Contract
|
dated
as of
June 28,
2006,
Amended
as of
August 9,
2006
among
AMERICAN
AXLE & MANUFACTURING, INC.,
AMERICAN
AXLE & MANUFACTURING HOLDINGS, INC.,
The
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
BANK
OF AMERICA, N.A.,
as
Syndication Agent
___________________________
X.X.
XXXXXX SECURITIES INC.
and
BANC
OF AMERICA SECURITIES LLC,
as
Joint Lead Arrangers and Joint Bookrunners
|
TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
SECTION
1.01. Defined Terms
SECTION
1.02. Classification of Loans and Borrowings
SECTION
1.03. Terms Generally
SECTION
1.04. Accounting Terms; GAAP
ARTICLE
II
The
Loans
SECTION
2.01. Commitments
SECTION
2.02. Loans and Borrowings
SECTION
2.03. Funding of Borrowings
SECTION
2.04. Interest Elections
SECTION
2.05. Termination of Commitments
SECTION
2.06. Repayment of Loans; Evidence of Debt
SECTION
2.07. Prepayment of Loans.
SECTION
2.08. Administrative Fees
SECTION
2.09. Interest
SECTION
2.10. Alternate Rate of Interest
SECTION
2.11. Increased Costs
SECTION
2.12. Break Funding Payments
SECTION
2.13. Taxes
SECTION
2.14. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
SECTION
2.15. Mitigation Obligations; Replacement of Lenders
ARTICLE
III
Representations
and Warranties
SECTION
3.01. Organization; Powers
SECTION
3.02. Authorization; Enforceability
SECTION
3.03. Governmental Approvals; No Conflicts
SECTION
3.04. Financial Condition; No Material Adverse Change
SECTION
3.05. Litigation and Environmental Matters
SECTION
3.06. Compliance with Laws and Agreements
SECTION
3.07. Investment Company Status
SECTION
3.08. Taxes
SECTION
3.09. ERISA
SECTION
3.10. Disclosure
SECTION
3.11. Subsidiaries
ARTICLE
IV
Conditions
[Intentionally
Omitted]
ARTICLE
V
Affirmative
Covenants
SECTION
5.01. Financial Statements and Other Information
SECTION
5.02. Notices of Material Events
SECTION
5.03. Existence; Conduct of Business
SECTION
5.04. Payment of Obligations
SECTION
5.05. Maintenance of Properties; Insurance
SECTION
5.06. Books and Records; Inspection Rights
SECTION
5.07. Compliance with Laws
SECTION
5.08. Use of Proceeds
SECTION
5.09. Additional Guarantors
ARTICLE
VI
Negative
Covenants
SECTION
6.01. Indebtedness
SECTION
6.02. Liens
SECTION
6.03. Fundamental Changes
SECTION
6.04. Restricted Payments
SECTION
6.05. Transactions with Affiliates
SECTION
6.06. Restrictive Agreements
SECTION
6.07. Sales of Assets and Subsidiary Stock
ARTICLE
VII
Events
of
Default
ARTICLE
VIII
The
Administrative Agent
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices
SECTION
9.02. Waivers; Amendments
SECTION
9.03. Expenses; Indemnity; Damage Waiver
SECTION
9.04. Successors and Assigns
SECTION
9.05. Survival
SECTION
9.06. Counterparts; Integration; Effectiveness
SECTION
9.07. Severability
SECTION
9.08. Right of Setoff
SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of Process
SECTION
9.10. WAIVER OF JURY TRIAL
SECTION
9.11. Headings
SECTION
9.12. Confidentiality
SECTION
9.13. Interest Rate Limitation
SCHEDULES:
Schedule
2.01 -- Existing Term Loans
Schedule
3.05 -- Disclosed Matters
Schedule 3.11
-- Subsidiaries
Schedule
6.01 -- Existing Indebtedness
Schedule
6.02 -- Existing Liens
Schedule
6.05 -- Existing Transactions with Affiliates
Schedule
6.06 -- Existing Restrictions
EXHIBITS:
Exhibit
A
-- Form of Guarantee Agreement
Exhibit
B
-- Form of Assignment and Assumption
CREDIT
AGREEMENT dated as of June 28, 2006, as amended as of August 9, 2006, among
AMERICAN AXLE & MANUFACTURING, INC., AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC., the LENDERS party hereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, and BANK OF AMERICA, N.A., as Syndication
Agent.
WHEREAS,
the Borrower, the Parent, certain lenders party thereto and the Administrative
Agent are parties to a Credit Agreement dated as of June 28, 2006 (as amended,
the “Existing
Credit Agreement”),
as in
effect immediately prior to the Amendment Effective Date (as defined
herein);
WHEREAS,
the Borrower, the Parent, certain lenders party thereto and JPMorgan Chase
Bank,
N.A., as Administrative Agent, are parties to the Amendment Agreement dated
as
of August 9, 2006 (the “Amendment
Agreement”);
WHEREAS,
subject to the satisfaction of the conditions set forth in the Amendment
Agreement, the Existing Credit Agreement shall be amended as provided
herein;
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms.
As used
in this Agreement, the following terms have the meanings specified
below:
“ABR”,
when
used in reference to any Loan or Borrowing, refers to whether such Loan,
or the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Alternate Base Rate.
“Account”
means,
collectively, (a) an “account” as such term is defined in the Uniform
Commercial Code as in effect from time to time in the State of New York or
under
other relevant law, (b) a “payment intangible” as such term is defined in
the Uniform Commercial Code as in effect from time to time in the State of
New
York or under other relevant law, and (c) the Parent’s or any Subsidiary’s
rights to payment for goods sold or leased or services performed or rights
to
payment in respect of any monetary obligation owed to the Parent or any
Subsidiary, including all such rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of indebtedness or
security.
“Acquired/Disposed
EBITDA”
means,
with respect to any Acquired Entity or Business or any Sold Entity or Business
(any of the foregoing, a “Pro
Forma Entity”)
for
any period, the Consolidated Net Income of such Pro Forma Entity for such
period
plus (a) without duplication and to the extent deducted in determining such
Consolidated Net Income for such Pro Forma Entity, the sum of (i) income
tax
expense for such period, (ii) gross interest expense for such period (including
interest-equivalent costs associated with any Permitted Receivables Financing,
whether accounted for as interest expense or loss on the sale of Receivables),
(iii) depreciation and amortization expense for such period, (iv) any special
charges and any extraordinary or nonrecurring losses for such period and
(v)
other non-cash items reducing Consolidated Net Income for such period, and
minus
(b) without duplication and to the extent included in determining Consolidated
Net Income, (i) interest income for such period, (ii) extraordinary or
nonrecurring gains for such period and (iii) other non-cash items increasing
Consolidated Net Income for such period, all determined on a consolidated
basis
for such Pro Forma Entity in accordance with GAAP.
“Acquired
Entity or Business”
has
the
meaning assigned to such term in the definition of “Consolidated
EBITDA”.
“Adjusted
LIBO Rate”
means,
with respect to any Eurodollar Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal
to
(a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
“Administrative
Agent”
means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
Lenders hereunder.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Alternate
Base Rate”
means,
for any day, a rate per annum equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus ½ of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or
the
Federal Funds Effective Rate, respectively. If for any reason the Administrative
Agent shall have determined that it is unable after due inquiry 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 hereof, the Alternate Base Rate shall be determined without regard
to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist.
“Amendment
Agreement”
has
the
meaning assigned to such term in the recitals hereto.
“Amendment
Effective Date”
has
the
meaning assigned to such term in the Amendment Agreement.
“Amendment
Transactions”
means
the execution and delivery of the Amendment Agreement by each Person party
thereto, the satisfaction of the conditions to effectiveness thereof and
the
consummation of the transactions contemplated thereby, including the borrowing
of the Incremental Term Loans on the Amendment Effective Date and the use
of
proceeds thereof.
“Applicable
Percentage”
means,
with respect to any Lender, the percentage of the total Commitments or
outstanding Loans, as applicable, represented by such Lender’s Commitment or
outstanding Loans, as applicable. If the Commitments have terminated and
all
Loans have been repaid, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect or outstanding Loans at the
time of
repayment, as applicable.
“Applicable
Rate”
means,
for any day, (a) with respect to any ABR Loan, 3.25%, and
(b) with respect to any Eurodollar Loan, 4.25%.
“Approved
Fund”
has
the
meaning assigned to such term in Section 9.04.
“Arrangers”
means
X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, each in its
capacity as joint lead arranger in respect of the credit facility established
hereunder.
“Asset
Disposition”
means
any sale, lease, transfer or other disposition (or series of related sales,
leases, transfers or dispositions) by the Parent or any Subsidiary, including
any disposition by means of a merger, consolidation or similar transaction
(each
referred to for the purposes of this definition as a “disposition”),
of:
(a) any
Equity Interests of a Subsidiary (other than directors’ qualifying shares or
shares required by applicable law to be held by a Person other than the Parent
or a Subsidiary);
(b) all
or substantially all the assets of any division or line of business of the
Parent or any Subsidiary; or
(c) any
other assets of the Parent or any Subsidiary outside of the ordinary course
of
business of the Parent or such Subsidiary
other
than, in the case of clauses (a), (b) and (c) above,
(i) a
disposition by a Subsidiary to the Parent or by the Parent or a Subsidiary
to a
Subsidiary;
(ii) a
disposition that constitutes a Restricted Payment (or would constitute a
Restricted Payment but for the exclusions from the
definition thereof) and that is not prohibited
by Section
6.04;
(iii) a
disposition of assets with a fair market value of less than
$10,000,000;
(iv) the
lease, assignment, sublease, license or sublicense of any real or personal
property in the ordinary course of business and consistent with past
practice;
(v) foreclosure
on assets or transfers by reason of eminent domain;
(vi) disposition
of accounts receivable in connection with the collection or compromise
thereof;
(vii) a
disposition of surplus, obsolete or worn out equipment or other property
in the
ordinary course of business;
(viii) assignments
and sales of Receivables and Related Security pursuant to a Permitted
Receivables Financing;
(ix) any
substantially concurrent exchange of assets of comparable value to be used
in a
Related Business;
(x) a
disposition of cash or Cash Equivalents; and
(xi) the
creation of a Lien (but not the sale or other disposition of the property
subject to such Lien).
“Asset
Disposition Offer”
has
the
meaning assigned to such term in Section 2.07(b)(ii).
“Assignment
and Assumption”
means
an assignment and assumption entered into by a Lender and an assignee (with
the
consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit B or any other
form approved by the Administrative Agent.
“Average
Life”
means,
as of the date of determination, with respect to any Indebtedness, the quotient
obtained by dividing:
(a) the
sum of the products of the numbers of years from the date of determination
to
the dates of each successive scheduled principal payment of or redemption
or
similar payment with respect to such Indebtedness multiplied by the amount
of
such payment by
(b) the
sum of all such payments.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States
of
America.
“Borrower”
means
American Axle & Manufacturing, Inc., a Delaware
corporation.
“Borrowing”
means
Loans of the same Type, made, converted or continued on the same date and,
in
the case of Eurodollar Loans, as to which a single Interest Period is in
effect.
“Business
Day”
means
any day that is not a Saturday, Sunday or other day on which commercial banks
in
New York City are authorized or required by law to remain closed;
provided
that,
when used in connection with a Eurodollar Loan, the term “Business
Day”
shall
also exclude any day on which banks are not open for dealings in deposits
in the
London interbank market.
“Capital
Lease Obligations”
of
any
Person means the obligations of such Person to pay rent or other amounts
under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Cash
Equivalents”
means:
(a) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
or
instrumentality thereof to the extent such obligations are backed by the
full
faith and credit of the United States of America),
(b) investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least A-1
by
S&P or P-1 by Moody’s;
(c) investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 270 days from the date of acquisition thereof issued or guaranteed
by or placed with, and money market deposit accounts issued or offered by,
(i) any Lender, (ii) any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof
or
any foreign country recognized by the United States of America which has
a
combined capital and surplus and undivided profits of not less than $250,000,000
(or the foreign currency equivalent thereof) or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx’x is at least P-1 or the equivalent
thereof;
(d) fully
collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c)
above;
(e) money
market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940,
(ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000;
(f) securities
with maturities of six months or less from the date of acquisition issued
or
fully guaranteed by any State, commonwealth or territory of the United States
of
America, or by any political subdivision or taxing authority thereof, and
rated
at least A by S&P or Moody’s;
(g) in
the case of any Foreign Subsidiary, (i) direct obligations of the sovereign
nation (or any agency thereof) in which such Subsidiary is organized and
is
conducting business or in obligations fully and unconditionally guaranteed
by
such sovereign nation (or any agency thereof), (ii) investments of the type
and
maturity described in clauses (a) through (f) above of foreign obligors,
which
investments or obligors (or the parents of such obligors) have ratings described
in such clauses or equivalent ratings from comparable foreign rating agencies
and (iii) investments of the type and maturity described in clauses (a)
through (f) above of foreign obligors (or the parents of such obligors),
which investments of obligors (or the parents of such obligors) are not rated
as
provided in such clauses or in clause (ii) above but which are, in the
reasonable judgment of the Parent and the Borrower, comparable in investment
quality to such investments and obligors (or the parents of such obligors);
(h) shares
of mutual funds whose investment guidelines restrict 95% of such funds’
investments to those satisfying the provisions of clauses (a) through (f)
above;
and
(i) time
deposit accounts, certificates of deposits and money market deposits in an
aggregate face amount not in excess 1% of Total Assets of the Parent as of
the
end of the Parent’s most recently completed fiscal year.
“Change
in Control”
means
(a) the acquisition of ownership, directly or indirectly, beneficially or
of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof), of Equity Interests representing more than
35%
of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Parent; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Parent by Persons
who
were neither (i) nominated by the board of directors of the Borrower or the
Parent nor (ii) appointed by directors so nominated; (c) the
acquisition of direct or indirect Control of the Parent by any Person or
group;
(d) the failure of the Parent to own, directly or indirectly, at least 75%
of the outstanding Equity Interests of the Borrower; or (e) at any time that
any
Existing Senior Debt is outstanding, the occurrence of a Change of Control,
as
defined in the indentures referred to in the definitions of “Existing Senior
Debt” and “Convertible Notes”.
“Change
in Control Offer”
has
the
meaning assigned to such term in Section 2.07(c)(iii).
“Change
in Law”
means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after
the
date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.11(b), by any lending office of such Lender or by such Lender’s
holding company, if any) with any request, guideline or directive (whether
or
not having the force of law) of any Governmental Authority made or issued
after
the date of this Agreement.
“Class”,
when
used in reference to any Loan or Borrowing, refers to whether such Loan,
or the
Loans comprising such Borrowing, are Existing Term Loans or Incremental Term
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is an Existing Term Loan Commitment or an Incremental Term Loan
Commitment.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
“Commitment”
means
an Existing Term Loan Commitment or an Incremental Term Loan Commitment or
any
combination thereof (as context requires).
“Consolidated
EBITDA”
means,
of any Person for any period, Consolidated Net Income of such Person for
such
period plus (a) without duplication and to the extent deducted in determining
such Consolidated Net Income, the sum of (i) income tax expense for such
period, (ii) gross interest expense for such period (including
interest-equivalent costs associated with any Permitted Receivables Financing,
whether accounted for as interest expense or loss on the sale of Receivables),
(iii) depreciation and amortization expense for such period, (iv) any special
charges and any extraordinary or nonrecurring losses for such period and
(v)
other non-cash items reducing such Consolidated Net Income for such period,
and
minus (b) without duplication and to the extent included in determining such
Consolidated Net Income, (i) interest income for such period, (ii)
extraordinary or nonrecurring gains for such period and (iii) other non-cash
items increasing such Consolidated Net Income for such period, all determined
on
a consolidated basis in accordance with GAAP; provided
that for
purposes of determining the Leverage Ratio only, (A) there shall be included
in
determining the Consolidated EBITDA of the Parent for any period the
Acquired/Disposed EBITDA of any Person, property, business or asset acquired
outside the ordinary course of business during or after the end of such period
by the Parent or a Subsidiary, to the extent not subsequently sold, transferred
or otherwise disposed of by the Parent or a Subsidiary (each such Person,
property, business or asset acquired and not subsequently so disposed of,
an
“Acquired
Entity or Business”),
based
on the actual Acquired/Disposed EBITDA of such Acquired Entity or Business
for
such period (including the portion thereof occurring prior to such acquisition)
and (B) there shall be excluded in determining Consolidated EBITDA of the
Parent
for any period the Acquired/Disposed EBITDA of any Person, property, business
or
asset sold, transferred or otherwise disposed of outside the ordinary course
of
business by the Parent or any Subsidiary during or after the end of such
period
(each such Person, property, business or asset so sold or disposed of, a
“Sold
Entity or Business”)
based
on the actual Acquired/Disposed EBITDA of such Sold Entity or Business for
such
period (including the portion thereof occurring prior to such sale, transfer
or
disposition).
“Consolidated
Net Income”
means,
of any Person for any period, the net income or loss of such Person for such
period determined on a consolidated basis in accordance with GAAP.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability
to exercise voting power, by contract or otherwise. “Controlling”
and
“Controlled”
have
meanings correlative thereto.
“Convertible
Notes”
means
the 2% senior convertible notes due 2024 issued pursuant to the indenture,
dated
as of February 11, 2004, between the Parent and BNY Midwest Trust Company,
as
trustee.
“Default”
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
“Designated
Secured Indebtedness”
means
Indebtedness secured by a Lien permitted under clause (d) or (e) of
Section 6.02.
“Disclosed
Matters”
means
the actions, suits and proceedings and the environmental matters disclosed
in
Schedule 3.05.
“Disqualified
Stock”
means
any Equity Interest that, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than as a result of a Change in Control), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the option of the holder thereof, in whole
or
in part, or requires the payment of any cash dividend or any other scheduled
payment constituting a return of capital, in each case at any time on or
prior
to the date that is 91 days after the Maturity Date, or (b) is convertible
into or exchangeable (unless at the sole option of the issuer thereof) for
(i) Indebtedness or (ii) any Equity Interest referred to in
clause (a) above, in each case at any time prior to the date that is 91
days after the Maturity Date.
“Dollars”
or
“$”
refers
to lawful money of the United States of America.
“Environmental
Laws”
means
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions or binding agreements issued, promulgated or entered into by
any
Governmental Authority, relating in any way to the environment, preservation
or
reclamation of natural resources or the management, release or threatened
release of any Hazardous Material.
“Environmental
Liability”
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of
the
Parent or any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
“Equity
Interests”
means
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from time
to
time and the regulations promulgated and rulings issued thereunder.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) that, together with the
Parent, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA
Event”
means
(a) any “reportable event”, as defined in Section 4043 of ERISA with
respect to a Plan (other than an event for which the 30-day notice period
is
waived); (b) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to
any
Plan; (d) the incurrence by the Parent or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Parent or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Parent or any of its ERISA Affiliates of any liability
with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Parent or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Parent or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or
in reorganization, within the meaning of Title IV of ERISA.
