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EXHIBIT 10.3
EXECUTION COPY
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$1,000,000,000
REVOLVING CREDIT AND
TERM LOAN AGREEMENT
Dated as of May 4, 1999
among
XXXX CORPORATION,
THE FOREIGN SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
CITICORP USA, INC.
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Syndication Agents,
TORONTO DOMINION (TEXAS), INC.,
as Documentation Agent,
The Other Agents Named in
Schedule IX Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
------------------------------------
CHASE SECURITIES INC.,
as Sole Book Manager and Sole Lead Arranger
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................27
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS................................................................................28
2.1 Revolving Credit Commitments.......................................................................28
2.2 Repayment of Revolving Credit Loans; Evidence of Debt..............................................28
2.3 Procedure for Revolving Credit Borrowing...........................................................29
2.4 Termination or Reduction of Revolving Credit Commitments...........................................29
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans........................................30
SECTION 3. AMOUNT AND TERMS OF TERM LOAN
COMMITMENTS.....................................................................................31
3.1 Term Loan Commitments..............................................................................31
3.2 Repayment of Term Loans; Evidence of Debt..........................................................31
3.3 Procedure for Term Loan Borrowing..................................................................32
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT..................................................................................33
4.1 Multicurrency Commitments..........................................................................33
4.2 Repayment of Multicurrency Loans; Evidence of Debt.................................................33
4.3 Procedure for Multicurrency Borrowing..............................................................34
4.4 Termination or Reduction of Multicurrency Commitments..............................................34
4.5 Redenomination and Alternative Currencies..........................................................34
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS ..............................................................35
5.1 Interest Rates and Payment Dates...................................................................35
5.2 Conversion and Continuation Options................................................................35
5.3 Minimum Amounts of Tranches........................................................................36
5.4 Optional and Mandatory Prepayments.................................................................36
5.5 Commitment Fees; Other Fees........................................................................37
5.6 Computation of Interest and Fees...................................................................38
5.7 Inability to Determine Interest Rate...............................................................39
5.8 Pro Rata Treatment and Payments....................................................................39
5.9 Illegality.........................................................................................42
5.10 Requirements of Law...............................................................................42
5.11 Indemnity.........................................................................................44
5.12 Taxes ...........................................................................................44
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5.13 Assignment of Commitments Under Certain Circumstances.............................................46
5.14 Use of Proceeds...................................................................................47
SECTION 6. REPRESENTATIONS AND WARRANTIES.......................................................................47
6.1 Financial Statements...............................................................................47
6.2 No Change..........................................................................................47
6.3 Corporate Existence; Compliance with Law...........................................................48
6.4 Corporate Power; Authorization; Enforceable Obligations............................................48
6.5 No Legal Bar; Senior Debt..........................................................................49
6.6 No Material Litigation.............................................................................49
6.7 No Default.........................................................................................49
6.8 Ownership of Property; Liens.......................................................................49
6.9 Taxes ...........................................................................................50
6.10 Securities Law, etc. Compliance...................................................................50
6.11 ERISA ...........................................................................................50
6.12 Investment Company Act; Other Regulations.........................................................51
6.13 Subsidiaries, etc. ...............................................................................51
6.14 Accuracy and Completeness of Information..........................................................51
6.15 Security Documents................................................................................52
6.16 Patents, Copyrights, Permits and Trademarks.......................................................52
6.17 Environmental Matters.............................................................................52
6.18 Year 2000 Matters.................................................................................53
SECTION 7. CONDITIONS PRECEDENT.................................................................................54
7.1 Conditions to Closing Date.........................................................................54
7.2 Conditions to Each Loan............................................................................55
SECTION 8. AFFIRMATIVE COVENANTS......................................................................56
8.1 Financial Statements...............................................................................56
8.2 Certificates; Other Information....................................................................57
8.3 Performance of Obligations.........................................................................58
8.4 Conduct of Business, Maintenance of Existence and Compliance with Obligations
and Laws.....................................................................................58
8.5 Maintenance of Property; Insurance.................................................................58
8.6 Inspection of Property; Books and Records; Discussions.............................................58
8.7 Notices ...........................................................................................59
8.8 Maintenance of Liens of the Security Documents.....................................................60
8.9 Environmental Matters..............................................................................60
