co-Syndication Agent
---------------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch Documentation Agent
---------------------------------------------------------------------------
Xxxxxx Xxxxxxx Senior Funding, Inc. Managing Agent
---------------------------------------------------------------------------
Credit Suisse First Boston Co-Syndication Agent
---------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. Managing Agent
---------------------------------------------------------------------------
The Bank of Nova Scotia Managing Agent
---------------------------------------------------------------------------
Bank of America NT &SA Managing Agent
===========================================================================