“Eurodollar”,
when
used in reference to any Loan or Borrowing, refers to whether such Loan,
or the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Adjusted LIBO Rate.
“Event
of Default”
has
the
meaning assigned to such term in Article VII.
“Excluded
Subsidiary”
means,
at any time, any Subsidiary affected by an event referred to in clause (h),
(i)
or (j) of Article VII at such time that would constitute an Event of Default
if
such Subsidiary was not an “Excluded Subsidiary”; provided,
that
(a) no Loan Party shall be an Excluded Subsidiary and (b) a Subsidiary
shall not be an Excluded Subsidiary if such Subsidiary (on a consolidated
basis
with all other Excluded Subsidiaries affected by an event referred to in
clause
(h), (i) or (j) of Article VII and their respective subsidiaries)
(i) account for more than 10% of Total Assets of the Parent or
(ii) account for more than 10% of the consolidated revenues of the Parent
and the Subsidiaries for the most recently ended period of four consecutive
fiscal quarters for which financial statements are available, in each case,
determined in accordance with GAAP.
“Excluded
Taxes”
means,
with respect to the Administrative Agent, any Lender or any other recipient
of
any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income, franchise or similar taxes imposed on (or measured
by) its net income or, in the case of franchise or similar taxes, gross
receipts, by the United States of America, or by the jurisdiction under the
laws
of which such recipient is organized or in which its principal office is
located
or, in the case of any Lender, in which its applicable lending office is
located
or in which such Lender is otherwise doing business, (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed
by any
other jurisdiction in which the Borrower is located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.15(b)), any Tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation
of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.13(a),
(d) any taxes attributable to a failure by a Lender or the Administrative
Agent to comply with Section 2.13(e), (e) any taxes imposed as a result of
a change in the circumstances of such Lender after becoming a Lender hereunder,
other than a change in law or regulation or the introduction of any law or
regulation or a change in interpretation or administration of any law and
(f) all liabilities, penalties and interest with respect to any of the
foregoing Excluded Taxes.
“Existing
Credit Agreement Effective Date”
means
June 28, 2006, the date on which the conditions specified in
Article IV of the Existing Credit Agreement were satisfied.
“Existing
Senior Debt”
means
the 5¼% senior notes due 2014 issued pursuant to the indenture, dated as of
February 11, 2004, between the Borrower and BNY Midwest Trust company, as
trustee, and the Convertible Notes, in each case outstanding as of the Existing
Credit Agreement Effective Date.
“Existing
Term Loan”
means
a
Loan made pursuant to Section 2.01 of the Existing Credit Agreement. The
aggregate principal amount of the Existing Term Loans outstanding on the
Amendment Effective Date (after giving effect to any prepayment on or prior
to
the Amendment Effective Date) is $200,000,000.
“Existing
Term Loan Commitment”
means,
with respect to each Lender, the commitment of such Lender to make Existing
Term
Loans pursuant to Section 2.01 of the Existing Credit
Agreement.
“Existing
Term Loan Lender”
means
a
Lender with an outstanding Existing Term Loan.
“Federal
Funds Effective Rate”
means,
for any day, the weighted average (rounded upwards, if necessary, to the
next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day,
the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it;
provided,
that if
such day is not a Business Day, the Federal Funds Effective Rate for such
day
shall be the same as that for the next preceding Business Day.
“Financial
Officer”
means,
with respect to the Parent or the Borrower, the chief financial officer,
principal accounting officer, treasurer or controller thereof, as
applicable.
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than
that in
which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall
be
deemed to constitute a single jurisdiction.
“Foreign
Subsidiary”
means
any Subsidiary that is organized under the laws of a jurisdiction other than
the
United States of America or any State thereof or the District of
Columbia.
“GAAP”
means
generally accepted accounting principles in the United States of
America.
“Governmental
Authority”
means
the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee”
of
or
by any Person (the “guarantor”)
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having
the economic effect of guaranteeing any Indebtedness or other obligation
of any
other Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any security
for
the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation;
provided,
that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business or customary and reasonable indemnity
obligations entered into in connection with any acquisition or disposition
of
assets permitted under this Agreement.
“Guarantee
Agreement”
means
the Guarantee Agreement, substantially in the form of Exhibit A, among the
Borrower, the Guarantors and the Administrative Agent.
“Guarantors”
means,
as of any date, the Parent and each Subsidiary that either (a) has
Guaranteed
(pursuant to a Guarantee that remains in effect as of such date) the obligations
under the Revolving Credit Agreement or any refinancing or replacement thereof,
or (b) is a Material Subsidiary as of such date.
“Hazardous
Materials”
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
“Incremental
Term Loan”
means
a
Loan made pursuant to Section 3 of the Amendment Agreement.
“Incremental
Term Loan Commitment”
has
the
meaning assigned to such term in the Amendment Agreement.
“Incremental
Term Loan Lender”
means
a
Lender with an Incremental Term Loan.
“Incur”
means
issue, assume, incur, Guarantee or otherwise become liable for; provided
that any
Indebtedness of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed
to
be Incurred by such Person at the time it becomes a Subsidiary. The term
“Incurrence” when use as a noun shall have a correlative meaning. The accretion
of principal of a noninterest bearing or discount security shall not be deemed
the Incurrence of Indebtedness.
“Indebtedness”
of
any
Person means, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid (excluding current
accounts payable incurred in the ordinary course of business), (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary
course
of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to
be secured by) any Lien on property owned or acquired by such Person, whether
or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees
by such Person of Indebtedness of others, (h) all Capital Lease Obligations
of such Person, (i) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of
guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (k) all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock
of
such Person and (l) Receivables Financing Debt. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person
is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor; provided,
that if
the sole asset of such Person is its ownership interest in such other entity,
the amount of such Indebtedness shall be deemed equal to the value of such
ownership interest. For the avoidance of doubt, the Indebtedness of the Borrower
or any other Subsidiary shall not include any obligations of the Borrower
or
such other Subsidiary arising in the ordinary course of business from the
establishment, offering and maintenance by the Borrower or such other
Subsidiary, as the case may be, of trade payables financing programs under
which
suppliers to the Borrower or such other Subsidiary, as the case may be, can
request accelerated payment from one or more designated financial institutions;
provided,
that
(i) the Borrower or such other Subsidiary, as the case may be, reimburses
the designated financial institution or institutions for such accelerated
payment on the date specified in the purchase terms and conditions previously
agreed upon by the applicable supplier and the Borrower or such other
Subsidiary, as the case may be and (ii) had such financial institution or
institutions not paid such obligations to the applicable supplier, such
obligations would have been required to be classified as a trade payable
in the
consolidated financial statements of the Borrower or such other Subsidiary,
as
the case may be, prepared in accordance with GAAP.
“Indemnified
Taxes”
means
Taxes other than Excluded Taxes.
“Interest
Election Request”
means
a
request by the Borrower to convert or continue a Borrowing in accordance
with
Section 2.04.
“Interest
Payment Date”
means
(a) with respect to any ABR Loan, the last day of each March, June,
September and December, and (b) with respect to any Eurodollar Loan, the
last day of the Interest Period applicable to the Borrowing of which such
Loan
is a part and, in the case of a Eurodollar Loan with an Interest Period of
more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day of
such Interest Period.
“Interest
Period”
means,
with respect to any Eurodollar Borrowing, the period commencing on the date
of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter (or such other
period agreed to by each Lender participating in such Borrowing), as the
Borrower may elect; provided,
that
(i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar
month,
in which case such Interest Period shall end on the next preceding Business
Day
and (ii) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most
recent
conversion or continuation of such Borrowing.
“Investment”
in
any
Person means any direct or indirect advance (other than accounts receivable,
trade credit, advances to customers or suppliers, commission, travel and
similar
advances to employees, in each case made in the ordinary course of business),
loan or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash
or
other property to others or any payment for property or services for the
account
or use of others), or any purchase or acquisition of Equity Interests,
Indebtedness or other similar instruments issued by, such Person. If the
Parent
or any Subsidiary issues, sells or otherwise disposes of any Equity Interests
of
a Person that is a Subsidiary such that, after giving effect thereto, such
Person is no longer a Subsidiary, any Investment by the Parent or any Subsidiary
in such Person remaining after giving effect thereto will be deemed to be
a new
Investment at such time. The acquisition by the Parent or any Subsidiary
of a
Person that holds an Investment in a third Person will be deemed to be an
Investment by the Parent or such Subsidiary in such third Person at such
time.
Except as otherwise provided for herein, the amount of an Investment shall
be
its fair market value at the time the Investment is made and without giving
effect to subsequent changes in value.
“Lender
Presentation”
means
the Lender Presentation dated June 9, 2006 relating to the Parent, the Borrower
and the Transactions.
“Lenders”
means
the Persons listed on Schedule 2.01 of this Agreement, Schedule 1 of the
Amendment Agreement and any other Person that shall have become a party hereto
or thereto pursuant to an Assignment and Assumption, other than any such
Person
that ceases to be a party hereto or thereto pursuant to an Assignment and
Assumption.
“Leverage
Ratio”
means,
on any date, the ratio of (a) Total Net Indebtedness as of such date to
(b) Consolidated EBITDA of the Parent for the period of four consecutive
fiscal quarters of the Parent ended on such date (or, if such date is not
the
last day of a fiscal quarter, ended on the last day of the fiscal quarter
of the
Parent most recently ended prior to such date).
“LIBO
Rate”
means,
with respect to any Eurodollar Borrowing for any Interest Period, the rate
appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided
on
such page of such Service, as determined by the Administrative Agent from
time
to time for purposes of providing quotations of interest rates applicable
to
Dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time
for
any reason, then the “LIBO
Rate”
with
respect to such Eurodollar Borrowing for such Interest Period shall be the
rate
at which Dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
“Lien”
means,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset
and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.
“Loan
Documents”
means
this Agreement, the Guarantee Agreement and the Amendment
Agreement.
“Loan
Parties”
means
the Borrower and the Guarantors.
“Loans”
means
the loans made by the Lenders to the Borrower pursuant to this Agreement
whether
prior to, or after giving effect to, the Amendment Agreement.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the business, assets, operations, or
financial condition of the Parent and the Subsidiaries taken as a whole,
(b) the ability of any Loan Party to perform any of its material
obligations under the Loan Documents or (c) the validity and enforceability
of any Loan Document, or the rights and remedies of the Lenders hereunder
or
under any other Loan Document, taken as a whole.
“Material
Indebtedness”
means
Indebtedness (other than the Loans), or obligations in respect of one or
more
Swap Agreements, of any one or more of the Parent and its Subsidiaries in
an
aggregate principal amount exceeding $35,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Parent
or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Parent or such Subsidiary would be required to pay if such Swap Agreement
were
terminated at such time.
“Material
Subsidiary”
means,
as of any date, any Subsidiary (other than the Borrower, a Foreign Subsidiary
or
a Receivables Subsidiary) that either (a) accounts (together with its
subsidiaries on a consolidated basis) for more than 10% of Total Assets of
the
Parent or (b) accounts (together with its subsidiaries on a consolidated
basis)
for more than 10% of the consolidated revenues of the Parent and the
Subsidiaries for the most recently ended period of four consecutive fiscal
quarters for which financial statements are available, in each case, determined
in accordance with GAAP.
“Maturity
Date”
means
April 12, 2010.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“Multiemployer
Plan”
means
a
multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the
Parent or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
“Net
Cash Proceeds”,
with
respect to any issuance or sale of Equity Interests or Indebtedness or any
Asset
Disposition, means the cash proceeds of such issuance or sale net of (a)
attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees,
discounts or commissions and brokerage, consultant and other fees and expenses
actually incurred in connection with such issuance or sale, (b) taxes paid
or
payable as a result thereof, (c) in the case of any Asset Disposition, any
reserve for any purchase price adjustment or any indemnification payments
(fixed
and contingent) in connection with such Asset Disposition; provided
that if
any such reserve is later released, such amount shall be included in the
calculation of Net Cash Proceeds, and (d) in the case of any Asset Disposition,
the principal amount of any Indebtedness (other than Indebtedness under the
Loan
Documents) that is secured by the assets subject to such Asset Disposition
and
any related premiums, fees, expenses and other amounts due thereunder and
that
are required to be repaid in connection therewith.
“Other
Taxes”
means
any and all present or future stamp or documentary taxes or any other excise
or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise
with
respect to, this Agreement.
“Parent”
means
American Axle & Manufacturing Holdings, Inc., a Delaware
corporation.
“Participant”
has
the
meaning set forth in Section 9.04.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and
any successor entity performing similar functions.
“Permitted
Encumbrances”
means:
(a) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s construction, artisan’s
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 60 days or are
being contested in compliance with Section 5.04;
(c) pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such
obligations;
(d) deposits
to secure or in connection with the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and
other obligations of a like nature, in each case in the ordinary course of
business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;
(e) judgment
liens in respect of judgments that do not constitute an Event of Default
under
clause (k) of Article VII;
(f) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from
the
value of the affected property or materially interfere with the ordinary
conduct
of business of the Parent or any Subsidiary;
(g) Liens
arising by virtue of any statutory or common law provision relating to banker’s
liens, rights of setoff or similar rights as to deposit accounts or other
funds
maintained with creditor depository institution; and
(h) landlord’s
Liens under leases of property to which the Parent or a Subsidiary is a
party;
provided
that the
term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
“Permitted
Investment”
means
an Investment by the Parent or any Subsidiary in:
(a) the
Borrower, a Subsidiary or a Person that will, upon the making of such
Investment, become a Subsidiary; provided
that
such Person’s primary business is a Related Business;
(b) another
Person if, as a result of such Investment, such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all
its
assets to, the Parent or a Subsidiary; provided
that
such Person’s primary business is a Related Business;
(c) cash
and Cash Equivalents;
(d) receivables
owing to the Parent or any Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided
that
such trade terms may include such concessionary trade terms as the Parent
or any
such Subsidiary deems reasonable under the circumstances;
(e) payroll,
travel and similar advances to cover matters that are expected at the time
of
such advances ultimately to be treated as expenses for accounting purposes
and
that are made in the ordinary course of business;
(f) loans
or advances to employees made in the ordinary course of business consistent
with
past practices of the Parent or such Subsidiary;
(g) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Parent or any Subsidiary or
in
satisfaction of judgments;
(h) any
Person to the extent such Investment represents the non-cash portion of the
consideration received for (i) an Asset Disposition as permitted
pursuant to Section 6.07 or (ii) a disposition of assets not constituting
an Asset Disposition;
(i) any
Person where such Investment was acquired by the Parent or any Subsidiary
(x) in exchange for any other Investment or accounts receivable held by the
Parent or any such Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (y) as a result of a foreclosure by
the Parent or any Subsidiary with respect to any secured Investment or other
transfer of title with respect to any secured Investment in
default;
(j) any
Person to the extent such Investment consists of prepaid expenses, negotiable
instruments held for collection and lease, utility and workers’ compensation,
performance and other similar deposits made in the ordinary course of business
by the Parent or any Subsidiary;
(k) any
Person to the extent such Investment consists of a Swap Agreement otherwise
permitted by this Agreement;
(l) any
Person to the extent such Investment exists on the Existing Credit Agreement
Effective Date, and any extension, modification or renewal of any such
Investment existing on the Existing Credit Agreement Effective Date, but
only to
the extent not involving additional advances, contributions or other Investments
of cash or other assets or other increases thereof (other than as a result
of
the accrual or accretion of interest or original issue discount or the issuance
of pay-in-kind securities, in each case, pursuant to the terms of such
Investment as in effect on the Existing Credit Agreement Effective Date);
(m) any
Person to the extent the payment for such Investment consists of Equity
Interests of the Parent (excluding Disqualified Stock);
(n) Guarantees
of Indebtedness permitted under Section 6.01;
(o) Investments
of a Person existing at the time such Person becomes a Subsidiary or at the
time
such Person merges or consolidates with the Parent or any Subsidiary, in
either
case, in compliance with this Agreement; provided that such Investments were
not
made by such Person in connection with, or in contemplation of, such Person
becoming a Subsidiary or such merger or consolidation; and
(p) Persons
to the extent such Investments, when taken together with all other Investments
made pursuant to this clause (p) and outstanding on the date such
Investment is made, do not exceed $100,000,000.
“Permitted
Receivables Financing”
means
transactions pursuant to which the Parent or one or more of the Subsidiaries
(or
a combination thereof) realizes cash proceeds in respect of Receivables and
Related Security by selling or otherwise transferring such Receivables and
Related Security (on a non-recourse basis with respect to the Parent and
the
Subsidiaries, other than Standard Securitization Undertakings) to one or
more
Receivables Subsidiaries, and such Receivables Subsidiary or Receivables
Subsidiaries realize cash proceeds in respect of such Receivables and Related
Security; provided
that the
Parent or the Borrower shall deliver to the Administrative Agent copies of
all
documentation entered into in connection with any such transaction.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Parent or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Prime
Rate”
means
the rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A. as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
“Pro
Rata Share”
means,
with respect to any Lender’s share of any payment of principal in respect of the
Loans, such Lender’s share thereof determined based upon the share that the
aggregate principal amount of outstanding Loans of such Lender represents
of the
aggregate principal amount of all outstanding Loans.
“Receivable”
means
an Account owing to the Parent or any Subsidiary (before its transfer to
a
Receivables Subsidiary), whether now existing or hereafter arising, together
with all cash collections and other cash proceeds in respect of such Account,
including all yield, finance charges or other related amounts accruing in
respect thereof and all cash proceeds of Related Security with respect to
such
Receivable.
“Receivables
Financing Debt”
means,
as of any date with respect to any Receivables Subsidiary and any Permitted
Receivables Financing, the amount of the outstanding uncollected Receivables
subject to such Permitted Receivables Financing that would be required for
such
Receivables Subsidiary to discharge all principal obligations to financing
parties (and would not be returned, directly or indirectly, to the Parent
or the
Borrower) if all such Receivables were to be collected at such date and such
Permitted Receivables Financing were to be terminated at such date.
“Receivables
Subsidiary”
means
a
wholly owned Subsidiary that does not engage in any activities other than
participating in one or more Permitted Receivables Financings and activities
incidental thereto; provided
that
(a) such Subsidiary does not have any Indebtedness other than Indebtedness
incurred pursuant to a Permitted Receivables Financing owed to financing
parties
(including the Parent or the applicable seller of Receivables) supported
by
Receivables and Related Security and (b) neither the Parent nor any
Subsidiary Guarantees any Indebtedness or other obligation of such Subsidiary,
other than Standard Securitization Undertakings.
“Refinance”
means,
in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, purchase, redeem, defease or retire, or to issue other Indebtedness
in
exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing”
shall have correlative meanings.