8.10 Security Documents; Guarantee Supplement..........................................................61
SECTION 9. NEGATIVE COVENANTS...................................................................................62
9.1 Financial Covenants................................................................................63
9.2 Limitation on Indebtedness.........................................................................63
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9.3 Limitation on Liens................................................................................64
9.4 Limitation on Guarantee Obligations................................................................66
9.5 Limitations on Fundamental Changes.................................................................67
9.6 Limitation on Sale of Assets.......................................................................68
9.7 Limitation on Dividends............................................................................69
9.8 Limitation on Subsidiary and Secured Indebtedness..........................................69
9.9 Limitation on Investments, Loans and Advances......................................................70
9.10 Limitation on Optional Payments and Modification of Debt Instruments; Certain
Derivative Transactions....................................................................71
9.11 Transactions with Affiliates......................................................................72
9.12 Corporate Documents...............................................................................72
9.13 Fiscal Year.......................................................................................72
9.14 Limitation on Restrictions Affecting Subsidiaries.................................................72
9.15 Special Purpose Subsidiary........................................................................73
9.16 Interest Rate Agreements..........................................................................73
SECTION 10. GUARANTEE...........................................................................................73
10.1 Guarantee.........................................................................................73
10.2 No Subrogation....................................................................................74
10.3 Amendments, etc. with respect to the Obligations; Waiver of Rights................................74
10.4 Guarantee Absolute and Unconditional..............................................................75
10.5 Reinstatement.....................................................................................76
10.6 Payments..........................................................................................76
SECTION 11. EVENTS OF DEFAULT...................................................................................76
SECTION 12. THE ADMINISTRATIVE AGENT; DOCUMENTATION
AGENT; CO-SYNDICATION AGENTS; THE MANAGING
AGENTS; THE LEAD MANAGERS AND THE CO-AGENTS............................................79
12.1 Appointment.......................................................................................79
12.2 Delegation of Duties..............................................................................80
12.3 Exculpatory Provisions............................................................................80
12.4 Reliance by Administrative Agent..................................................................80
12.5 Notice of Default.................................................................................81
12.6 Non-Reliance on Administrative Agent and Other Lender.............................................81
12.7 Indemnification...................................................................................81
12.8 Administrative Agent in its Individual Capacity...................................................82
12.9 Successor Administrative Agent....................................................................82
12.11 Actions Under Security Documents.................................................................82
12.12 Intercreditor Agreement..........................................................................83
SECTION 13. MISCELLANEOUS.......................................................................................83
13.1 Amendments and Waivers............................................................................83
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13.2 Notices...........................................................................................86
13.3 No Waiver; Cumulative Remedies....................................................................86
13.4 Survival of Representations and Warranties........................................................87
13.5 Payment of Expenses and Taxes.....................................................................87
13.6 Successors and Assigns; Participations and Assignments............................................87
13.7 Adjustments; Set-Off..............................................................................90
13.8 Loan Conversion/Participations....................................................................91
13.10 Counterparts.....................................................................................93
13.11 Severability.....................................................................................93
13.12 Integration......................................................................................93
13.13 GOVERNING LAW....................................................................................93
13.14 Submission to Jurisdiction; Waivers..............................................................93
13.15 Acknowledgement..................................................................................94
13.16 WAIVERS OF JURY TRIAL............................................................................94
13.17 Power of Attorney................................................................................94
13.18 [Reserved].......................................................................................94
13.19 Release of Collateral and Guarantees.............................................................95
13.20 Judgment.........................................................................................95
13.21 Confidentiality..................................................................................96
13.22 Conflicts........................................................................................96
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SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
IV Security Documents
V [Reserved]
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
IX Agents
EXHIBITS:
A Form of Revolving Credit Note
B Form of Term Note
C [Reserved]
D [Reserved]
E [Reserved]
F [Reserved]
G [Reserved]
H [Reserved]
I Form of Joinder Agreement
J [Reserved]
K Form of Assignment and Acceptance
L Form of Opinion of Winston & Xxxxxx
M [Reserved]
N Matters to be Covered by Foreign Subsidiary Opinion
O Form of Subsidiary Guarantee
P Form of Intercreditor Agreement
Q Form of Pledge Agreement
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REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of May 4,
1999 among XXXX CORPORATION, a Delaware corporation (the "U.S. Borrower"), each
FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together with the U.S.