“Refinancing
Indebtedness”
means
Indebtedness that Refinances any Indebtedness of the Parent or any Subsidiary
existing on the Existing Credit Agreement Effective Date or incurred in
compliance with this Agreement, including Indebtedness that Refinances
Refinancing Indebtedness; provided
that:
(a) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced;
(b) such
Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the Average Life
of
the Indebtedness being Refinanced;
(c) such
Refinancing Indebtedness has an aggregate principal amount (or if incurred
with
original issue discount, an aggregate issue price) that is equal to or less
than
the aggregate principal amount (or if incurred with original issue discount,
the
aggregate accreted value) then outstanding (plus accrued interest, fees and
expenses, including any premium and defeasance costs) under the Indebtedness
being Refinanced; and
(d) if
the Indebtedness being Refinanced is subordinated in right of payment to
the
Loans, such Refinancing Indebtedness is subordinated in right of payment
to the
Loans at least to the same extent as the Indebtedness being
Refinanced;
provided further
that
Refinancing Indebtedness shall not include (i) Indebtedness of a Subsidiary
that
is not a Loan Party that Refinances Indebtedness of any Loan Party, or
(ii) Indebtedness of a Loan Party that Refinances Indebtedness of a
Subsidiary that is not a Loan Party.
“Register”
has
the
meaning set forth in Section 9.04.
“Related
Business”
means
any business in which the Parent or any of the Subsidiaries was engaged on
the
Existing Credit Agreement Effective Date and any business related, ancillary
or
complimentary to such business.
“Related
Parties”
means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Related
Security”
means,
with respect to any Receivables subject to a Permitted Receivables Financing,
all assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving Receivables, including all collateral securing such
Receivables, all contracts and all Guarantee or other obligations in respect
of
such Receivables, and all proceeds of such Receivables.
“Required
Lenders”
means,
at any time, Lenders having outstanding Loans representing more than 50% of
the aggregate principal amount of the outstanding Loans at such
time.
“Restricted
Payment”
with
respect to any Person means:
(a) the
declaration or payment of any dividends or any other distributions of any
sort
in respect of its Equity Interests (including any payment in connection with
any
merger or consolidation involving such Person) or similar payment to the
direct
or indirect holders of its Equity Interests (other than (i) dividends or
distributions payable solely in its Equity Interests (other than Disqualified
Stock), (ii) dividends or distributions payable solely to the Parent or a
Subsidiary and (iii) pro rata
dividends or other distributions made by a Subsidiary that is not a wholly
owned
Subsidiary to minority stockholders (or owners of an equivalent interest
in the
case of a Subsidiary that is an entity other than a corporation));
(b) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of any Equity Interests of the Parent held by any Person (other
than
by a Subsidiary) or of any Equity Interests of a Subsidiary held by any
Affiliate of the Parent (other than by a Subsidiary), including in connection
with any merger or consolidation and including the exercise of any option
to
exchange any Equity Interests (other than into Equity Interests of the Parent
that is not Disqualified Stock);
(c) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking
fund payment of any Subordinated Obligations of the Borrower or any Guarantor
(other than (i) from the Parent or a Subsidiary or (ii) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement of
Subordinated Obligations purchased in anticipation of satisfying a sinking
fund
obligation, principal installment or final maturity, in each case due within
one
year of the date of such purchase, repurchase, redemption, defeasance or
other
acquisition or retirement); or
(d) the
making of any Investment (other than a Permitted Investment) in any
Person.
“Revolving
Credit Agreement”
means
the Credit Agreement, dated as of January 9, 2004, as amended, among the
Borrower, the Parent, the several lenders party thereto, and JPMorgan Chase
Bank, N.A., as Administrative Agent, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith and in each case, as amended, restated, supplemented, modified,
renewed, refunded, replaced (whether at maturity or otherwise) or refinanced
from time to time in one or more agreements or indentures (in each case with
the
same or new lenders or institutional investors), including any agreement
adding
or changing the borrower or any guarantors or extending the maturity thereof
or
otherwise restructuring all or a portion of the Indebtedness thereunder or
increasing the amount loaned or issued thereunder or altering the maturity
thereof (provided that such increase in borrowings is permitted under Section
6.01).
“S&P”
means
Standard & Poor’s.
“Sold
Entity or Business”
has
the
meaning assigned to such term in the definition of “Consolidated
EBITDA”.
“Standard
Securitization Undertakings”
means
representations, warranties, covenants and indemnities made by the Parent
or any
of the Subsidiaries in connection with a Permitted Receivables Financing
that
are customary for accounts receivables securitization financings; provided
that
Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.
“Stated
Maturity”
means,
with respect to any Indebtedness, the date specified in such Indebtedness
as the
fixed date on which the final payment of principal of such Indebtedness is
due
and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such Indebtedness
at the
option of the holder thereof upon the happening of any contingency unless
such
contingency has occurred).
“Statutory
Reserve Rate”
means
a
fraction (expressed as a decimal), the numerator of which is the number one
and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred
to
as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“Subordinated
Obligation”
means,
with respect to a Person, any Indebtedness of such Person (whether outstanding
on the Existing Credit Agreement Effective Date or thereafter incurred) which
is
subordinate or junior in right of payment to the Loans or a Guarantee of
such
Person, pursuant to a written agreement to that effect.
“subsidiary”
means,
with respect to any Person (the “parent”)
at any
date, any corporation, limited liability company, partnership, association
or
other entity the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well
as any
other corporation, limited liability company, partnership, association or
other
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power
or, in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of
the
parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary”
means
any subsidiary of the Parent, including the Borrower.
“Swap
Agreement”
means
any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments
or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination
of these transactions; provided
that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants
of
the Parent or the Subsidiaries shall be a Swap Agreement.
“Taxes”
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Total
Assets”
means,
with respect to any Person as of any date, the amount of total assets of
such
Person and its subsidiaries that would be reflected on a balance sheet of
such
Person prepared as of such date on a consolidated basis in accordance with
GAAP.
“Total
Indebtedness”
means,
as of any date, the sum (without duplication) of (a) the aggregate principal
amount of Indebtedness of the Parent and the Subsidiaries outstanding as
of such
date that consists of Capital Lease Obligations, obligations for borrowed
money
and obligations in respect of the deferred purchase price of property or
services, determined on a consolidated basis, plus
(b) the
amount, if any, by which the aggregate amount of Receivables Financing Debt
of
the Parent and the Subsidiaries outstanding as of such date exceeds
$150,000,000.
“Total
Net Indebtedness”
means,
as of any date, Total Indebtedness minus the aggregate amount of cash and
cash
equivalents that would be set forth on a balance sheet of the Parent and
the
Subsidiaries as of such date prepared on a consolidated basis in accordance
with
GAAP.
“Transactions”
means
the execution, delivery and performance by the Loan Parties of the Loan
Documents, the borrowing of Loans and the use of the proceeds
thereof.
“Type”,
when
used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to (a) the Adjusted LIBO Rate or (b) the Alternate Base
Rate.
“Withdrawal
Liability”
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification
of Loans and Borrowings.
For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g.,
an
“Existing Term Loan”) or by Type (e.g.
an “ABR
Loan”) or by Class and Type (e.g.
an “ABR
Existing Term Loan”). Borrowings also may be classified and referred to by Class
(e.g.,
an
“Existing Term Loan Borrowing”) or by Type (e.g.
an “ABR
Borrowing”) or by Class and Type (e.g.,
an “ABR
Existing Term Loan Borrowing”).
SECTION
1.03. Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION
1.04. Accounting
Terms; GAAP.
Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time
to
time; provided
that, if
the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on
the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision
hereof
for such purpose), regardless of whether any such notice is given before
or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
ARTICLE
II
The
Loans
SECTION
2.01. Commitments. (a)
Existing
Term Loans in an initial aggregate amount of $200,000,000 were made to the
Borrower on the Existing Credit Agreement Effective Date, and no Lender shall
have any obligation to make any additional Existing Term Loans. The outstanding
principal amount of each Lender’s Existing Term Loan as of the Amendment
Effective Date is set forth on Schedule 2.01. Incremental Term Loans in an
initial aggregate amount of $50,000,000 were made to the Borrower on the
Amendment Effective Date, and subject to the terms and conditions set forth
herein and in the Amendment Agreement, each Lender having an Incremental
Term
Loan Commitment made Incremental Term Loans to the Borrower on the Amendment
Effective Date in a principal amount equal to its Incremental Term Loan
Commitment. No Lender shall have any obligation to make any additional
Incremental Term Loans. The outstanding principal amount of each Lender’s
Existing Term Loans as of the Amendment Effective Date is set forth on Schedule
2.01. Amounts repaid in respect of Loans may not be reborrowed.
(b)
All
Existing Term Loans outstanding under the Existing Credit Agreement on the
Amendment Effective Date shall remain outstanding hereunder on the terms
set
forth herein.
SECTION
2.02. Loans
and Borrowings. (a)
Each
Loan shall be made as part of a Borrowing consisting of Loans of the same
Class
and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any
Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided
that the
Commitments of the Lenders are several and no Lender shall be responsible
for
any other Lender’s failure to make Loans as required hereunder.
(b)
Subject
to Section 2.10, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each
Lender
at its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided
that any
exercise of such option shall not affect the obligation of the Borrower to
repay
such Loan in accordance with the terms of this Agreement and such Lender
shall
not be entitled to any amounts payable under Section 2.11 or 2.13 to the
extent
such amounts would not have been payable had such Lender not exercised such
option.
(c)
At
the
commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Borrowings of more than one Type
may be
outstanding at the same time; provided
that
there shall not at any time be more than a total of 10 Eurodollar Borrowings
outstanding.
(d)
Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled
to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity
Date.
SECTION
2.03. Funding
of Borrowings. (a)
Each
Lender shall make the Incremental Term Loan to be made by it hereunder on
the
Amendment Effective Date by wire transfer of immediately available funds
by
12:00 noon, New York City time, to the account of the Administrative Agent
most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
designated by it by notice to the Administrative Agent.
(b)
Unless
the Administrative Agent shall have received notice from a Lender prior to
the
Amendment Effective Date that such Lender will not make available to the
Administrative Agent such Lender’s share of the Borrowing to be made on the
Amendment Effective Date, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a)
of
this Section and may, in reliance upon such assumption, make available to
the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case
of the Borrower, the interest rate applicable to the Loans included in the
applicable Borrowing. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
SECTION
2.04. Interest
Elections. (a)
Each
Borrowing initially shall be of the Type specified in the Borrower’s notice of
borrowing delivered pursuant to Article IV and shall have an initial
Interest Period as specified in such notice. Thereafter, the Borrower may
elect
to convert such Borrowing to a different Type or to continue such Borrowing
and,
in the case of a Eurodollar Borrowing, may elect Interest Periods therefor,
all
as provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be
considered a separate Borrowing.
(b)
To
make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone (a) in the case of an
election that will result in a Eurodollar Borrowing, not later than 12:00
noon,
New York City time, three Business Days before the effective date of such
election, and (b) in the case of an election that will result in an ABR
Borrowing, not later than 12:00 noon, New York City time, on the effective
date
of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c)
Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be
specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) the
Type
of the resulting Borrowing; and
(iv) if
the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period
contemplated by the definition of the term “Interest Period”.
If
any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d)
Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.
(e)
If
the
Borrower fails to deliver a timely Interest Election Request with respect
to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the
Required Lenders, so notifies the Borrower, then, so long as an Event of
Default
is continuing, unless repaid, each Eurodollar Borrowing shall be converted
to an
ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION
2.05. Termination
of Commitments.
The
Incremental Term Loan Commitments shall terminate upon the borrowing of the
Incremental Term Loans on the Amendment Effective Date. The Existing Term
Loan
Commitments have terminated.
SECTION
2.06. Repayment of
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 each Loan
on the
Maturity Date.
(b)
Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c)
The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.
(d)
The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Lender or the Administrative Agent to maintain such accounts
or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e)
Any
Lender may request that Loans made by it be evidenced by a promissory note.
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by
such
Lender, to such Lender and its registered assigns) and in a form approved
by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory
note
and interest thereon shall at all times (including after assignment pursuant
to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note
is
a registered note, to such payee and its registered assigns).
SECTION
2.07. Prepayment
of Loans.
(a)
Voluntary
Prepayments of Loans. (i) The
Borrower shall have the right at any time and from time to time to prepay
any
Borrowing in whole or in part, subject to prior notice in accordance with
subparagraph (a)(ii) of this Section. Any such prepayment shall be subject
to Section 2.12 hereof and, in the case of any such prepayment made prior
to the
second anniversary of the Existing Credit Agreement Effective Date, shall
be
accompanied by a prepayment fee equal to (A) in the event of a voluntary
prepayment made prior to the first anniversary of the Existing Credit Agreement
Effective Date, 2.00% of the aggregate principal amount of such prepayment,
and
(B) in the event of a voluntary prepayment made on or after the first
anniversary of the Existing Credit Agreement Effective Date, but prior to
the
second anniversary of the Existing Credit Agreement Effective Date, 1.00%
of the
aggregate principal amount of the such prepayment. For the avoidance of doubt,
any voluntary prepayment made by the Borrower pursuant to this paragraph
(a)
shall be applied ratably between Existing Term Loan Borrowings and Incremental
Term Loan Borrowings.
(ii) The
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (A) in the case of prepayment of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time,
three Business Days before the date of prepayment, or (B) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York
City time, on the date of prepayment. Each such notice shall be irrevocable
and
shall specify the prepayment date and the principal amount of each Borrowing
or
portion thereof to be prepaid. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Lenders of the contents thereof.
Each
partial prepayment of any Eurodollar Borrowing shall be in an amount that
would
be permitted in the case of a Eurodollar Borrowing as provided in
Section 2.02. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by
accrued interest to the extent required by Section 2.09.
(b)
Mandatory
Offer to Prepay Loans Upon Asset Disposition. (i) In
the event and on the occasion that any Net Cash Proceeds are received by
or on
behalf of the Borrower or any Subsidiary in respect of an Asset Disposition,
the
Borrower shall, in accordance with subparagraph (b)(ii) hereof, offer to
prepay Loans in an aggregate amount equal to 100% of such Net Cash Proceeds.
(ii) Subject
to subparagraph (b)(iii) hereof, within three Business Days following the
date of receipt of any Net Cash Proceeds from any Asset Disposition, the
Borrower shall provide a notice to the Administrative Agent (the “Asset
Disposition Offer”),
stating:
| (A) |
that
an Asset Disposition has occurred and that each Lender has the right
to
require the Borrower to prepay such Lender’s Pro Rata Share of Loans with
the Net Cash Proceeds from such Asset Disposition, plus accrued and
unpaid
interest to the date of prepayment;
|
| (B) |
the
circumstances and relevant facts and financial information regarding
such
Asset Disposition; and
|
| (C) |
the
prepayment date (which shall be no earlier than 7 days nor later than
14 days from the date of such
notice).
|
The
Administrative Agent shall notify the Lenders of any Asset Disposition Offer,
together with the instructions determined by the Administrative Agent,
consistent with this Section 2.07(b), that a Lender must follow in order
to
receive its Pro Rata Share of the Net Cash Proceeds from the Asset Disposition
or to decline application of such prepayment to any of such Lender’s
Loans.
(iii) The
Borrower shall not be required to make an Asset Disposition Offer upon an
Asset
Disposition if the Borrower or such Subsidiary applies the Net Cash Proceeds
from such Asset Disposition within one year after receipt of such Net Cash
Proceeds to acquire real property, equipment or other tangible assets to
be used
in, or to otherwise make an Investment in, the Borrower’s business or a Related
Business; provided
that, to
the extent any such Net Cash Proceeds have not been so applied by the end
of
such one-year period, then the Borrower shall be required to make an Asset
Disposition Offer in an amount equal to such Net Cash Proceeds that have
not
been so applied.
(iv) On
the
prepayment date in respect of any Asset Disposition Offer, the Borrower shall
prepay the Loans of each Lender that has elected to receive such prepayment
in
an aggregate principal amount equal to such Lender’s Pro Rata Share of such Net
Cash Proceeds. Each such prepayment of any Lender’s Loans shall be applied
ratably to the Loans of such Lender included in each Borrowing. Such prepayments
shall be accompanied by accrued interest to the extent required by
Section 2.09.
(v) Any
Lender may elect not to have a prepayment resulting from an Asset Disposition
Offer applied to such Lender’s Loans. Any such declination shall not constitute
a declination of any other Asset Disposition Offer.
(c)
Mandatory
Offer to Prepay Loans Upon Change in Control. (i) Upon
the occurrence of a Change in Control, the Borrower shall, in accordance
with
subparagraph (c)(ii) hereof, offer to prepay all of the unpaid principal
amount
of the Loans, plus accrued and unpaid interest to the date of
prepayment.
(ii) Any
such
prepayment shall be subject to Section 2.12 hereof and shall be accompanied
by a
prepayment fee equal to 1.00% of the aggregate principal amount of such
prepayment.
(iii) Within
three Business Days following any Change in Control, the Borrower shall provide
a notice to the Administrative Agent (the “Change
in Control Offer”),
stating:
| (A) |
that
a Change in Control has occurred and that each Lender has the right
to
require the Borrower to prepay all of the unpaid principal amount
of such
Lender’s Loans, plus accrued and unpaid interest to the date of
prepayment;
|
| (B) |
the
circumstances and relevant facts and financial information regarding
such
Change in Control; and
|
| (C) |
the
prepayment date (which shall be no earlier than 7 days nor later than
14 days from the date of such
notice).
|
The
Administrative Agent shall notify the Lenders of any Change in Control Offer,
together with the instructions determined by the Administrative Agent,
consistent with this Section 2.07(c), that a Lender must follow in order
to have
its Loans repaid or to decline application of such prepayment to any of such
Lender’s Loans.
(iv) The
Borrower shall not be required to make a Change in Control Offer upon a Change
in Control if a third party makes the Change in Control Offer in the manner,
at
the times and otherwise in compliance with the requirements set forth in
this
Section 2.07(c) applicable to a Change in Control Offer made by the Borrower
and
has repaid all Lenders that validly accepted such Change in Control
Offer.
(v) On
the
prepayment date in respect of any Change in Control Offer, the Borrower shall
prepay all of the unpaid principal amount of the Loans of each Lender that
has
elected to receive such prepayment, plus accrued and unpaid interest to the
date
of prepayment and the prepayment fee specified above.
(vi) Any
Lender may elect not to have a prepayment resulting from a Change in Control
Offer applied to such Lender’s Loans. Any such declination shall not constitute
a declination of any other Change in Control Offer.
SECTION
2.08. Administrative
Fees.
The
Borrower agrees to pay to the Administrative Agent, for its own account and
in
immediately available funds, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative Agent.
Fees
paid shall not be refundable under any circumstances.
SECTION
2.09. Interest. (a)
The
Loans comprising each ABR Borrowing shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b)
The
Loans
comprising each Eurodollar Borrowing shall bear interest at the Adjusted
LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(c)
Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or
other
amount payable by the Borrower hereunder is not paid when due, whether at
stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs
of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this
Section.
(d)
Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan; provided
that
(i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall
be
payable on the date of such repayment or prepayment and (iii) in the event
of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable
on the
effective date of such conversion.
(e)
All
interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Alternate Base Rate at
times
when the Alternate Base Rate is based on the Prime Rate shall be computed
on the
basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the
first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION
2.10. Alternate
Rate of Interest.
If prior
to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the
Administrative Agent reasonably determines (which reasonable determination
shall
be conclusive absent manifest error) that adequate and reasonable means do
not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period;
or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted
LIBO
Rate for such Interest Period will not adequately and fairly reflect the
cost to
such Lenders of making or maintaining their Loans included in such Borrowing
for
such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until
the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any Interest Election
Request that requests the conversion of any Borrowing to, or continuation
of any
Borrowing as, a Eurodollar Borrowing shall be ineffective and such Eurodollar
Borrowing shall be converted to or continued on the last day of the Interest
Period applicable thereto as an ABR Borrowing.
SECTION
2.11. Increased
Costs. (a)
If
any Change in Law (other than with respect to Taxes, which shall be governed
exclusively by Section 2.13) shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in the Adjusted
LIBO
Rate); or
(ii) impose
on
any Lender or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to
make any such Loan) or to reduce the amount of any sum received or receivable
by
such Lender hereunder (whether of principal, interest or otherwise) by an
amount
deemed by such Lender to be material (excluding for purposes of this
Section 2.11 any such increased costs resulting from Taxes or Other Taxes,
as to which Section 2.13 shall govern), then the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender for
such
additional costs incurred or reduction suffered.
(b)
If
any
Lender determines that any Change in Law regarding capital requirements has
or
would have the effect of reducing the rate of return on such Lender’s capital or
on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender to a level below that which
such
Lender or such Lender’s holding company could have achieved but for such Change
in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower
will
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender’s holding company for any such reduction
suffered.
(c)
A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section, together with a reasonably
detailed description of the basis therefor, and including a certification
by
such Lender that its claim for such compensation has been calculated and
made in
the same manner as under other credit agreements with other borrowers that
are
similarly situated and with respect to which the event entitling such Lender
to
compensation hereunder also entitled such Lender to compensation thereunder,
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any
such
certificate within 30 days after receipt thereof.
(d)
Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided
that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to
the date that such Lender notifies the Borrower of the Change in Law giving
rise
to such increased costs or reductions and of such Lender’s intention to claim
compensation therefor; provided further
that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended
to
include the period of retroactive effect thereof.
SECTION
2.12. Break
Funding Payments.
In the
event of (a) the payment of any principal of any Eurodollar Loan other than
on the last day of an Interest Period applicable thereto (including as a
result
of an Event of Default), (b) the conversion of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Eurodollar Loan on the
date
specified in any notice delivered pursuant hereto, or (d) the assignment of
any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.15,
then, in any such event, the Borrower shall compensate each Lender for the
loss,
cost and expense attributable to such event. In the case of a Eurodollar
Loan,
such loss, cost or expense to any Lender shall be deemed to include an amount
reasonably determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest (as reasonably
determined by such Lender) which would accrue on such principal amount for
such
period at the interest rate which such Lender would bid were it to bid, at
the
commencement of such period, for deposits in the applicable currency and
of a
comparable amount and period from other banks in the eurocurrency market.
A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section, together with a reasonably
detailed calculation of such amount, shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 30 days after
receipt thereof.
SECTION
2.13. Taxes. (a)
Any
and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified
Taxes
or Other Taxes; provided
that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions for Indemnified Taxes
and
Other Taxes (including any such deductions applicable to additional sums
payable
under this Section 2.13(a)) the Administrative Agent or Lender (as the case
may be) receives an amount equal to the sum it would have received had no
such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b)
In
addition, and without duplication of paragraph (a) hereof, the Borrower shall
pay any Other Taxes to the relevant Governmental Authority in accordance
with
applicable law.
(c)
The
Borrower shall indemnify the Administrative Agent and each Lender, within
30 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes
or
Other Taxes imposed or asserted on or attributable to amounts payable under
this
Section 2.13) and any penalties, interest and reasonable expenses (other
than Excluded Taxes) arising therefrom or with respect thereto; provided,
that
the Administrative Agent or such Lender, as the case may be, provides the
Borrower with a written record therefor setting forth in reasonable detail
the
basis and calculation of such amounts.
(d)
As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued
by
such Governmental Authority evidencing such payment, to the extent such a
receipt is issued therefor, or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e)
Any
Foreign Lender that is entitled to an exemption from or reduction of any
Tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender
under this Agreement (and from time to time thereafter as required upon the
expiration, obsolescence or invalidity upon the request of the Borrower or
the
Administrative Agent, but only if such Foreign Lender is legally entitled
to do
so), whichever of the following is applicable:
(i) duly
completed copies of the Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
of America is a party;
(ii) duly
completed copies of Internal Revenue Service Form W-8ECI;
(iii) in
the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the code, (B) a “10 percent shareholder” of
the Parent within the meaning of section 881(c)(3)(B) of the Code, or
(C) a “controlled foreign corporation” described in
section 8981(c)(3)(C) of the Code, and (y) duly completed copies of
Internal Revenue Service Form W-8BEN;
(iv) any
Lender that is not a Foreign Lender shall deliver to the Borrower Internal
Revenue Service Form W-9 or any subsequent versions thereof or successors
thereto, properly completed and duly executed. If any Lender fails to deliver
Form W-9 or any subsequent versions thereof or successors thereto as
required herein, then the Borrower may withhold from any payment to such
party
an amount equivalent to the applicable backup withholding Tax imposed by
the
Code, without reduction, or
(v) any
other
form prescribed by applicable law as a basis for claiming exemption from
or a
reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable
law to
permit the Borrower to determine the withholding or deduction required to
be
made.
(f)
If
the
Administrative Agent or a Lender determines, in its sole discretion, that
it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.13, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made,
or
additional amounts paid, by the Borrower under this Section 2.13 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided,
that
the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other reasonable charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or
any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
(g)
Any
Lender claiming any indemnity payment or additional amounts payable pursuant
to
this Section 2.13 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document reasonably
requested by the Borrower following the reasonable written request by the
Borrower if the making of such a filing would avoid the need for or reduce
the
amount of any such indemnity payment or additional amounts that may thereafter
accrue and would not, in the sole determination of such Lender, require the
disclosure of information that the Lender reasonably considers confidential
or
be otherwise disadvantageous to such Lender.
SECTION
2.14. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
The
Borrower shall make each payment required to be made by it hereunder (whether
of
principal, interest or fees, or of amounts payable under Section 2.11, 2.12
or 2.13, or otherwise) prior to 2:00 p.m., New York City time, on the date
when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, except that payments pursuant to Sections 2.11,
2.12, 2.13 and 9.03 shall be made directly to the Persons entitled thereto.
The
Administrative Agent shall distribute any such payments received by it for
the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not
a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b)
If
at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto
in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.
(c)
If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on its Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount
of its Loans and accrued interest thereon than the proportion received by
any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Loans of other Lenders to
the
extent necessary so that the benefit of all such payments shall be shared
by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided
that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance
with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring
a
participation pursuant to the foregoing arrangements may exercise against
the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the
amount
of such participation.
(d)
Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the
account
of any of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment
on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to such Lenders the amount due. In such event, if the Borrower
has
not in fact made such payment, then each of the Lenders severally agrees
to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender with interest thereon, for each day from and including the
date
such amount is distributed to it to but excluding the date of payment to
the
Administrative Agent, at the greater of the Federal Funds Effective Rate
and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e)
If
any
Lender shall fail to make any payment required to be made by it pursuant
to
Section 2.03(b) or 2.14(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION
2.15. Mitigation
Obligations; Replacement of Lenders. (a)
If
any Lender requests compensation under Section 2.11, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.13, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign
its rights and obligations hereunder to another of its offices, branches
or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.11 or
2.13, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not, in the reasonable
judgment of such Lender, otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any
Lender in connection with any such designation or assignment.
(b)
If
any
Lender requests compensation under Section 2.11, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.13, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may
be another Lender, if a Lender accepts such assignment); provided
that (i)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest) or the Borrower (in the case of all other amounts)
and
(ii) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant to
Section 2.13, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require
such
assignment and delegation cease to apply.
ARTICLE
III
Representations
and Warranties
Each
of
the Parent and the Borrower represents and warrants to the Lenders
that:
SECTION
3.01. Organization;
Powers.
Each of
the Parent and the Subsidiaries is duly organized, validly existing and in
good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would
not
reasonably be expected to result in a Material Adverse Effect, is qualified
to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION
3.02. Authorization;
Enforceability.
The
Transactions to be entered into by each Loan Party are within such Loan Party’s
corporate powers and have been duly authorized by all necessary corporate
and,
if required, stockholder action. This Agreement has been duly executed and
delivered by the Parent and the Borrower and constitutes, and each other
Loan
Document to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding obligation
of
the Parent, the Borrower and such other Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION
3.03. Governmental
Approvals; No Conflicts.
The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such
as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Parent or any Subsidiary or
its
assets the violation or breach of which would result in or would reasonably
be
expected to result in a Material Adverse Effect, or give rise to a right
thereunder to require any payment to be made by the Parent or any Subsidiary,
and (d) will not result in the creation or imposition of any Lien on any
asset of the Parent or any Subsidiary.
SECTION
3.04. Financial
Condition; No Material Adverse Change.
(a)
The
Parent has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and
for
the fiscal year ended December 31, 2005, reported on by Deloitte & Touche
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended June 30, 2006, certified by its
chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows
of the
Parent and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii)
above.
(b)
Since
December 31, 2005, there has been no material adverse change in the
business, assets, operations or financial condition of the Parent and the
Subsidiaries, taken as a whole.
SECTION
3.05. Litigation
and Environmental Matters. (a)
There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Parent or the Borrower,
threatened against or affecting the Parent or any Subsidiary (i) as to
which there is a reasonable possibility of an adverse determination and that,
if
adversely determined, would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the
Transactions.
(b)
Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect, neither the Parent nor any Subsidiary (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability
or
(iv) knows of any basis for any Environmental Liability.
SECTION
3.06. Compliance
with Laws and Agreements.
Each of
the Parent and the Subsidiaries is in compliance with all laws, regulations
and
orders of any Governmental Authority applicable to it or its property and
all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, would
not
reasonably be expected to result in a Material Adverse Effect. No Default
has
occurred and is continuing.
SECTION
3.07. Investment
Company Status.
Neither
the Parent nor any of the Subsidiaries is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940.
SECTION
3.08. Taxes.
Each of
the Parent and the Subsidiaries has timely filed or caused to be filed all
Federal and other material Tax returns and reports required to have been
filed
and has paid or caused to be paid all Taxes required to have been paid by
it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Parent or such Subsidiary, as applicable, has
set
aside on its books adequate reserves or (b) to the extent that the failure
to do so would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.09. ERISA.
No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected
to
occur, would reasonably be expected to result in a Material Adverse Effect.
SECTION
3.10. Disclosure.
Neither
the Lender Presentation nor any of the other reports, financial statements
or
other information furnished by or on behalf of the Parent or the Borrower
to the
Administrative Agent or any Lender in connection with the negotiation of
the
Loan Documents or delivered thereunder, taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided
that,
with respect to projected financial information or any information concerning
future proposed and intended activities of the Parent and the Subsidiaries,
the
Parent and the Borrower represent only that such information was prepared
in
good faith based upon assumptions believed to be reasonable at the time (it
being understood that such projections and information are forward looking
statements which by their nature are subject to significant uncertainties
and
contingencies, many of which are beyond the Parent’s and the Borrower’s control,
and that actual results may differ, perhaps materially, from those expressed
or
implied in such forward looking statements, and no assurance can be given
that
the projections will be realized).
SECTION
3.11. Subsidiaries.
Schedule
3.11 sets forth the name and jurisdiction of organization of, and the direct
or
indirect ownership interest of the Parent in, each Subsidiary, and identifies
each Subsidiary that is a Material Subsidiary or is otherwise required to
become
a Guarantor, in each case, as of the Amendment Effective Date.
ARTICLE
IV
Conditions
[Intentionally
Omitted]
ARTICLE
V
Affirmative
Covenants
Until
the
Commitments have expired or terminated and the principal of and interest
on each
Loan and all fees payable hereunder shall have been paid in full, the Parent
and
the Borrower covenant and agree with the Lenders that:
SECTION
5.01. Financial
Statements and Other Information.
The
Parent or the Borrower will furnish to the Administrative Agent (and, when
furnished, the Administrative Agent will promptly furnish to the
Lenders):
(a) within
90 days after the end of each fiscal year of the Parent, its audited
consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in
each
case in comparative form the figures for the previous fiscal year, all reported
on by independent public accountants of recognized national standing (without
a
“going concern” or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Parent and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied; provided
that it
is understood and agreed that the delivery of the Parent’s Form 10-K and
annual report for the applicable fiscal year shall satisfy the requirements
of
this clause (a) if such materials contain the information required by this
clause (a);
(b) within
45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent, its condensed consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end
of)
the previous fiscal year, all certified by one of its Financial Officers
as
presenting fairly in all material respects the financial condition and results
of operations of the Parent and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes; provided
that it
is understood and agreed that the delivery of the Parent’s Form 10-Q for
the applicable fiscal quarter shall satisfy the requirements of this clause
(b)
if such materials contain the information required by this clause
(b);
(c) concurrently
with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Parent (i) certifying as
to whether a Default has occurred and, if a Default has occurred, specifying
the
details thereof and any action taken or proposed to be taken with respect
thereto, and (ii) stating whether any change in GAAP or in the application
thereof affecting the financial statements accompanying such certificate
in any
material respect has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on such financial statements;
(d) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Parent or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or
with
any national securities exchange, or distributed by the Parent to its
shareholders generally, as the case may be; and
(e) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Parent or any Subsidiary,
or
compliance with the terms of the Loan Documents, as the Administrative Agent
or
any Lender through the Administrative Agent may reasonably request.
Any
financial statement, report, proxy statement or other material required to
be
delivered pursuant to clause (a), (b) or (d) of this Section shall be deemed
to
have been furnished to the Administrative Agent and each Lender on the date
that
the Parent notifies the Administrative Agent that such financial statement,
report, proxy statement or other material is posted on the Securities and
Exchange Commission’s website at xxx.xxx.xxx
or on
the Parent’s website at xxx.xxx.xxx;
provided,
that
the Administrative Agent will promptly inform the Lenders of any such
notification by the Parent; provided,
further,
that
the Parent will furnish paper copies of such financial statement, report,
proxy
statement or material to the Administrative Agent or any Lender that requests,
by notice to the Parent, that the Parent do so, until the Parent receives
notice
from the Administrative Agent or such Lender, as applicable, to cease delivering
such paper copies.
SECTION
5.02. Notices
of Material Events.
The
Parent or the Borrower will furnish to the Administrative Agent (and when
furnished, the Administrative Agent will promptly furnish to the Lenders)
written notice of the following, promptly after any executive officer or
Financial Officer of the Parent or the Borrower obtains actual knowledge
thereof:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Parent or any
Subsidiary that involves a reasonable possibility of an adverse determination
and that, if adversely determined, would reasonably be expected to result
in a
Material Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would result in or would reasonably be expected
to
result in a Material Adverse Effect; and
(d) any
other
development that would result in or would reasonably be expected to result
in a
Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of the Parent or the Borrower
setting forth the details of the event or development requiring such notice
and
any action taken or proposed to be taken with respect thereto.
SECTION
5.03. Existence;
Conduct of Business.
The
Parent and the Borrower will, and will cause each of the other Subsidiaries
to,
do or cause to be done all things necessary to preserve, renew and keep in
full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business; provided
that
(i) the foregoing shall not prohibit any merger, consolidation, liquidation
or dissolution permitted under Section 6.03 and (ii) neither the
Parent nor any of its Subsidiaries shall be required to preserve any rights,
licenses, permits or franchises, if the Parent or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct
of
its business and if the loss thereof would not have and would not reasonably
be
expected to have a Material Adverse Affect.
SECTION
5.04. Payment
of Obligations.
The
Parent and the Borrower will, and will cause each of the other Subsidiaries
to,
pay its obligations, including Tax liabilities (but excluding Indebtedness),
that, if not paid, would reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (b) the Parent, the Borrower or such other
Subsidiary has set aside on its books adequate reserves with respect thereto
in
accordance with GAAP.
SECTION
5.05. Maintenance
of Properties; Insurance.
The
Parent and the Borrower will, and will cause each of the other Subsidiaries
to,
(a) keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, and
(b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are reasonable and
prudent.
SECTION
5.06. Books
and Records; Inspection Rights.
The
Parent and the Borrower will, and will cause each of the other Subsidiaries
to,
keep proper financial books of record and account in which full, true and
correct entries are made of all financial dealings and transactions in relation
to its business and activities in order to produce its financial statements
in
accordance with GAAP. The Parent and the Borrower will, and will cause each
of
the other Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice and at the
applicable Lender’s expense, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times during normal business hours and as often as reasonably
requested (subject to reasonable requirements of confidentiality, including
requirements imposed by law or contract).
SECTION
5.07. Compliance
with Laws.
The
Parent and the Borrower will, and will cause each of the other Subsidiaries
to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do
so,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect.
SECTION
5.08. Use
of
Proceeds.
The
proceeds of the Loans will be used for general corporate purposes, including
to
refinance amounts payable by the Parent upon exercise of any put or conversion
rights in respect of the Convertible Notes. No part of the proceeds of any
Loan
will be used, whether directly or indirectly, for any purpose that entails
a
violation of any of the Regulations of the Board, including Regulations
T, U and X.
SECTION
5.09. Additional
Guarantors.
If any
Material Subsidiary is formed or otherwise acquired after the date hereof
or any
Subsidiary that is not a Material Subsidiary subsequently becomes a Material
Subsidiary or Guarantees the obligations under the Revolving Credit Agreement
or
any refinancing or replacement thereof, then, in each case, within 10 Business
Days thereafter the Parent or the Borrower shall notify the Administrative
Agent
thereof and cause such Subsidiary to execute a supplement to the Guarantee
Agreement (in the form provided as an annex thereto or otherwise in form
and
substance reasonably satisfactory to the Administrative Agent) in order to
become a Guarantor.
ARTICLE
VI
Negative
Covenants
Until
the
Commitments have expired or terminated and the principal of and interest
on each
Loan and all fees payable hereunder have been paid in full, the Parent and
the
Borrower covenant and agree with the Lenders that:
SECTION
6.01. Indebtedness. (a)
The
Parent and Borrower will not, and will not permit any Subsidiary to, Incur,
directly or indirectly, any Indebtedness; provided,
that
the Parent, the Borrower or any such Subsidiary will be entitled to Incur
Indebtedness if, on the date of such Incurrence and after giving effect thereto,
the Leverage Ratio does not exceed 3.50 to 1.00.