Borrower, the "Borrowers"), the Managing Agents named on Schedule IX hereto (the
"Managing Agents"), the Co-Agents named on Schedule IX hereto (the "Co-Agents"),
the Lead Managers named on Schedule IX hereto (the "Lead Managers"), the several
banks and other financial institutions from time to time parties hereto (the
"Lenders"), CITICORP USA, INC. and XXXXXX XXXXXXX SENIOR FUNDING, INC., as
co-syndication agents (the "Co- Syndication Agents"), TORONTO DOMINION (TEXAS),
INC., as documentation agent (the "Documentation Agent"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (as hereinafter defined, the
"Administrative Agent"), as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the U.S. Borrower is a party to the UT Automotive
Acquisition Agreement (as defined below) pursuant to which the U.S. Borrower (or
a Subsidiary designated by it) will consummate the UT Automotive Acquisition (as
defined below); and
WHEREAS, in order to finance a portion of the purchase price
of the UT Automotive Acquisition, and to finance general corporate purposes of
the U.S. Borrower and its Subsidiaries, the U.S. Borrower has requested the
Lenders to make available the credit facilities described herein, and the
Lenders are willing to make such credit facilities available upon and subject to
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": Revolving Credit Loans or Term Loans, as the case
may be, the rate of interest applicable to which is based upon the
Alternate Base Rate.
"Acquired Indebtedness": Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary
of the U.S. Borrower or assumed in connection with the acquisition of
assets from such Person and not incurred by such
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Person in contemplation of such Person becoming a Subsidiary
of the U.S. Borrower or such acquisition, and any refinancings
thereof.
"Adjusted Aggregate Revolving Outstandings": with respect to
each Lender, the Aggregate Revolving Outstandings of such Lender, plus
the amount of any participating interests purchased by such Lender
pursuant to subsection 13.8, minus the amount of any participating
interests sold by such Lender pursuant to subsection 13.8.
"Administrative Agent": Chase, together with its affiliates,
as arranger of the Commitments and as Administrative Agent for the
Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 12.9.
"Administrative Schedule": Schedule III, which contains
interest rate definitions and administrative information in respect of
each Available Foreign Currency.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly,
is in control of, is controlled by, or is under common control with,
such Person or (b) any other Person who is a director or executive
officer of (i) such Person, (ii) any Subsidiary of such Person (other
than a Wholly Owned Subsidiary) or (iii) any Person described in
clause (a) above. For purposes of this definition, a Person shall be
deemed to be "controlled by" such other Person if such other Person
possesses, directly or indirectly, power either to (A) vote 10% or
more of the securities having ordinary voting power for the election
of directors of such first Person or (B) direct or cause the direction
of the management and policies of such first Person whether by
contract or otherwise.
"Aggregate Available Multicurrency Commitments": as at any
date of determination with respect to all Multicurrency Lenders, an
amount in U.S. Dollars equal to the Available Multicurrency
Commitments of all Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any
date of determination with respect to all Lenders, an amount in U.S.
Dollars equal to the Available Revolving Credit Commitments of all
Lenders on such date.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all the Lenders.
"Aggregate Revolving Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the sum of (a) the aggregate outstanding principal amount of
Revolving Credit Loans of such Lender and (b) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender.
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"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the sum of (a) the Aggregate Revolving Outstandings of such
Lender and (b) the aggregate outstanding principal amount of Term
Loans of such Lender.
"Agreement": this Revolving Credit and Term Loan Agreement, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Agreement Currency": as defined in subsection 13.20(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%.
If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) above, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the U.S. Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the U.S. Prime Rate or the Federal
Funds Effective Rate, respectively.
"Amended and Restated Credit Agreement": the Second Amended
and Restated Credit and Guarantee Agreement, dated as of May 4, 1999,
among the U.S. Borrower, certain of its Foreign Subsidiaries, the
lenders parties thereto, Chase, as general administrative agent, and
others, as the same may be amended, supplemented or otherwise modified
from time to time, and any Refinancing Agreement in respect thereof.
"Applicable Margin": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
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Applicable Margin
- Revolving Credit
Loans and
Applicable Margin Multicurrency
Rating - Term Loans Loans
------ ----------------- ------------------
Rating I .75% .75%
Rating II 1.00% 1.00%
Rating III 1.25% 1.25%
;provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
for the fiscal quarter ending September 30, 1999 pursuant to
subsection 8.1, the Applicable Margins shall be those set forth above
opposite Rating III.