(b)
Notwithstanding
the foregoing paragraph (a), the Parent and the Subsidiaries will be entitled
to
Incur any or all of the following Indebtedness:
(i) Indebtedness
incurred by the Borrower pursuant to this Agreement;
(ii) Indebtedness
incurred by the Borrower pursuant to the Revolving Credit Agreement or any
refinancing or replacement thereof; provided
that,
the aggregate principal amount of all Indebtedness incurred under this clause
(ii) and then outstanding does not exceed $600,000,000;
(iii) Indebtedness
owed to and held by the Parent or a Subsidiary; provided
that,
(A) any subsequent issuance or transfer of Equity Interests that results in
any such Subsidiary ceasing to be a Subsidiary or any subsequent transfer
of
such Indebtedness (other than to the Parent, the Borrower or a Subsidiary)
shall
be deemed, in each case, to constitute the Incurrence of such Indebtedness
by
the obligor thereon and (B) if the Borrower or a Guarantor is the obligor
on any
such Indebtedness owed to a Subsidiary that is not a Guarantor, such
Indebtedness is expressly subordinated to the prior payment in full in cash
of
all obligations with respect to the Loans;
(iv) the
Existing Senior Debt;
(v) Indebtedness
outstanding on the Existing Credit Agreement Effective Date (other than
Indebtedness described in clause (i), (ii), (iii) or (iv) of this covenant)
and
set forth on Schedule 6.01;
(vi) Refinancing
Indebtedness in respect of Indebtedness incurred pursuant to paragraph (a)
or
pursuant to clause (iv) or (v) or this clause (vi);
(vii) Indebtedness
of any Receivables Subsidiary incurred pursuant to any Permitted Receivables
Financing; provided
that the
aggregate amount of Receivables Financing Debt shall not exceed $200,000,000
at
any time outstanding;
(viii) Designated
Secured Indebtedness; provided
that the
aggregate principal amount of Designated Secured Indebtedness shall not exceed
$200,000,000 at any time outstanding;
(ix) Indebtedness
secured by a Lien permitted by clause (g) of Section 6.02, subject to
the limitations set forth therein;
(x) Indebtedness
arising from agreements of the Parent or a Subsidiary providing for
indemnification, adjustment of purchase price, earn outs, or similar
obligations, in each case, incurred or assumed in connection with the
disposition or acquisition of any business, assets or a Subsidiary in accordance
with the terms of this Agreement, other than Guarantees of Indebtedness incurred
or assumed by any Person acquiring all or any portion of such business, assets
or Subsidiary for the purpose of financing such acquisition;
(xi) Guarantees
by the Parent of Indebtedness of any Subsidiary or by any Subsidiary of
Indebtedness of the Parent or any other Subsidiary; and
(xii) Indebtedness
of any Person that becomes a Subsidiary (whether through an acquisition or
otherwise) after the date hereof; provided
that
such Indebtedness exists at the time that such Person becomes a Subsidiary
and
is not created in contemplation of or in connection with such Person becoming
a
Subsidiary.
(c)
Notwithstanding
the foregoing paragraphs (a) and (b), the Parent and the Borrower will not
permit any Subsidiary (other than the Borrower or a Guarantor) to create,
incur,
assume or permit to exist any Indebtedness, including pursuant to any Guarantee
of Indebtedness of the Parent or another Subsidiary, except:
(i) Indebtedness
owing to the Parent or another Subsidiary;
(ii) Indebtedness
of any Receivables Subsidiary incurred pursuant to any Permitted Receivables
Financing; provided,
that
the aggregate amount of Receivables Financing Debt shall not exceed $200,000,000
at any time outstanding;
(iii) Designated
Secured Indebtedness incurred by any such Subsidiary; provided,
that
the aggregate principal amount of Designated Secured Indebtedness shall not
exceed $200,000,000 at any time outstanding;
(iv) Indebtedness
of any such Subsidiary secured by a Lien permitted by clause (g) of Section
6.02, subject to the limitations set forth therein;
(v) Guarantees
by any such Subsidiary of Indebtedness of another Subsidiary (other than
the
Borrower or a Guarantor);
(vi) Indebtedness
of any Person that becomes a Subsidiary (whether through an acquisition or
otherwise) after the date hereof; provided,
that
such Indebtedness exists at the time such Person becomes a Subsidiary and
is not
created in contemplation of or in connection with such Person becoming a
Subsidiary;
(vii) Indebtedness
of any such Subsidiary existing on the Existing Credit Agreement Effective
Date
and set forth on Schedule 6.01;
(viii) Obligations
of any such Subsidiary with respect to the redemption, repayment or other
repurchase of any Disqualified Stock of such Person; and
(ix) other
unsecured Indebtedness of any such Subsidiary; provided
that, at
the time that any such Indebtedness is incurred, after giving effect to such
incurrence and any related transactions then being consummated, the aggregate
principal amount of all such Indebtedness of all such Subsidiaries then
outstanding shall not exceed 15% of Total Assets of the Parent.
(d)
For
purposes of determining compliance with this covenant:
(i) in
the
event that an item of Indebtedness (or any portion thereof) meets the criteria
of more than one of the types of Indebtedness permitted above, the Borrower,
in
its sole discretion, will classify such item of Indebtedness (or any portion
thereof) at the time of incurrence and will only be required to include the
amount and type of such Indebtedness in one of the above clauses; and
(ii) the
Borrower will be entitled to divide and classify an item of Indebtedness
in more
than one of the types of Indebtedness described above.
(e)
The
accrual of interest or dividends, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred
equity as Indebtedness due to a change in accounting principles, and the
payment
of dividends on Disqualified Stock or in the form of additional shares of
the
same class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
6.01. Notwithstanding any other provision of this Section 6.01, the maximum
amount of Indebtedness that the Borrower or any Subsidiary may incur pursuant
to
this Section 6.01 shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.
SECTION
6.02. Liens.
The
Parent and the Borrower will not, and will not permit any other Subsidiary
to,
create, incur, assume or permit to exist any Lien on any property or asset
now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted
Encumbrances;
(b) any
Lien
on any property or asset of the Parent or any Subsidiary existing on the
date
hereof (other than Liens of the type permitted under clause (d) or (f) of
this Section) and set forth in Schedule 6.02; provided
that
(i) such Lien shall not apply to any other property or asset of the Parent
or any Subsidiary and (ii) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount
thereof;
(c) any
Lien
existing on any property or asset prior to the acquisition thereof by the
Parent
or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary after the date hereof prior to the time such Person
becomes
a Subsidiary; provided
that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Parent or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such
Person becomes a Subsidiary, as the case may be, and extensions, renewals
and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) Liens
on
fixed or capital assets acquired, constructed or improved by the Parent or
any
Subsidiary; provided
that
(i) such Liens secure Indebtedness incurred to finance the acquisition,
construction or improvement of such fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior
to
the acquisition thereof, and extensions, renewals and replacements of any
such
Indebtedness that do not increase the outstanding principal amount thereof,
(ii) such Liens and the Indebtedness secured thereby are incurred prior to
or within 360 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or
capital assets, (iv) such Liens shall not apply to any other property or
assets of the Parent or any Subsidiary (other than to accessions to such
fixed
or capital assets and provided that individual financings of equipment provided
by a single lender may be cross-collateralized to other financings of equipment
provided solely by such lender) and (v) the aggregate principal amount of
Designated Secured Indebtedness shall not exceed $200,000,000 at any time
outstanding;
(e) any
other
Lien on any property or asset of any Subsidiary that is not a Loan Party;
provided,
that
(i) such Lien secures Indebtedness of such Subsidiary that is not Guaranteed
by
any Loan Party and (ii) the aggregate principal amount of Designated Secured
Indebtedness shall not exceed $200,000,000 at any time outstanding;
(f) assignments
and sales of Receivables and Related Security pursuant to a Permitted
Receivables Financing and Liens arising pursuant to a Permitted Receivables
Financing on Receivables and Related Security sold or financed in connection
with such Permitted Receivables Financing; provided,
that
the aggregate amount of Receivables Financing Debt shall not exceed $200,000,000
at any time outstanding;
(g) any
other
Lien securing Indebtedness of the Parent or any Subsidiary; provided,
that
the aggregate principal amount of all Indebtedness secured by such Liens
shall
not exceed $50,000,000 at any time outstanding; and
(h) any
Liens
securing obligations under the Revolving Credit Agreement or any refinancing
or
replacement thereof; provided
that
such Liens shall equally and ratably secure the obligations in respect of
the
Loans.
SECTION
6.03. Fundamental
Changes.
The
Parent and the Borrower will not, and will not permit any other Subsidiary
to,
merge into or consolidate with any other Person, or permit any other Person
to
merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose
of (in one transaction or in a series of transactions) all or substantially
all
of the assets of the Parent and the Subsidiaries, taken as a whole, or liquidate
or dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (a) any
Person (other than the Borrower) may merge into the Parent in a transaction
in
which the Parent is the surviving corporation, (b) any Person may merge
into any Subsidiary in a transaction in which the surviving entity is a
Subsidiary and, if a Loan Party is a party to such merger, then the surviving
entity is a Loan Party, (c) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to another Subsidiary and (d) any
Subsidiary (other than the Borrower or a Guarantor) may liquidate or dissolve
if
the Parent determines in good faith that such liquidation or dissolution
is in
the best interests of the Parent and is not materially disadvantageous to
the
Lenders; provided
that any
such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 6.04.
SECTION
6.04. Restricted
Payments. (a)
The
Parent and Borrower will not, and will not permit any of the other Subsidiaries
(other than a Receivables Subsidiary), directly or indirectly, to make a
Restricted Payment if at the time the Parent or such Subsidiary makes such
Restricted Payment:
(i) a
Default
shall have occurred and be continuing (or would result therefrom);
(ii) the
Borrower is not entitled to incur an additional $1.00 of Indebtedness pursuant
to Section 6.01(a);
(iii) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Existing Credit Agreement Effective Date would exceed the sum of
(without duplication):
| (A) |
$25,000,000
plus
50% of the Consolidated Net Income (adjusted
for any non-cash special charges or any special charges, which may
include, without limitation, cash charges related to labor agreements,
and
any non-recurring gains or losses)
accrued during the period (treated as one accounting period) from
the
beginning of the fiscal quarter during which the Existing Credit
Agreement
Effective Date occurs to the end of the most recent fiscal quarter
for
which financial statements are available (or, in case such Consolidated
Net Income (adjusted
for any non-cash special charges or any special charges, which may
include, without limitation, cash charges related to labor agreements,
and
any non-recurring gains or losses)
shall be a deficit, minus 100% of such deficit); provided
that the amount of Restricted Payments permitted under this clause
(iii)
shall not, in any event, be less than $25,000,000; plus
|
| (B) |
100%
of the aggregate Net Cash Proceeds and marketable securities received
by
the Parent from the issuance or sale of its Equity Interests (other
than
Disqualified Stock) subsequent to the Existing Credit Agreement Effective
Date (other than an issuance or sale to a Subsidiary and other than
an
issuance or sale to an employee stock ownership plan or to a trust
established by the Parent or any of its Subsidiaries for the benefit
of
their employees) and 100% of any cash capital contribution received
by the
Parent from its shareholders subsequent to the Existing Credit Agreement
Effective Date; plus
|
| (C) |
to
the extent not already included in Consolidated
Net Income, 100% of the aggregate amount in cash and marketable securities
received after the Existing
Credit Agreement Effective
Date by means of the sale or other disposition (other than to the
Parent
or a Subsidiary) of Investments (other than Permitted Investments)
made by
the Parent or any of its Subsidiaries and repurchases or redemptions
of
such Investments (other than Permitted Investments) from the Parent
or any
of its Subsidiaries and repayments of loans or advances which constitute
Investments (other than Permitted Investments) of the Parent or any
of its
Subsidiaries;
plus
|
| (D) |
the
amount by which Indebtedness of the Parent is reduced on the Parent’s
balance sheet upon the conversion or exchange subsequent to the Existing
Credit Agreement Effective Date of any Indebtedness of the Parent
convertible or exchangeable for Equity Interests (other than Disqualified
Stock) of the Parent (less the amount of any cash, or the fair value
of
any other property, distributed by the Parent upon such conversion
or
exchange); provided
that the foregoing amount shall not exceed the Net Cash Proceeds
received
by the Parent or any Subsidiary from the sale of such Indebtedness
(excluding Net Cash Proceeds from sales to a Subsidiary or to an
employee
stock ownership plan or a trust established by the Parent or any
of its
Subsidiaries for the benefit of their
employees).
|
(b)
The
preceding provisions will not prohibit:
(i) the
declaration and payment of dividends on the Parent’s Equity Interests;
provided
that the
aggregate amount of such Restricted Payments shall not exceed in any fiscal
year
$35,000,000;
(ii) Permitted
Investments, including Investments that were Permitted Investments when
made;
(iii) any
Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Equity Interests of the Parent
(other than Disqualified Stock and other than Equity Interests issued or
sold to
a Subsidiary or an employee stock ownership plan or to a trust established
by
the Parent or any of its Subsidiaries for the benefit of their employees)
or a
substantially concurrent cash capital contribution received by the Parent
from
its shareholders; provided
that
(A) such Restricted Payment shall be excluded in the calculation of the
amount of Restricted Payments and (B) the Net Cash Proceeds from such sale
or such cash capital contribution (to the extent so used for such Restricted
Payment) shall be excluded from the calculation of amounts under
clause (iii)(B) of paragraph (a) above;
(iv) any
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations of the Borrower or a Guarantor made
by
exchange for, or out of the proceeds of the substantially concurrent incurrence
of, Indebtedness of such Person which is permitted to be Incurred pursuant
to
Section 6.01; provided,
however,
that
such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount of
Restricted Payments;
(v) dividends
paid within 60 days after the date of declaration thereof if at such date
of declaration such dividend would have complied with this covenant;
provided
that at
the time of payment of such dividend, no other Default shall have occurred
and
be continuing (or result therefrom); provided further,
however,
that
such dividend shall be included in the calculation of the amount of Restricted
Payments;
(vi) so
long
as no Default has occurred and is continuing, the purchase, redemption or
other
acquisition of shares of Equity Interests of the Parent from employees, former
employees, directors or former directors of the Parent or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved
by
the board of directors under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such Equity Interests;
provided
that the
aggregate amount of such Restricted Payments (excluding amounts representing
cancelation of Indebtedness) shall not exceed $10,000,000 in any calendar
year
(with unused amounts carried over to the next two immediately succeeding
calendar years, but not to exceed, in any calendar year, a total of
$20,000,000); provided further
that
such Restricted Payments shall be excluded in the calculation of the amount
of
Restricted Payments;
(vii) the
declaration and payments of dividends on Disqualified Stock issued pursuant
to
Section 6.01; provided
that, at
the time of payment of such dividend, no Default shall have occurred and
be
continuing (or result therefrom); provided
further,
however,
that
such dividends shall be excluded in the calculation of the amount of Restricted
Payments;
(viii) repurchases
of Equity Interests deemed to occur upon exercise of stock options if such
Equity Interest represents a portion of the exercise price of such options,
or
repurchases of Equity Interests deemed to occur upon a withholding of Equity
Interests for taxes due in connection with the exercise, vesting or settlement
of an option or other Equity Interest-based award; provided
that
such Restricted Payments shall be excluded in the calculation of the amount
of
Restricted Payments;
(ix) cash
payments in lieu of the issuance of fractional shares in connection with
the
exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests of the Parent; provided
that any
such cash payment shall not be for the purpose of evading the limitation
of the
covenant described under this subheading (as determined in good faith by
the
board of directors); provided further
that
such payments shall be excluded in the calculation of the amount of Restricted
Payments;
(x) in
the
event of a Change in Control, and if no Default shall have occurred and be
continuing, the payment, purchase, redemption, defeasance or other acquisition
or retirement of Subordinated Obligations of the Borrower or any Guarantor,
in
each case, at a purchase price not greater than 101% of the principal amount
of
such Subordinated Obligations, plus any accrued and unpaid interest thereon;
provided
that
prior to such payment, purchase, redemption, defeasance or other acquisition
or
retirement, the Borrower (or a third party to the extent permitted) has made
an
appropriate Change in Control Offer with respect to the Loans as a result
of
such Change in Control and has repaid all Lenders that validly accepted such
Change in Control Offer; provided further
that
such payments, purchases, redemptions, defeasances or other acquisitions
or
retirements shall be included in the calculation of the amount of Restricted
Payments; or
(xi) payments
of intercompany subordinated Indebtedness owed to the Parent or a Subsidiary,
the incurrence of which was permitted under this Agreement; provided
that no
Event of Default has occurred and is continuing or would otherwise result
therefrom; provided further
that
such payments shall be excluded in the calculation of the amount of Restricted
Payment.
SECTION
6.05. Transactions
with Affiliates.
The
Parent and the Borrower will not, and will not permit any of the other
Subsidiaries to, sell, lease or otherwise transfer any property or assets
to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a) at
prices and on terms and conditions not less favorable to the Parent, the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis from
unrelated third parties, (b) transactions between or among the Parent and
its Subsidiaries not involving any other Affiliate, (c) advances to employees
permitted by Section 6.04, (d) any Restricted Payment permitted by
Section 6.04, (e) fees, compensation and other benefits paid to, and
customary indemnity and reimbursement provided on behalf of, officers, directors
and employees of any Loan Party in the ordinary course of business, (f) any
employment agreement entered into by the Parent or any of the Subsidiaries
in
the ordinary course of business, (g) any Permitted Receivables Financing
and (h)
transactions and agreements in existence on the Existing Credit Agreement
Effective Date and listed on Schedule 6.05 and, in each case, any amendment
thereto that is not disadvantageous to the Lenders in any material
respect.
SECTION
6.06. Restrictive
Agreements.
The
Parent will not permit any Subsidiary (other than a Receivables Subsidiary)
that
is not a Loan Party to, directly or indirectly, enter into, incur or permit
to
exist any agreement or other arrangement in respect of Indebtedness of such
Subsidiary that is secured or that is Guaranteed by a Loan Party that prohibits,
restricts or imposes any condition upon (a) the ability of such Subsidiary
to create, incur or permit to exist any Lien upon any of its property or
assets,
or (b) the ability of such Subsidiary to pay dividends or other
distributions with respect to any of its Equity Interests or to make or repay
loans or advances to the Parent or any other Loan Party or to Guarantee
Indebtedness of the Parent or any other Loan Party; provided,
that
(i) the foregoing shall not apply to restrictions and conditions imposed by
law or this Agreement, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.06 or
to any
extension or renewal thereof, or any amendment or modification thereto that
does
not materially expand the scope of any such restriction or condition,
(iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness, (v) the foregoing shall not apply to
provisions limiting the disposition or distribution of assets or property
or
transfer of Equity Interests in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements, limited liability company
organizational documents, and other similar agreements entered into in the
ordinary course of business, which limitation is applicable only to the assets,
property or Equity Interests that are the subject of such agreements, (vi)
the
foregoing shall not apply to any instrument governing Indebtedness or Equity
Interests of a Person acquired by the Parent or any of its Subsidiaries as
in
effect at the time of such acquisition (except to the extent such Indebtedness
or Equity Interests were incurred or issued in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than
the Person, or the property or assets of the Person, so acquired; provided
that,
in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this
Agreement to be incurred, and (viii) clause (a) of the foregoing shall
not apply to customary provisions in leases and other contracts restricting
the
assignment thereof.
SECTION
6.07. Sales
of Assets and Subsidiary Stock.
The
Parent and Borrower will not, and will not permit any Subsidiary to, directly
or
indirectly, consummate any Asset Disposition unless:
(a) the
Parent or such Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the
value
of all non-cash consideration), as determined in good faith by the Borrower’s
board of directors, of the shares and assets subject to such Asset
Disposition;
(b) the
terms
and conditions of such Asset Disposition were obtained through an arm’s-length
negotiation; and
(c) at
least
75% of the consideration therefor received by the Parent or such Subsidiary
is
in the form of cash or Cash Equivalents; provided
that for
the purposes of this paragraph (c), the amount of (i) any liabilities (as
shown
on the Parent’s or the applicable Subsidiary’s most recent balance sheet (or in
the notes thereto)) of the Parent or any Subsidiary (other than liabilities
that
by their terms are subordinated to the obligations with respect to the Loans)
that are assumed by the transferee of any such assets and from which the
Parent
and any Subsidiary have been validly released by all creditors in writing
and
(ii) any securities received by the Parent or any Subsidiary from such
transferee that are converted into cash (to the extent of the cash received)
within 180 days following the closing of such Asset Disposition shall be
deemed
to be cash for the purposes of this Section 6.07.
ARTICLE
VII
Events
of Default
If
any of
the following events (“Events
of Default”)
shall
occur:
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same
shall
become due and payable, whether at the due date thereof or at a date fixed
for
prepayment thereof or otherwise, or shall fail to make an Asset Disposition
Offer or Change in Control Offer when required to do so or shall fail to
comply
with its obligations in respect of any such Asset Disposition Offer or Change
in
Control Offer and such failure to make an Asset Disposition Offer or Change
in
Control Offer or comply with obligations in connection therewith shall continue
unremedied for a period of three Business Days;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of five Business
Days;
(c) any
representation or warranty made or deemed made by or on behalf any Loan Party
in
or in connection with any Loan Document or any amendment or modification
thereof
or waiver thereunder, or in any report, certificate or financial statement
furnished pursuant to or in connection with any Loan Document or any amendment
or modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;
(d) the
Parent or the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in clause (a) of Section 5.02 or in Section 5.03
(with respect to the existence of the Parent or the Borrower) or 5.08 or
in
Article VI (other than Section 6.05);
(e) any
Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue unremedied for
a
period of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) the
Parent or any Subsidiary shall fail to make any payment of principal, interest
or premium (regardless of amount) in respect of any Material Indebtedness
when
and as the same shall become due and payable, and such failure shall continue
after the expiration of the grace period (if any) for such failure specified
in
the agreement or instrument governing such Indebtedness;
(g) the
Parent or any Subsidiary shall fail to observe or perform any term, covenant,
condition or agreement contained in any agreement or instrument evidencing
or
governing any Material Indebtedness, if such failure results in any Material
Indebtedness becoming due prior to its scheduled maturity; provided
that
this clause (g) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) liquidation,
reorganization or other relief in respect of the Parent or any Subsidiary
(other
than an Excluded Subsidiary) or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for
the Parent or any Subsidiary (other than an Excluded Subsidiary) or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the
Parent or any Subsidiary (other than an Excluded Subsidiary) shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (i) of
this Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Parent
or any Subsidiary (other than an Excluded Subsidiary) or for a substantial
part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the
Parent or any Subsidiary (other than an Excluded Subsidiary) shall become
unable, admit in writing its inability or fail generally to pay its debts
as
they become due;
(k) one
or
more judgments for the payment of money in an aggregate amount in excess
of
$35,000,000 (to the extent such amount is not either (i) covered by
insurance and the applicable insurer has acknowledged liability or has been
notified and is not disputing coverage or (ii) required to be indemnified
by
another Person that is reasonably likely to be able to satisfy its indemnity
obligation (other than the Parent or a Subsidiary) and such Person has
acknowledged such obligation or has been notified and is not disputing such
obligation) shall be rendered against the Parent, any Subsidiary or any
combination thereof and the same shall remain undischarged and unsatisfied
for a
period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the Parent or any Subsidiary to enforce
any
such judgment; or
(l) an
ERISA
Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, would reasonably
be expected to result in a Material Adverse Effect;
then,
and
in every such event (other than an event with respect to the Parent or the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared
to be
due and payable), and thereupon the principal of the Loans so declared to
be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any
kind,
all of which are hereby waived by the Borrower; and in case of any event
with
respect to the Parent or the Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal
of
the Loans then outstanding, together with accrued interest thereon and all
fees
and other obligations of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice
of
any kind, all of which are hereby waived by the Borrower.
ARTICLE
VIII
The
Administrative Agent
Each
of
the Lenders hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf
and
to exercise such powers as are delegated to the Administrative Agent by the
terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
The
bank
serving as the Administrative Agent hereunder shall have the same rights
and
powers in its capacity as a Lender as any other Lender and may exercise the
same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind
of
business with the Parent or any Subsidiary or other Affiliate thereof as
if it
were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality
of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed
by
the Required Lenders (or such other number or percentage of the Lenders as
shall
be necessary under the circumstances as provided in Section 9.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Parent or any of the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken
by it
with the consent or at the request of the Required Lenders (or such other
number
or percentage of the Lenders as shall be necessary under the circumstances
as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given
to the
Administrative Agent by the Parent, the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document
or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur
any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or
by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for a Loan Party), independent
accountants and other experts selected by it, and shall not be liable for
any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The
Administrative Agent may perform any and all its duties and exercise its
rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through
their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities
in
connection with the syndication of the credit facilities provided for herein
as
well as activities as Administrative Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time
by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint
a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York,
New York, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties
in
respect of any actions taken or omitted to be taken by any of them while
it was
acting as Administrative Agent.
Each
Lender acknowledges that it has, independently and without reliance upon
the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that
it
will, independently and without reliance upon the Administrative Agent or
any
other Lender and based on such documents and information as it shall from
time
to time deem appropriate, continue to make its own decisions in taking or
not
taking action under or based upon this Agreement, the Guarantee Agreement,
any
related agreement or any document furnished hereunder or
thereunder.
The
parties hereto acknowledge that the Arrangers (in their capacity as such)
do not
have any duties or responsibilities under any of the Loan Documents and will
not
be subject to liability thereunder to any of the Loan Parties for any
reason.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. (a)
Except
in the case of notices and other communications expressly permitted to be
given
by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by
hand or overnight courier service, mailed by certified or registered mail
or
sent by telecopy, as follows:
(i) if
to the
Parent or the Borrower, to it at Xxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention of the Chief Financial Officer (Telecopy No. 313-758-4238) with a
copy to the Treasurer (Telecopy No. 313-758-3936) and the General Counsel
(Telecopy No. 313-758-3897);
(ii) if
to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 0000 Xxxxxx - 00xx
Xxxxx,
Xxxxxxx, XX 00000, Attention of Xxxxxxxx Xxxxxxxx (Telecopy No.
713-750-2938), with a copy to JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx
-
0xx
Xxxxx,
XX 00000, Attention of Xxxxxxx Xxxxx (Telecopy No. 212-270-5127);
and
(iii) if
to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b)
Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided
that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and
other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided
that
approval of such procedures may be limited to particular notices or
communications.
(c)
Any
party
hereto may change its address or telecopy number or the contact person for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have
been
given on the date of receipt.
SECTION
9.02. Waivers;
Amendments. (a)
No
failure or delay by the Administrative Agent or any Lender in exercising
any
right or power hereunder or under any other Loan Document shall operate as
a
waiver thereof, nor shall any single or partial exercise of any such right
or
power, or any abandonment or discontinuance of steps to enforce such a right
or
power, preclude any other or further exercise thereof or the exercise of
any
other right or power. The rights and remedies of the Administrative Agent
and
the Lenders hereunder are cumulative and are not exclusive of any rights
or
remedies that they would otherwise have. No waiver of any provision of any
Loan
Document or consent to any departure by any Loan Party therefrom shall in
any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in
the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed
as a
waiver of any Default, regardless of whether the Administrative Agent or
any
Lender may have had notice or knowledge of such Default at the
time.
(b)
Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Parent,
the Borrower and the Required Lenders or by the Parent, the Borrower and
the
Administrative Agent with the consent of the Required Lenders or, in the
case of
any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and each Loan Party that is a party
thereto with the consent of the Required Lenders; provided
that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees (including
prepayment fees) payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan, or any interest thereon, or any fees (including
prepayment fees) payable hereunder, or reduce the amount of, waive or excuse
any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.14(b) or (c) in a manner that would alter the pro rata sharing
of
payments required thereby, without the written consent of each Lender,
(v) change any of the provisions of this Section or the definition of
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or
make any determination or grant any consent hereunder, without the written
consent of each Lender or (vi) release the Parent or any Material
Subsidiary from its Guarantee under the Guarantee Agreement, or limit its
liability in respect of such Guarantee, without the written consent of each
Lender; provided further,
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION
9.03. Expenses;
Indemnity; Damage Waiver. (a)
The
Borrower shall pay (i) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of a single counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the
Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender,
in
connection with the enforcement or protection of its rights in connection
with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of
such
Loans.
(b)
The
Borrower shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called
an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by
or
asserted against any Indemnitee arising out of, in connection with, or as
a
result of (i) the execution or delivery of the Loan Documents or any
agreement or instrument contemplated hereby or thereby, the performance by
the
parties hereto of their respective obligations hereunder or thereunder or
the
consummation of the Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or the use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Parent or any of the Subsidiaries,
or any Environmental Liability related in any way to the Parent or any of
the
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on
contract, tort or any other theory and regardless of whether any Indemnitee
is a
party thereto; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a court of competent jurisdiction by final and nonappealable judgment to
have
resulted from the gross negligence or wilful misconduct of such Indemnitee
or
any of its directors, trustees, officers or employees.
(c)
To
the
extent that the Borrower fails to pay any amount required to be paid by it
to
the Administrative Agent under paragraph (a) or (b) of this Section, each
Lender
severally agrees (but without limiting the obligation of the Borrower to
pay
such amount) to pay to the Administrative Agent such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(d)
To
the
extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, the
Loan
Documents or any agreement or instrument contemplated thereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e)
All
amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION
9.04. Successors
and Assigns. (a)
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted
hereby,
except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of
each
Lender (and any attempted assignment or transfer by the Borrower without
such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided
in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby,
the Related Parties of each of the Administrative Agent and the Lenders)
any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b)
(i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans
at the time owing to it) with the prior written consent (such consent not
to be
unreasonably withheld) of:
| (A) |
the
Borrower; provided
that no consent of the Borrower shall be required for an assignment
to a
Lender, an Affiliate of a Lender, an Approved Fund or, if an Event
of
Default under clause (a), (b), (h) or (i) of Article VII has
occurred and is continuing, any other assignee;
and
|
| (B) |
the
Administrative Agent.
|
(ii)
Assignments
shall be subject to the following additional conditions:
| (A) |
except
in the case of an assignment to a Lender or an Affiliate of a Lender
or an
assignment of the entire remaining amount of the assigning Lender’s
Commitment or outstanding Loans, the amount of the Commitment or
outstanding Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect
to
such assignment is delivered to the Administrative Agent) shall not
be
less than $1,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent; provided
that no such consent of the Borrower shall be required if an Event
of
Default under clause (a), (b), (h) or (i) of Article VII has occurred
and is continuing;
|
| (B) |
each
partial assignment shall be made as an assignment of a proportionate
part
of all the assigning Lender’s rights and obligations under this
Agreement;
|
| (C) |
the
parties to each assignment shall execute and deliver to the Administrative
Agent (and, in the case of an assignment requiring the consent of
the
Borrower pursuant to subparagraph (b)(i)(A) of this Section 9.04,
the
Borrower) an Assignment and Assumption, and shall pay to the
Administrative Agent a processing and recordation fee of $3,500;
|
| (D) |
the
Administrative Agent shall notify the Borrower of each assignment
of which
the Administrative Agent becomes aware; provided
that the failure of the Administrative Agent to provide such notice
shall
in no way affect any of the rights or obligations of the Administrative
Agent under this Agreement or otherwise subject the Administrative
Agent
to any liability; and
|
| (E) |
the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
|
For
purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:
“Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by a
Lender,
an Affiliate of a Lender or an entity or an Affiliate of an entity that
administers or manages a Lender.
(iii)
Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of
the interest assigned by such Assignment and Assumption, have the rights
and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of
Sections 2.11, 2.12, 2.13 and 9.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv)
The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans owing
to,
each Lender pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Parent, the Borrower,
the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Parent, the Borrower, any
Lender and their respective representatives (including counsel and accountants),
at any reasonable time and from time to time upon reasonable prior
notice.
(v)
Upon
its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing
and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record
the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register
as
provided in this paragraph.
(c)
Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided
that
(A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (C) such Lender shall deliver to
the
Administrative Agent and the Borrower (in such number of copies as shall
be
requested by the recipient) duly signed completed copies of Internal Revenue
Service Form W-8IMY (or any successor thereto), together with any information
statements of exemption required under the Code for each Participant and
(D) the Loan Parties, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such
Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and
to
approve any amendment, modification or waiver of any provision of this
Agreement
(d)
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of
a
security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or assignee for
such
Lender as a party hereto.
SECTION
9.05. Survival.
All
covenants, agreements, representations and warranties made by the Parent
and
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have
been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge
of
any Default or incorrect representation or warranty at the time any credit
is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other
amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.11,
2.12, 2.13 and 9.03 and Article VIII shall survive and remain in full force
and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters
of
Credit and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION
9.06. Counterparts;
Integration; Effectiveness.
This
Agreement may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but
all of
which when taken together shall constitute a single contract. This Agreement,
the Guarantee Agreement and any separate letter agreements with respect to
fees
payable to the Administrative Agent constitute the entire contract among
the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Article IV, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when
taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties
hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION
9.07. Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff.
Upon the
occurrence and during the continuance of an Event of Default, and provided
that
the Loans shall have become or shall have been declared due and payable pursuant
to the provisions of Article VII, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set
off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender to or for the credit or the account of the Parent or the Borrower
against
any of and all the obligations of the Borrower now or hereafter existing
under
this Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. Any such deposits and obligations may be combined in such
setoff and application, regardless of the currency in which such deposits
and
obligations are denominated. Each Lender agrees to promptly notify the Parent
and the Borrower after any such set-off and application; provided,
that
the failure of any Lender to so notify the Parent and the Borrower shall
not
affect the validity of any such set-off and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION
9.09. Governing
Law; Jurisdiction; Consent to Service of Process. (a)
This
Agreement shall be construed in accordance with and governed by the law of
the
State of New York.
(b)
Each
of
the Parent and the Borrower hereby irrevocably and unconditionally submits,
for
itself and its property, to the nonexclusive jurisdiction of the Supreme
Court
of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out
of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be
heard
and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced
in
other jurisdictions by suit on the judgment or in any other manner provided
by
law. Nothing in this Agreement or any other Loan Document shall affect any
right
that the Administrative Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c)
Each
of
the Parent and the Borrower hereby irrevocably and unconditionally waives,
to
the fullest extent it may legally and effectively do so, any objection which
it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to any Loan Document in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an
inconvenient forum to the maintenance of such action or proceeding in any
such
court.
(d)
Each
party to this Agreement irrevocably consents to service of process in the
manner
provided for notices in Section 9.01. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION
9.10. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality.
Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to
the Borrower and its obligations, (g) with the consent of the Parent or the
Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Parent or the Borrower.
For
the purposes of this Section, “Information”
means
all information received from the Parent or the Borrower relating to the
Parent
or the Borrower or their respective businesses, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Parent or the Borrower. Any Person required
to
maintain the confidentiality of Information as provided in this Section shall
be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each
Lender acknowledges that Information as defined in Section 9.12(a) furnished
to
it pursuant to this Agreement may include material non-public information
concerning the Parent, the Borrower and their Related Parties or their
respective securities, and confirms that it has developed compliance procedures
regarding the use of material non-public information and that it will handle
such material non-public information in accordance with those procedures
and
applicable law, including Federal and state securities laws.
All
information, including requests for waivers and amendments, furnished by
the
Parent, the Borrower or the Administrative Agent pursuant to, or in the course
of administering, this Agreement will be syndicate-level information, which
may
contain material non-public information about the Parent, Borrower, the Loan
Parties and their Related Parties or their respective securities. Accordingly,
each Lender represents to the Parent, the Borrower and the Administrative
Agent
that it has identified in its Administrative Questionnaire a credit contact
who
may receive information that may contain material non-public information
in
accordance with its compliance procedures and applicable law, including Federal
and state securities laws.
SECTION
9.13. Interest
Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”),
shall
exceed the maximum lawful rate (the “Maximum
Rate”)
which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in
respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful,
such excess amount shall be paid to such Lender on subsequent payment dates
to
the extent not exceeding the Maximum Rate.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
AMERICAN
AXLE & MANUFACTURING, INC.
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Treasurer
|
|
|
AMERICAN
AXLE & MANUFACTURING HOLDINGS, INC.
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Treasurer
|
|
|
JPMORGAN
CHASE BANK, N.A., individually and as Administrative Agent
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Managing Director
|
|
WHEREAS
the Borrower has requested, and the Administrative Agent has agreed, upon
the
terms and subject to the conditions set forth herein, that the Existing Credit
Agreement be amended as provided herein in order to give effect to the making
of
Incremental Term Loans pursuant to Section 2.16 of the Existing Credit
Agreement;
NOW,
THEREFORE, the Borrower, the Parent, the lenders party hereto and the
Administrative Agent hereby agree as follows:
SECTION
1. Defined
Terms.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Amended Credit Agreement referred to below.
SECTION
2. Amendment
Effective Date. (a)
The
transactions provided for in Sections 3 and 4 hereof shall be consummated
at a closing to be held on the Amendment Effective Date at the offices of
Cravath, Swaine & Xxxxx LLP, or at such other time and place as
the Borrower and the Administrative Agent shall agree upon.
(b)
The
“Amendment
Effective Date”
shall
be a date specified by the Borrower as of which all the conditions set forth
or
referred to in Section 5 hereof shall have been satisfied. This Agreement
shall terminate at 5:00 p.m., New York City time, on September 30,
2006, if the Amendment Effective Date shall not have occurred at or prior
to
such time.
SECTION
3. Incremental
Term Loans.
Subject
to the terms and conditions set forth herein, each Lender listed on the
signature pages hereto agrees to make an Incremental Term Loan to the Borrower
on the Amendment Effective Date in a principal amount equal to the amount
of its
commitment (such commitment, the “Incremental
Term Loan Commitment”)
set
forth for such Lender on Schedule 1 hereto. The provisions of Sections 2.02
and 2.03 of the Amended Credit Agreement shall apply for all purposes of
making
the Incremental Term Loans, except as otherwise provided herein.
SECTION
4. Amendment
of the Existing Credit Agreement.