"Assignee": as defined in subsection 13.6(c).
"Available Foreign Currencies": Pounds Sterling, euro, Swedish
Kroner, and any other available and freely-convertible non-U.S. Dollar
currency selected by the U.S. Borrower and approved by the
Administrative Agent and the Majority Multicurrency Lenders in the
manner described in subsection 13.1(b).
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans
required to be made on such date pursuant to subsection 2.5), an
amount in U.S. Dollars equal to the lesser of (a) the excess, if any,
of (i) the amount of such Multicurrency Lender's Multicurrency
Commitment in effect on such date over (ii) the U.S. Dollar Equivalent
of the Aggregate Multicurrency Outstandings of such Multicurrency
Lender on such date and (b) the excess, if any, of (i) the amount of
such Multicurrency Lender's Revolving Credit Commitment in effect on
such date over (ii) the Aggregate Revolving Outstandings of such
Multicurrency Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the
making and payment of any Revolving Credit Loans required to be made
on such date pursuant to subsection 2.5), an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Revolving
Outstandings of such Lender on such date.
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"Benefitted Lender": as defined in subsection 13.7.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of up to an aggregate principal amount of
$1,400,000,000 of senior unsecured debt securities to be issued by the
U.S. Borrower, all or a portion of the proceeds of which will be used
to repay in full the Interim Term Loans outstanding under (and as
defined in) the Interim Term Loan Agreement.
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 3.2 or 4.2 as a date on which a Borrower
requests the Lenders to make Loans hereunder.
"Business Day": (a) when such term is used in respect of a day
on which a Loan in an Available Foreign Currency is to be made, a
payment is to be made in respect of such Loan, an Exchange Rate is to
be set in respect of such Available Foreign Currency or any other
dealing in such Available Foreign Currency is to be carried out
pursuant to this Agreement, such term shall mean a London Banking Day
which is also a day on which banks are open for general banking
business in (x) the city which is the principal financial center of
the country of issuance of such Available Foreign Currency (or, in the
case of Multicurrency Loans in Pounds Sterling, Paris) and (y) in the
case of euro only, Frankfurt am Main, Germany (or such other principal
financial center as the Administrative Agent may from time to time
designate for this purpose), and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to
complying with any applicable requirements set forth in the foregoing
clause (a) is a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close; provided, that when such term is used for the purpose of
determining the date on which the Eurocurrency Rate is determined
under this Agreement for any Multicurrency Loan denominated in euro
for any Interest Period therefor and for purposes of determining the
first and last day of any such Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the Canadian
Government or any agency or
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instrumentality thereof having maturities of not more than twelve
months from the date of acquisition, (b) securities issued or
unconditionally guaranteed or insured by any state of the United
States of America or province of Canada or any agency or
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest
ratings obtainable from either S&P or Xxxxx'x, (c) time deposits,
certificates of deposit and bankers' acceptances having maturities of
not more than twelve months from the date of acquisition, in each case
with any Lender or with any commercial bank organized under the laws
of the United States of America or any state thereof or the District
of Columbia, Japan, Canada or any member of the European Economic
Community or any U.S. branch of a foreign bank having at the date of
acquisition capital and surplus of not less than $100,000,000, (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a), (b) and
(c) entered into with any bank meeting the qualifications specified in
clause (c) above, (e) commercial paper issued by the parent
corporation of any Lender and commercial paper rated, at the time of
acquisition, at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Xxxxx'x and in either case maturing within
twelve months after the date of acquisition, (e) deposits maintained
with money market funds having total assets in excess of $300,000,000,
(f) demand deposit accounts maintained in the ordinary course of
business with banks or trust companies, (g) temporary deposits, of
amounts received in the ordinary course of business pending
disbursement of such amounts, in demand deposit accounts in banks
outside the United States and (h) deposits in mutual funds which
invest substantially all of their assets in preferred equities issued
by U.S. corporations rated at least AA (or the equivalent thereof) by
S&P.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 7.1 shall have been met or waived.
"Co-Agents": as defined on Schedule IX hereto.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": any collateral in which a security interest is
created pursuant to any Security Document.
"Commitment Fee Rate": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
Rating Commitment Fee Rate
------ -------------------
Rating I .175%
Rating II .20%
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Rating III .25%;
provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
for the fiscal quarter ending September 30, 1999 pursuant to
subsection 8.1, the Commitment Fee Rate shall be that set forth above
opposite Rating III.