Effective upon the Amendment Effective Date, the Existing Credit Agreement
(excluding the annexes, schedules and exhibits thereto that are not attached
as
part of Exhibit A hereto) is hereby amended and restated to read in its
entirety as set forth in Exhibit A hereto (the “Amended
Credit Agreement”),
and
the Administrative Agent is hereby directed by the Lenders listed on Schedule
1
to enter into such amendments to the Loan Documents and to take such other
actions as may be required to give effect to the transactions contemplated
hereby. From and after the effectiveness of such amendment and restatement,
the
terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof”
and words of similar import, as used in the Amended Credit Agreement, shall,
unless the context otherwise requires, refer to the Existing Credit Agreement
as
amended and restated in the form of the Amended Credit Agreement, and the
term
“Credit Agreement”, as used in the other Loan Documents, shall mean the Amended
Credit Agreement.
SECTION
5. Conditions.
The
consummation of the transactions set forth in Sections 3 and 4 of this
Agreement shall be subject to the satisfaction (or waiver in accordance with
Section 6 below) of the following conditions precedent:
(a)
The
Administrative Agent (or its counsel) shall have received from each party
hereto
either a counterpart of this Agreement signed on behalf of such party or
written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has
signed a counterpart of this Agreement.
(b)
The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders listed on Schedule 1 and dated
the
Amendment Effective Date) of Shearman & Sterling LLP, counsel to the Loan
Parties, substantially in the form of Exhibit B-1, and covering such other
matters relating to the Loan Parties, the Loan Documents or the Amendment
Transactions as the Lenders listed on Schedule 1 shall reasonably request.
The
Parent and the Borrower hereby request such counsel to deliver such
opinion.
(c)
The
Administrative Agent shall have received such documents and certificates
as the
Administrative Agent or its counsel may reasonably request relating to (i)
the
organization, existence and good standing of the Loan Parties and the
authorization of the Amendment Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel and (ii) confirmation
by the Guarantors that the Guarantee Agreement remains in effect.
(d)
The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Amendment Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be
reimbursed or paid by the Borrower hereunder.
(e)
At
the time of and immediately after giving effect to the making of the Incremental
Term Loans hereunder, the representations and warranties of the Loan Parties
set
forth in the Loan Documents shall be true and correct in all material
respects.
(f)
At
the time of and immediately after giving effect to the making of the Incremental
Term Loans hereunder, no Default shall have occurred and be
continuing.
(g)
The
Administrative Agent shall have received a notice of borrowing from the Borrower
with respect to the borrowing of Incremental Term Loans hereunder on the
Amendment Effective Date, which notice (i) shall be delivered not later
than 12:00 noon, New York City time, three Business Days before the
Amendment Effective Date, if any Eurodollar Borrowing is to be made on the
Amendment Effective Date, or, otherwise, not later than 5:00 p.m., New York
City time, one Business Day before the Amendment Effective Date, (ii) shall
specify the aggregate amount of such requested Borrowing, the Type of such
Borrowing and, in the case of any Eurodollar Borrowing, the initial Interest
Period to be applicable thereto and (iii) the location and number of the
Borrower’s account to which funds are to be disbursed.
The
Administrative Agent shall notify the Borrower and the Lenders of the Amendment
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the consummation of the transactions set forth in Sections
3 and
4 of this Agreement shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 6 below) at or prior
to
5:00 pm, New York City time, on September 30, 2006 (and, in the event such
conditions are not so satisfied or waived, the Existing Credit Agreement
shall
remain in effect without giving effect to any provisions of this
Agreement).
SECTION
6. Effectiveness;
Counterparts; Amendments.
(a) This Agreement shall become effective when copies hereof which,
when taken together, bear the signatures of the Borrower, the Administrative
Agent and the Lenders party hereto, shall have been received by the
Administrative Agent. This Agreement may not be amended nor may any provision
hereof be waived except pursuant to a writing signed by the Borrower, and
the
Administrative Agent. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which
when
taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or other
electronic transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION
7. No
Novation.
This
Agreement shall not extinguish the Indebtedness outstanding under the Existing
Credit Agreement. Nothing herein contained shall be construed as a substitution
or novation of the Indebtedness outstanding under the Existing Credit Agreement,
which shall remain outstanding after the Amendment Effective Date as modified
hereby. Notwithstanding any provision of this Agreement, the provisions of
Sections 2.11, 2.12, 2.13 and 9.03 of the Amended Credit Agreement will
continue to be effective as to all matters arising out of or in any way related
to facts or events existing or occurring prior to the Amendment Effective
Date
but only to the extent expressly set forth therein.
SECTION
8. Notices.
All
notices hereunder shall be given in accordance with the provisions of
Section 9.01 of the Amended Credit Agreement.
SECTION
9. Applicable
Law; Waiver of Jury Trial. (A) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE
STATE OF NEW YORK.
(B)
EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE AMENDED
CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN EXCEPT
THAT
THE TERM “AGREEMENT” THEREIN SHALL BE DEEMED TO REFER TO THIS
AGREEMENT.
SECTION
10. Affirmation
of Guarantor.
The
Parent hereby consents to the Amended Credit Agreement, and hereby confirms
and
agrees that the obligations of the Parent contained in the Guarantee Agreement
and in any other Loan Documents to which it is a party are, and shall remain,
in
full force and effect and are hereby ratified and confirmed in all
respects.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.
|
AMERICAN
AXLE & MANUFACTURING, INC.
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Treasurer
|
|
|
AMERICAN
AXLE & MANUFACTURING HOLDINGS, INC.
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Treasurer
|
|
|
JPMORGAN
CHASE BANK, N.A., individually and as Administrative Agent
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Managing Director
|
|
|
JPMORGAN
CHASE BANK, N.A., as Lender
|
|
|
by
|
|
| /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Managing Director
|
|
SCHEDULES
AND EXHIBITS
Schedules
Schedule
1 ― Incremental
Term Loan Commitments
Exhibits
Exhibit
A ― Amended
Credit Agreement
Exhibit
B-1 ― Form
of
Opinion of Shearman & Sterling LLP
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the “Assignor”)
and
[Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment
and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns
to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from
the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations in its capacity as a Lender under the Credit Agreement
and any
other documents or instruments delivered pursuant thereto to the extent
related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the credit facility
identified below (including any guarantees included in such facility) and
(ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in
its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby
or in any way based on or related to any of the foregoing, including contract
claims, tort claims, malpractice claims, statutory claims and all other
claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as
expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1. Assignor:
2. Assignee:
[and
is
an Affiliate/Approved Fund of [Identify Lender]]1
3. Borrower:
American Axle & Manufacturing, Inc.
|
4.
|
Administrative
Agent: JPMorgan Chase Bank, N.A., as Administrative Agent under
the Credit
Agreement
|
|
5.
|
Credit
Agreement: The $200,000,000 Credit Agreement dated as of June 28,
2006, among American Axle & Manufacturing, Inc., American Axle &
Manufacturing Holdings, Inc., the Lenders party thereto and JPMorgan
Chase
Bank, N.A., as Administrative
Agent.
|
|
6.
|
Assigned
Interest:
|
|
Facility
Assigned
|
Aggregate
Amount of Commitment/Loans for all Lenders
|
Amount
of Commitment/Loans Assigned
|
Percentage
Assigned
of Commitment/Loans2
|
|
Term
Loan Facility
|
$
200,000,000
|
$
|
%
|
Effective
Date: ,
20
[TO BE
INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR].
The
Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more
Credit
Contacts to whom all syndicate-level information (which may contain material
non-public information about the Borrower, the Loan Parties and their Related
Parties or their respective securities) will be made available and who
may
receive such information in accordance with the Assignee’s compliance procedures
and applicable laws, including Federal and state securities laws.
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR],
by
Title:
ASSIGNEE
[NAME OF ASSIGNEE],
by
Title:
[Consented
to and]3
Accepted:
JPMORGAN
CHASE BANK, N.A., as Administrative Agent,
by
Title:
[Consented
to:]4
AMERICAN
AXLE & MANUFACTURING, INC.,
by
Title:
1 Select
as
applicable.
2
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all
Lenders thereunder.
3 To
be
included only if the consent of the Administrative Agent is required
by
Section 9.04(b)(i)(B) of the Credit Agreement.
4 To
be
included only if the consent of the Borrower is required by
Section 9.04(b)(i)(A) of the Credit Agreement.
AMERICAN
AXLE & MANUFACTURING, INC.
$200,000,000
CREDIT FACILITY
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.
Representations
and Warranties.
1.1
Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute
and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to
(i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the
Loan Documents, (iii) the financial condition of the Parent, the Borrower,
any of the Subsidiaries or other Affiliates of the Parent or any other
Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Parent, the Borrower, any of the Subsidiaries or other
Affiliates of the Parent or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby
and to become a Lender under the Credit Agreement, (ii) it satisfies the
requirements, if any, specified in the Credit Agreement that are required
to be
satisfied by it in order to acquire the Assigned Interest and become a
Lender,
(iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent
of
the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 5.01
thereof, as applicable, and such other documents and information as it
has
deemed appropriate to make its own credit analysis and decision to enter
into
this Assignment and Assumption and to purchase the Assigned Interest on
the
basis of which it has made such analysis and decision independently and
without
reliance on the Administrative Agent or any other Lender, and (v) if it is
a Foreign Lender, attached to this Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the
Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that
(i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents,
and
(ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by
it as a
Lender.
2.
Payments.
From and
after the Effective Date, the Administrative Agent shall make all payments
in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued
to but
excluding the Effective Date and to the Assignee for amounts which have
accrued
from and after the Effective Date.
3.
General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit
of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of
a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
| Lender
|
|
Existing
Term Loan
|
Incremental
Term Loan
|
|||||||
|
Alcentra
|
$
|
11,000,000.00
|
||||||||
|
Babson
Capital Management
|
$
|
11,467,536.67
|
||||||||
|
BBT
Fund, L.P.
|
$
|
2,640,000.00
|
||||||||
|
Bank
of America, N.A.
|
$
|
8,000,000.00
|
||||||||
|
Barclays
Capital Inc.
|
$
|
15,000,000.00
|
||||||||
|
Bass
Brothers Enterprises Inc.
|
$
|
360,000.00
|
||||||||
|
Bear
Xxxxxxx and Co. Inc.
|
$
|
1,000,000.00
|
||||||||
|
Blackstone
Debt Advisors, L.P.
|
$
|
15,000,000.00
|
||||||||
|
BlueMountain
Capital Management LP
|
$
|
2,000,000.00
|
||||||||
|
Callidus
Capital Management
|
$
|
2,000,000.00
|
||||||||
|
CypressTree
Investment Managment Co
|
$
|
12,000,000.00
|
||||||||
|
XxXxxx
Xxxxx Capital LLC
|
$
|
3,000,000.00
|
||||||||
|
Hypo
Public Finance Bank
|
$
|
1,000,000.00
|
||||||||
|
ING
Alternative Asset Management LLC
|
$
|
5,000,000.00
|
||||||||
|
ING
Group
|
$
|
3,000,000.00
|
||||||||
|
Invesco
|
$
|
12,236,000.00
|
||||||||
|
Intermarket
Corp.
|
$
|
7,000,000.00
|
||||||||
|
X.X.
Xxxxxx Whitefriars, Inc.
|
$
|
5,000,000.00
|
||||||||
|
JPMorgan
Chase Bank, N.A.
|
$
|
6,000,000.00
|
$
|
50,000,000.00
|
||||||
|
XxXxxxxxx
Investment Management LLC
|
$
|
4,000,000.00
|
||||||||
|
MJX
Asset Management LLC
|
$
|
3,000,000.00
|
||||||||
|
Xxxxxxx
Lynch, Pierce, Xxxxxx and Xxxxx
|
$
|
20,000,000.00
|
||||||||
|
Northwestern
Mutual Life Insur. Co.
|
$
|
8,000,000.00
|
||||||||
|
ORIX
Finance Corp.
|
$
|
2,000,000.00
|
||||||||
|
Sankaty
Advisors LLC
|
$
|
6,000,000.00
|
||||||||
|
Satellite
Asset Management
|
$
|
20,000,000.00
|
||||||||
|
Scotiabanc
Inc.
|
$
|
5,000,000.00
|
||||||||
|
Tall
Tree Investment Management, LLC
|
$
|
1,000,000.00
|
||||||||
|
UBS
AG, Stamford Branch
|
$
|
2,000,000.00
|
||||||||
|
Wachovia
Bank NA North Carolina
|
$
|
2,296,463.33
|
||||||||
|
Xxxxx
Capital Mgmt.
|
$
|
2,000,000.00
|
||||||||
|
Xxxxx
Fargo Capital Market
|
$
|
2,000,000.00
|
||||||||
|
Total:
|
$
|
200,000,000.00
|
$
|
50,000,000.00
|
||||||
SCHEDULE
3.05
DISCLOSED
MATTERS
NONE
SCHEDULE
3.11
SUBSIDIARIES
Material
Subsidiaries:
NONE.
Subsidiaries:
|
|
Jurisdiction
of
Organization
|
Percent
Owned
by
Immediate
Parent
|
|
|
|
|
|
American
Axle & Manufacturing Holdings, Inc.
|
Delaware
|
100%
|
|
American
Axle & Manufacturing, Inc.
|
Delaware
|
100%
|
|
Colfor
Manufacturing Inc.
|
Delaware
|
100%
|
|
MSP
Industries Corporation
|
Michigan
|
100%
|
|
MSP
Team LLC
|
Michigan
|
99%(1)
|
|
AAM
International Holdings, Inc
|
Delaware
|
100%
|
|
AAM
Comercio e Participacoes Ltda.
|
Brazil
|
99.99%(1)
|
|
AAM
do Brasil Ltda
|
Brazil
|
99.23%
|
|
AAM
Mauritius Holdings Ltd
|
Mauritius
|
100%
|
|
Changshu
AAM Automotive Driveline High Technology Manufacturing Co.,
Ltd.
|
China
|
100%
|
|
Asia
Pacific Office Branch, (Tokyo, Japan)
|
Japan
|
|
|
China
Representative Office, (Shanghai, China)
|
China
|
|
|
American
Axle & Manufacturing Korea, Inc.
|
Korea
|
100%
|
|
AAM
Services India Private Ltd.
|
India
|
99%(1)
|
|
AAM
Poland Sp. z o. o.
|
Poland
|
100%
|
|
AAM
Poland Production Sp. z o. o.
|
Poland
|
99%(1)
|
|
Albion
Automotive (Holdings) Limited
|
Scotland
|
100%
|
|
Albion
Automotive Limited
|
Scotland
|
100%
|
|
AAM
Mexico Holdings LLC
|
Delaware
|
100%
|
|
American
Axle & Manufacturing de
Mexico Holdings S. de X.X. de C.V. |
Mexico
|
99.99%(1)
|
|
Guanajuato
Gear & Axle de
Mexico S. de X.X. de C.V. |
Mexico
|
99.99%(1)
|
|
American
Axle &
Manufacturing de Mexico S. de X.X. de C.V. |
Mexico
|
99.99%(1)
|
|
AAM
Maquiladora Mexico S. de X.X. de C.V.
|
Mexico
|
99.99%(1)
|
|
AAM
Europe GmbH
|
Germany
|
100%
|
|
AAM
Luxembourg S.á x.x.
|
Luxembourg
|
100%
|
|
AAM
International S.á x.x.
|
Luxembourg
|
100%
|
(1)
Remaining shares owned by the Parent or the Subsidiaries
SCHEDULE
6.01
EXISTING
INDEBTEDNESS
Existing Letters
of
Credit
1.
Standby Letter
of Credit in the amount of $8,000,000 issued for the benefit of
American Zurich Insurance Company & Zurich American Insurance Company, dated
October 21, 2003 and expiring October 1, 2004.
2.
Standby Letter
of Credit in the amount of $8,000,000 issued for the benefit of
American Zurich Insurance Company & Zurich American Insurance Company, dated
October 27, 2004 and expiring October 1, 2005.
3.
Standby Letter
of Credit in the amount of $5,462,396.00 issued for the benefit
of American Zurich Insurance Company & Zurich American Insurance Company,
dated October 27, 2005 and expiring October 1, 2006.
4.
Standby Letter of Credit in the amount of $3,500,000 issued for the
benefit of
Royal Indemnity Company, dated April 29, 2003 and expiring April
30, 2004.
Other Surviving Indebtedness
1.
$30,000,000 Offering Basis Loan
Agreement, dated as of February 28, 2006,
between American Axle & Manufacturing, Inc. and Fifth Third Bank.
2.
$30,000,000 Offering Basis Loan Agreement, dated as of March 27,
2006, between
American Axle & Manufacturing, Inc. and Charter One Bank, N.A
3.
$25,000,000 Offering Basis Loan Agreement, dated as of February 21,
2005,
between American Axle & Manufacturing, Inc. and BNP Paribas.
4.
$25,000,000 Offering Basis Loan Agreement, dated as of August 27,
2004, between
American Axle & Manufacturing, Inc. and Calyon, New York Branch.
5.
£14,900,000 Revolving Credit Facility, dated as of June 10, 2004,
amended
September 8, 2004, February 2, 2006 and April 6, 2006 expiring on
demand between
Albion Automotive and ABN Amro Bank.
6.
£100,000 VAT Guarantee part of the Credit Facility, dated April 6,
2006 expiring
on demand, 2006 between Albion Automotive, ABN Amro Bank and HM Customs
&
Excise.
7.
Master Lease Agreement, dated as of August 21, 1997 and expiring
May 21, 2012,
between Albion Automotive Limited and Clydemore Properties Limited.
Outstandings of £1,371,511.20 as of June 27, 2006.
8.
Overdraft Facility in the amount of 13,000,000 Brazilian Reais dated
as of
February 13th, 2006 and expiring August 14, 2006 by and between AAM
do Brasil
Ltda. and HSBC Bank Brasil S.A.
9.
Overdraft Facility in the amount of 25,000,000 Brazilian Reais dated
as of April
28th 2006 and expiring July 27th, 2006 between AAM do Brasil Ltda
and BankBoston
Banco Multiplo S/A. There are provisions within the contract that would
increase the amount to 55,000,000 Brazilian Reais upon the request
of AAM do
Brazil Ltda.
10.
$600,000,000 Revolving Credit Facility, dated as of June 9, 2004,
amended as of
April 12, 2005, among American Axle & Manufacturing, Inc., American
Axle & Manufacturing Holdings, Inc., and JPMorgan Chase Bank, X.X. Xxxxxx
Securities Inc. and Banc of America Securities LLC.
SCHEDULE
6.02
EXISTING LIENS
EXISTING LIENS
1. Encumbrances
on assets granted to secure payments of amounts owed under:
1.
Master Lease Agreement, dated as of August 21, 1997 and expiring
May 21, 2012,
between Albion Automotive Limited and Clydemore Properties Limited.
Outstandings of £1,371,511.20 as of June 27, 2006.
2.
Filings made with respect to equipment
(leased or owned), including, without
limitation, filings made against the Parent and the following Subsidiaries
by
the entities and/or their assignees listed below such Parent or Subsidiary’s
name:
(a) American
Axle & Manufacturing Holdings, Inc.
Transamerica Equipment Financial
Services Corporation
Tage Equipment Financial Services
Corporation
(b) American
Axle & Manufacturing Inc.
BNY Capital Resources Corp.
Comerica Bank
Comerica Leasing, a Division
of Comerica
Bank
De Xxxx Xxxxxx Financial Services
Dell Financial Services, L.P.
Fifth Third Leasing Company
Fleet Capital Corporation
General Electric Capital
Corporation
The Huntington National Bank
Lasalle National Leasing
Corporation
Mellon Leasing Corporation
Xxxxxx Tool & Die Co.
National City Leasing Corp.
O/E Systems, Inc.
The Orix/American Axle Trust
PNC Leasing Corp.
Provident Commercial Group,
Inc.
Steelcase Financial Services
Inc.
Tage Equipment Financial Services
Corporation
Transamerica Equipment Financial
Services Corporation
Valenite, LLC.
(c) Colfor
Manufacturing Inc.
Citicorp Vendor Finance Inc.
General Electric Capital
Corporation
(d)
MSP Industries Corporation
Xxxx Xxxxxxxx
SCHEDULE
6.05
EXISTING
TRANSACTIONS WITH AFFILIATES
NONE
SCHEDULE
6.06
EXISTING
RESTRICTIONS
NONE
|
GUARANTEE
AGREEMENT
dated
as of
June 28,
2006
among
AMERICAN
AXLE & MANUFACTURING, INC.,
AMERICAN
AXLE & MANUFACTURING HOLDINGS, INC.,
THE
SUBSIDIARY GUARANTORS
IDENTIFIED
HEREIN
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
|
TABLE
OF
CONTENTS
ARTICLE I
Definitions
Definitions
SECTION 1.01. Credit
Agreement.......................................................................................
1
SECTION 1.02. Other Defined
Terms..................................................................................
1
ARTICLE II
The Guarantees
The Guarantees
SECTION 2.01.
Guarantee...................................................................................................
2
SECTION 2.02. Guarantee of
Payment.................................................................................
2
SECTION 2.03. No
Limitations............................................................................................
2
SECTION 2.04.
Reinstatement.............................................................................................
3
SECTION 2.05. Agreement To Pay;
Subrogation..................................................................
4
SECTION 2.06.
Information.................................................................................................
4
ARTICLE III
Indemnity, Subrogation and Subordination
Indemnity, Subrogation and Subordination
SECTION 3.01. Indemnity and
Subrogation..........................................................................
4
SECTION 3.02. Contribution and
Subrogation......................................................................
4
SECTION 3.03.
Subordination.............................................................................................
5
ARTICLE IV
Miscellaneous
Miscellaneous
SECTION 4.01.
Notices.......................................................................................................
5
SECTION 4.02. Waivers;
Amendment..................................................................................
5
SECTION 4.03. Administrative
Agent’s Fees
and Expenses; Indemnification......................... 6
SECTION 4.04. Successors and
Assigns..............................................................................
6
SECTION 4.05. Survival of
Agreement.................................................................................
6
SECTION 4.06. Counterparts;
Effectiveness;
Several Agreement.......................................... 7
SECTION 4.07.
Severability.................................................................................................
7
SECTION 4.08. Right of
Set-Off..........................................................................................
7
SECTION 4.09. Governing Law;
Jurisdiction;
Consent to Service of Process......................... 8
SECTION 4.10. WAIVER OF JURY
TRIAL......................................................................
8
SECTION 4.11.
Headings....................................................................................................
9
SECTION 4.12.
Termination.................................................................................................
9
SECTION 4.13. Additional
Guarantors.................................................................................
9
Schedules
Schedule
I Initial Subsidiary Guarantors
Exhibits
Exhibit
A Form of
Supplement
GUARANTEE AGREEMENT dated
as of
June 28, 2006 among AMERICAN AXLE & MANUFACTURING, INC., AMERICAN AXLE
& MANUFACTURING HOLDINGS, INC., the SUBSIDIARY GUARANTORS identified
herein
and JPMORGAN CHASE BANK, as Administrative Agent.
Reference is made to the Credit
Agreement
dated as of June 28, 2006 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among American Axle &
Manufacturing, Inc. (the “Borrower”), American Axle & Manufacturing
Holdings, Inc. (the “Parent”), the Lenders party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent. The Lenders have agreed to
extend credit to the Borrower subject to the terms and conditions
set forth in
the Credit Agreement. The obligations of the Lenders to extend such credit
are conditioned upon, among other things, the execution and delivery
of this
Agreement. The Parent and the Subsidiary Guarantors are affiliates of the
Borrower, will derive substantial benefits from the extension of
credit to the
Borrower pursuant to the Credit Agreement and are willing to execute
and deliver
this Agreement in order to induce the Lenders to extend such credit.
Accordingly, the parties hereto agree as follows:
SECTION
1.01.
Credit Agreement. (a) Capitalized
terms used in this Agreement and not otherwise defined herein have
the meanings
specified in the Credit Agreement.
(b)
The
rules
of construction specified in Section 1.03 of the Credit Agreement
also apply to
this Agreement.
SECTION
1.02.
Other Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Borrower”
has
the meaning assigned to such term in the preliminary statement of
this
Agreement.
“Credit
Agreement” has the meaning assigned to such term in the preliminary
statement of this Agreement.
“Guaranteed
Parties” means (a) the Lenders, (b) the Administrative Agent,
(c) the beneficiaries of each indemnification obligation undertaken by
the
Borrower under the Credit Agreement and (d) the successors and permitted
assigns of each of the foregoing.
“Guarantors”
means the Parent and the Subsidiary Guarantors.
“Obligations”
means (a) the due and punctual payment by the Borrower of (i) the
principal of
and interest (including interest accruing during the pendency of
any bankruptcy,
insolvency, receivership or other similar proceeding, regardless
of whether
allowed or allowable in such proceeding) on the Loans, when and as
due, whether
at maturity, by acceleration, upon one or more dates set for prepayment
or
otherwise, and (ii) all other monetary obligations of the Borrower
to any of the
Guaranteed Parties under the Credit Agreement, including obligations
to pay
fees, expense reimbursement obligations and indemnification obligations,
whether
primary, secondary, direct, contingent, fixed or otherwise (including
monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed
or
allowable in such proceeding) and (b) the due and punctual payment
of all other
obligations of each Loan Party under or pursuant to each of the Loan
Documents.
“Parent”
has
the meaning assigned to such term in the preliminary statement of
this
Agreement.
“Subsidiary
Guarantors” means the Subsidiaries identified on Schedule I and each
other Subsidiary that becomes a party to this Agreement as a Subsidiary
Guarantor after the Effective Date pursuant to Section 4.13 of this
Agreement or
Section 5.09 of the Credit Agreement; provided, that if a Subsidiary is
released from its obligations as a Subsidiary Guarantor hereunder
as provided in
Section 4.12(b) or (c), such Subsidiary shall cease to be a Subsidiary
Guarantor
hereunder effective upon such release.
SECTION
2.03.
No Limitations. (a) Except for
termination of a Guarantor’s obligations hereunder as expressly provided in
Section 4.12, the obligations of each Guarantor hereunder shall not
be subject
to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and
shall not be subject to any defense or set-off, counterclaim, recoupment
or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder
shall
not be discharged or impaired or otherwise affected by (i) the failure of
any Guaranteed Party to assert any claim or demand or to enforce
any right or
remedy under the provisions of any Loan Document or otherwise; (ii) any
rescission, waiver, amendment or modification of, or any release
from any of the
terms or provisions of, any Loan Document or any other agreement,
including with
respect to any other Guarantor under this Agreement; (iii) the release
of any
security held by any Guaranteed Party for any of the Obligations;
(iv) any
default, failure or delay, wilful or otherwise, in the performance
of the
Obligations; or (v) any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or otherwise
operate as a
discharge of any Guarantor as a matter of law or equity (other than
the payment
in full in cash of all the Obligations). If any security is granted to
secure the payment of the Obligations, each Guarantor expressly authorizes
the
Guaranteed Parties to exchange, waive or release any or all such
security (with
or without consideration), to enforce or apply such security and
direct the
order and manner of any sale thereof in their sole discretion or
to release or
substitute any one or more other guarantors or obligors upon or in
respect of
the Obligations, all without affecting the obligations of any Guarantor
hereunder.
(b)
To
the
fullest extent permitted by applicable law, each Guarantor waives
any defense
based on or arising out of any defense of the Borrower or any other
Loan Party
or the unenforceability of the Obligations or any part thereof from
any cause,
or the cessation from any cause of the liability of the Borrower
or any other
Loan Party, other than the payment in full in cash of all the Obligations.
The Guaranteed Parties may, at their election, foreclose on any security
held by
one or more of them by one or more judicial or nonjudicial sales,
accept an
assignment of any such security in lieu of foreclosure, compromise
or adjust any
part of the Obligations, make any other accommodation with the Parent,
the
Borrower or any other Loan Party or exercise any other right or remedy
available
to them against the Parent, the Borrower or any other Loan Party,
without
affecting or impairing in any way the liability of any Guarantor
hereunder
except to the extent the Obligations have been fully paid in full
in cash.
To the fullest extent permitted by applicable law, each Guarantor
waives any
defense arising out of any such election even though such election
operates,
pursuant to applicable law, to impair or to extinguish any right
of
reimbursement or subrogation or other right or remedy of such Guarantor
against
the Parent, the Borrower or any other Loan Party, as the case may
be, or any
security.
SECTION
4.02.
Waivers; Amendment. (a) No failure or
delay by the Administrative Agent or any Lender in exercising any
right or power
hereunder or under any other Loan Document shall operate as a waiver
thereof,
nor shall any single or partial exercise of any such right or power,
or any
abandonment or discontinuance of steps to enforce such a right or
power,
preclude any other or further exercise thereof or the exercise of
any other
right or power. The rights and remedies of the Administrative Agent and
the Lenders hereunder and under the Credit Agreement are cumulative
and are not
exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure
by any
Loan Party therefrom shall in any event be effective unless the same
shall be
permitted by paragraph (b) of this Section 4.02, and
then such waiver or consent shall be effective only in the specific
instance and
for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver
of any
Default, regardless of whether the Administrative Agent or any Lender
may have
had notice or knowledge of such Default at the time. No notice or demand
on any Loan Party in any case shall entitle any Loan Party to any
other or
further notice or demand in similar or other circumstances.
(b)
Neither
this Agreement nor any provision hereof may be waived, amended or
modified
except pursuant to an agreement or agreements in writing entered
into by the
Administrative Agent and the Loan Party or Loan Parties with respect
to which
such waiver, amendment or modification is to apply, subject to any
consent
required in accordance with Section 9.02 of the Credit
Agreement.
SECTION
4.03.
Administrative Agent’s Fees and Expenses; Indemnification.
(a) The parties hereto agree that
the
Administrative Agent shall be entitled to reimbursement of its expenses
incurred
hereunder as provided in Section 9.03 of the Credit Agreement.
(b)
Without
limitation of the Borrower’s indemnification obligations under the Credit
Agreement, each Guarantor jointly and severally agrees to indemnify
the
Administrative Agent and the other Indemnitees (as defined in Section 9.03
of the Credit Agreement) against, and hold each Indemnitee harmless
from, any
and all losses, claims, damages, liabilities and related expenses,
including the
reasonable fees, charges and disbursements of any counsel for any
Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in
connection
with, or as a result of, the execution, delivery or performance of
this
Agreement or any claim, litigation, investigation or proceeding relating
to any
of the foregoing agreement or instrument contemplated hereby, whether
or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted
from the gross
negligence or wilful misconduct of such Indemnitee or any of its
directors,
trustees, officers or employees.
(c)
The
provisions of this Section 4.03 shall remain operative and in full force
and effect regardless of the termination of this Agreement or the
Credit
Agreement, the consummation of the transactions contemplated hereby,
the
repayment of any of the Obligations, the invalidity or unenforceability
of any
term or provision of this Agreement or the Credit Agreement, or any
investigation made by or on behalf of any Guaranteed Party. All amounts
due under this Section 4.03 shall be payable promptly after written demand
therefor.
SECTION
4.09.
Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed
in
accordance with and governed by the law of the State of New York.
(b)
Each
of the
Loan Parties hereby irrevocably and unconditionally submits, for
itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of
the State of
New York sitting in New York County and of the United States District
Court of
the Southern District of New York, and any appellate court from any
thereof, in
any action or proceeding arising out of or relating to this Agreement
or any
other Loan Document, or for recognition or enforcement of any judgment,
and each
of the parties hereto hereby irrevocably and unconditionally agrees
that all
claims in respect of any such action or proceeding may be heard and
determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by
law. Nothing in this Agreement or any other Loan Document shall affect
any
right that the Administrative Agent or any Lender may otherwise have
to bring
any action or proceeding relating to this Agreement or any other
Loan Document
against any Guarantor or its properties in the courts of any
jurisdiction.
(c)
Each
of the
Loan Parties hereby irrevocably and unconditionally waives, to the
fullest
extent it may legally and effectively do so, any objection which
it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising
out of or relating to this Agreement or any other Loan Document in
any court
referred to in paragraph (b) of this Section 4.09. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted
by law, the
defense of an inconvenient forum to the maintenance of such action
or proceeding
in any such court.
(d)
Each
party
to this Agreement irrevocably consents to service of process in the
manner
provided for notices in Section 4.01. Nothing in this Agreement or the
Credit Agreement will affect the right of any party to this Agreement
to serve
process in any other manner permitted by law.
SECTION
4.12.
Termination. (a) Subject to Section
2.04, this Agreement and the Guarantees made herein shall terminate
when all the
outstanding Obligations have been paid in full in cash and the Lenders
have no
further commitment to lend under the Credit Agreement.
(b)
A
Subsidiary Guarantor shall automatically be released from its obligations
hereunder upon the consummation of any transaction permitted by the
Credit
Agreement as a result of which such Subsidiary Guarantor ceases to
be a
Subsidiary of the Parent; provided that the Required Lenders shall have
consented to such transaction (to the extent required by the Credit
Agreement)
and the terms of such consent did not provide otherwise.
(c)
If
and when
a Subsidiary Guarantor ceases to be a Material Subsidiary, such Subsidiary
Guarantor shall be released from its obligations hereunder; provided,
that such release shall not be effective unless and until the Administrative
Agent shall have received a certificate, executed on behalf of each
of the
Parent and the Borrower by one of its Financial Officers and reasonably
satisfactory in form to the Administrative Agent, identifying each
Subsidiary
Guarantor to be released and certifying that (i) such Subsidiary
Guarantor to be
released is no longer a Material Subsidiary and (ii) no Default has
occurred and
is continuing both before and after giving effect to such release. It is
understood that the Parent and the Borrower may, at their option,
elect not to
identify a Subsidiary Guarantor in such certificate that otherwise
is entitled
to be released pursuant to this paragraph, in which case such Subsidiary
shall
remain a Subsidiary Guarantor hereunder, subject to the right to
effect the
release of such Subsidiary Guarantor at a later date upon delivery
of another
certificate with respect to such Subsidiary Guarantor in accordance
with this
paragraph.
IN WITNESS WHEREOF,
the
parties hereto have duly executed this Guarantee Agreement as of
the day and
year first above written.
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AMERICAN AXLE & MANUFACTURING, INC.,
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By
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President-Finance
&
CFO
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AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC.
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By
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President-Finance
&
CFO
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JPMORGAN CHASE BANK, N.A.,
as
Administrative Agent
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By
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/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Managing
Director
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INITIAL
SUBSIDIARY GUARANTORS
NONE.
SUPPLEMENT
NO. __
dated as of [ ], to the Guarantee Agreement dated
as of June 28, 2006 among AMERICAN AXLE & MANUFACTURING, INC., a
Delaware corporation (the “Borrower”), AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC., a Delaware corporation (the “Parent”), the subsidiaries
of the Parent party thereto (each of the Parent and each such subsidiary,
individually, a “Guarantor” and collectively, the “Guarantors”)
and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
A.
Reference
is
made to the Credit Agreement dated as of June 28, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the Parent, the Lenders from time to time
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
B.
Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guarantee Agreement
referred to therein.
C.
The
Guarantors have entered into the Guarantee Agreement in order to induce
the
Lenders to make Loans. Section 4.13 of the Guarantee Agreement provides
that additional Subsidiaries may become Subsidiary Guarantors under
the
Guarantee Agreement by execution and delivery of an instrument in the
form of
this Supplement. The undersigned Subsidiary (the “New Subsidiary”)
is executing this Supplement to become a Subsidiary Guarantor under
the
Guarantee Agreement as consideration for Loans previously made.
Accordingly,
the Administrative Agent and the New Subsidiary agree as follows:
SECTION
1. In
accordance with Section 4.13 of the Guarantee Agreement, the New Subsidiary
by its signature below becomes a Subsidiary Guarantor (and accordingly,
becomes
a Guarantor) under the Guarantee Agreement with the same force and
effect as if
originally named therein as a Subsidiary Guarantor and the New Subsidiary
hereby
agrees to all the terms and provisions of the Guarantee Agreement applicable
to
it as a Subsidiary Guarantor and Guarantor thereunder. Each reference to a
“Guarantor” in the Guarantee Agreement shall be deemed to include the New
Subsidiary. The Guarantee Agreement is hereby incorporated herein by
reference.
SECTION
2. The
New Subsidiary represents and warrants to the Administrative Agent
and the other
Guaranteed Parties that this Supplement has been duly authorized, executed
and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION
3. This
Supplement may be executed in counterparts (and by different parties
hereto on
different counterparts), each of which shall constitute an original,
but all of
which when taken together shall constitute a single contract. This
Supplement
shall become effective when the Administrative Agent shall have received
a
counterpart of this Supplement that bears the signature of the New
Subsidiary
and the Administrative Agent has executed a counterpart hereof. Delivery
of an executed signature page to this Supplement by facsimile transmission
shall
be as effective as delivery of a manually signed counterpart of this
Supplement.
SECTION
4.
Except as expressly supplemented hereby, the Guarantee Agreement shall
remain in
full force and effect.
SECTION
5. THIS
SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF
THE STATE OF NEW YORK.
SECTION
6. In
case any one or more of the provisions contained in this Supplement
should be
held invalid, illegal or unenforceable in any respect, the validity,
legality
and enforceability of the remaining provisions contained herein and
in the
Guarantee Agreement shall not in any way be affected or impaired thereby
(it
being understood that the invalidity of a particular provision in a
particular
jurisdiction shall not in and of itself affect the validity of such
provision in
any other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions
with
valid provisions the economic effect of which comes as close as possible
to that
of the invalid, illegal or unenforceable provisions.
SECTION
7. All
communications and notices hereunder shall be in writing and given
as provided
in Section 9.01 of the Credit Agreement.
SECTION
8. The
New Subsidiary agrees to reimburse the Administrative Agent for its
reasonable
and documented out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of a
single
counsel for the Administrative Agent.
IN
WITNESS WHEREOF,
the New Subsidiary and the Administrative Agent have duly executed
this
Supplement to the Guarantee Agreement as of the day and year first
above
written.
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[Name Of New Subsidiary],
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By
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Name:
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Title:
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XX XXXXXX XXXXX BANK, N.A.,
as
Administrative Agent
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By
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Name:
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Title:
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