"Commitments": the collective reference to the Revolving
Credit Commitments, the Multicurrency Commitments and the Term Loan
Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the U.S. Borrower
within the meaning of Section 4001 of ERISA or is part of a group
which includes the U.S. Borrower and which is treated as a single
employer under Section 414 of the Code.
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet
of the U.S. Borrower and its Subsidiaries as at such date, determined
in accordance with GAAP.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the U.S. Borrower and its Subsidiaries which would be
included under indebtedness on a consolidated balance sheet of the
U.S. Borrower and its Subsidiaries as at such date, determined in
accordance with GAAP, less any cash of the U.S. Borrower and its
Subsidiaries as at such date.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated
income statement of the U.S. Borrower and its Subsidiaries for such
period; provided, that Consolidated Interest Expense for any period
shall (a) exclude (i) fees payable in respect of such period under
subsection 5.5 of this Agreement and similar fees payable in respect
of such period under the Other Credit Agreements, and (ii) any
amortization or write-off of deferred financing fees during such
period and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the U.S. Borrower and its
Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with GAAP; provided that (a) any provision for
post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the
"pay as you go" basis, shall not to be taken into account, and (b)
there shall be excluded (i) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the U.S. Borrower or any Subsidiary, (ii) the income
(or deficit) of any Person (other than a Subsidiary) in which the U.S.
Borrower or any Subsidiary has an ownership interest, except to the
extent that any such income has been actually received by the U.S.
Borrower or such Subsidiary in the form of dividends or similar
distributions, (iii) the
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undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any
Contractual Obligation or Requirement of Law (other than (a) prior to
January 1, 2000, any Contractual Obligation or Requirement of Law in
effect on the Closing Date affecting Subsidiaries acquired in the UT
Automotive Acquisition, and (b) any Requirement of Law of Germany)
applicable to such Subsidiary, and (iv) in the case of a successor to
the U.S. Borrower or any Subsidiary by consolidation or merger or as a
transferee of its assets, any earnings of the successor corporation
prior to such consolidation, merger or transfer of assets; provided,
further that the exclusions in clauses (i) and (iv) of this definition
shall not apply to the mergers or consolidations of the U.S. Borrower
or its Subsidiaries with their respective Subsidiaries.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary
gains and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses, (including the
restructuring and related charges in the amount of $133,000,000
recorded by the U.S. Borrower in the fourth quarter of fiscal year
1998), (b) charges, premiums and expenses associated with the
discharge of Indebtedness, (c) charges relating to FAS 106, (d)
license fees (and any write-offs thereof), (e) stock compensation
expense, (f) deferred financing fees (and any write-offs thereof), (g)
write-offs of goodwill, (h) foreign exchange gains and losses, (i)
miscellaneous income and expenses and (j) miscellaneous gains and
losses arising from the sale of assets plus, to the extent deducted in
determining Consolidated Net Income, the excess of (i) the sum of (A)
Consolidated Interest Expense, (B) any expenses for taxes, (C)
depreciation and amortization expense and (D) minority interests in
income of Subsidiaries over (ii) net equity earnings in Affiliates
(excluding Subsidiaries). For purposes of calculating the ratio set
forth in subsection 9.1(b), Consolidated Operating Profit for any
fiscal period shall in any event include the Consolidated Operating
Profit for such fiscal period of any entity acquired by the U.S.
Borrower or any of its Subsidiaries during such period; and for
purposes of calculating the ratio set forth in subsections 9.1(a) and
13.19 for the periods of four consecutive fiscal quarters ending on or
about 6/30/99, 9/30/99, 12/31/99 and 3/31/00, Consolidated Operating
Profit shall include the Consolidated Operating Profit during such
periods of the entities acquired by the U.S. Borrower in the UT
Automotive Acquisition.
"Consolidated Revenues": for any fiscal period, the
consolidated revenues of the U.S. Borrower and its Subsidiaries for
such period, determined in accordance with GAAP.
"Continuing Directors": the directors of the U.S. Borrower on
the Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the U.S. Borrower
is recommended by a majority of the then Continuing Directors.
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9
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under Section 11(i) has occurred or (b) the Commitments shall
have been terminated prior to the Revolving Credit Termination Date
and/or the Loans shall have been declared immediately due and payable,
in either case pursuant to Section 11.
"Conversion Sharing Percentage": on any date with respect to
any Lender and any Multicurrency Loans of such Lender outstanding in
any currency other than U.S. Dollars, the percentage of such
Multicurrency Loans such that, after giving effect to the conversion
of such Multicurrency Loans to U.S. Dollars and the purchase and sale
by such Lender of participating interests as contemplated by
subsection 13.8, the Revolving Outstandings Percentage of such Lender
will equal such Lender's Revolving Credit Commitment Percentage on
such date (calculated immediately prior to giving effect to any
termination or expiration of the Revolving Credit Commitments on the
Conversion Date).
"Converted Loans": as defined in subsection 13.8(a).
"Co-Syndication Agents": as defined in the preamble hereto.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement designed to protect the U.S.
Borrower or any Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the U.S.
Borrower or any Subsidiary to any financial institution under any one
or more Currency Agreements.
"Default": any of the events specified in Section 11, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
"Domestic Loan Party": each Loan Party that is organized under
the laws of any jurisdiction of the United States.
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10
"Domestic Pledge Agreements": the collective reference to all
Pledge Agreements pursuant to which the Capital Stock of any Domestic
Subsidiary is pledged.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"EMU": Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU Legislation": legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one
or more member states.
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any Environmental
Laws or legal liability resulting from air emissions, water
discharges, noise emissions, Hazardous Material or any other
environmental, health or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority and any and all common law requirements, rules
and bases of liability regulating, relating to or imposing liability
or standards of conduct concerning pollution or protection of the
environment or the Release or threatened Release of Hazardous
Materials, as now or hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"euro": the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation.
"Eurocurrency Liabilities": at any time, the aggregate of the
rates (expressed as a decimal fraction) of any reserve requirements in
effect at such time (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period
pertaining to a Multicurrency Loan, the Eurocurrency Rate determined
for such Interest Period and the Available Foreign Currency in which
such Multicurrency Loan is denominated in the manner set forth in the
Administrative Schedule.
"Eurodollar Loans": Revolving Credit Loans or Term Loans, as
the case may be, the rate of interest applicable to which is based
upon the Eurodollar Rate.
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11
"Eurodollar Rate": with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Administrative Agent by each of the U.S.
Reference Lenders as the rate at which such U.S. Reference Lender is
offered Dollar deposits at or about 10:00 a.m., New York City time,
two Business Days prior to the beginning of such Interest Period,
(a) in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect
of its Eurodollar Loans then are being conducted,
(b) for delivery on the first day of such Interest
Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"euro unit": the currency unit of the euro as defined in the
EMU Legislation.
"Event of Default": any of the events specified in Section 11,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Exchange Rate": with respect to any non-U.S. Dollar currency
on any date, the rate at which such currency may be exchanged into
U.S. Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In
the event that such rate does not appear on any Reuters currency page,
the "Exchange Rate" with respect to such non-U.S. Dollar currency
shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the U.S. Borrower or, in the absence of such
agreement, such "Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its
foreign currency exchange operations in respect of such non-U.S.
Dollar currency are then being conducted, at or about 10:00 A.M.,
local time, on such date for the purchase of U.S. Dollars with such
non-U.S. Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such spot
rate can reasonably be quoted, the Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business
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12
Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a
consolidated balance sheet of the U.S. Borrower and its Subsidiaries
and (b) any other such lease to the extent that the then present value
of the minimum rental commitment thereunder should, in accordance with
GAAP, be capitalized on a balance sheet of the lessee.
"First Lender": as defined in subsection 13.8(c).
"Foreign Subsidiaries": each of the Subsidiaries so designated
on Schedule VI and any Subsidiaries organized outside the United
States which are created after the effectiveness hereof.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time
to time in accordance with subsection 13.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agent and the
Lenders covering the matters set forth on Exhibit N, with such
assumptions, qualifications and deviations therefrom as the
Administrative Agent shall approve (such approval not to be
unreasonably withheld).
"Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any
Loans made on such date pursuant to subsection 2.5), with respect to
any Lender, that percentage which the Available Revolving Credit
Commitment of such Lender then constitutes of the Aggregate Available
Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent (a) to purchase any such
primary obligation or
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13
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure
or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the
value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made (unless such Guarantee Obligation shall be
expressly limited to a lesser amount, in which case such lesser amount
shall apply) or, if not stated or determinable, the value as of any
date of determination of the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.
"Guarantor Supplement": a supplement to the Subsidiary
Guarantee, substantially in the form of Annex A to the Subsidiary
Guarantee, whereby a Subsidiary of the U.S. Borrower becomes a
"Guarantor" under the Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, petroleum or petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea-formaldehyde insulation, and any
other substance the presence of which may give rise to liability under
any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor, (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face amount
of all letters of credit issued for the account of such person and,
without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or
interest) of such Person in respect of acceptances or similar
obligations issued or created for the account of such Person; but
excluding (i) trade and other accounts payable in the ordinary course
of business in accordance with customary trade terms and which are not
overdue for more than 120 days or, if overdue for more than 120 days,
as to which a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of such Person, (ii) deferred
compensation obligations to employees and (iii) any obligations
otherwise constituting Indebtedness the payment of which such Person
has provided for pursuant to the terms of such Indebtedness or any
agreement or instrument pursuant to which such Indebtedness was
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14
incurred, by the irrevocable deposit in trust of an amount of funds or
a principal amount of securities, which deposit is sufficient, either
by itself or taking into account the accrual of interest thereon, to
pay the principal of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the U.S. Borrower or its Subsidiaries and in
respect of which the U.S. Borrower or its Subsidiaries will be the
source of repayment.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement,
substantially in the form of Exhibit P, to be entered into pursuant to
subsection 13.9, as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan
is outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan
having an Interest Period of three months or less, the last day of
such Interest Period and (c) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period longer than three months,
(i) each day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and (ii) the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three or six months
thereafter, and if deposits in the relevant currency for such longer
Interest Periods are available to all relevant Lenders (as determined
by such Lenders), nine or twelve months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months
thereafter, and if deposits in the relevant currency for such longer
Interest Periods are available to all relevant Lenders (as determined
by such Lenders), nine or twelve months thereafter, as selected by the
relevant Borrower by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
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15
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar
Loan or Multicurrency Loan that would otherwise extend beyond
the Revolving Credit Termination Date or Term Loan Maturity
Date, as the case may be, shall end on the Revolving Credit
Termination Date or Term Loan Maturity Date, as the case may
be; and
(iii) any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement
(other than any interest rate cap or other similar agreement or
arrangement pursuant to which the U.S. Borrower has no credit
exposure), to or under which the U.S. Borrower or any of its
Subsidiaries is a party or a beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
U.S. Borrower or any Subsidiary to any financial institution under any
one or more Interest Rate Agreements.
"Interim Term Loan Agreement": the Interim Term Loan
Agreement, dated as of May 4, 1999, among the U.S. Borrower, the
lenders parties thereto, Chase, as administrative agent, and others,
as the same may be amended, supplemented or otherwise modified from
time to time, and any Refinancing Agreement in respect thereof.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the U.S. Borrower's senior long-term
unsecured debt is at or above BBB- from S&P and at or above Baa3 from
Moody's; if either of S&P or Xxxxx'x shall change its system of
classifications after the date of this Agreement, Investment Grade
Status shall exist at any time when the actual or implied rating of
the U.S. Borrower's senior long-term unsecured debt is at or above the
new rating which most closely corresponds to the above-specified level
under the previous rating system.
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"Judgment Currency": as defined in subsection 13.19(b).
"Lead Managers": as defined on Schedule IX hereto.
"Xxxx Germany": Xxxx Corporation Beteiligungs GmbH.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date
without compliance with subsection 13.6(c).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement or
any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes and the Security Documents.
"Loan Parties": the collective reference to the Borrowers,
each guarantor or grantor party to any Security Document and each
issuer of pledged stock under each Pledge Agreement.
"Loans": the collective reference to the Revolving Credit
Loans, the Term Loans and the Multicurrency Loans.
"Loans to be Converted": as defined in subsection 13.8(a).
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders holding in the aggregate
more than 50% of the aggregate amount of the Revolving Credit
Commitments and the aggregate outstanding principal amount of Term
Loans; and (b) at any time after the termination of the Revolving
Credit Commitments, Lenders whose Aggregate Total Outstandings
aggregate more than 50% of the Aggregate Total Outstandings of all
Lenders; provided that for purposes of this definition the Aggregate
Total Outstandings of each Lender shall be adjusted up or down so as
to give effect to any participations purchased or sold pursuant to
subsection 13.8.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders whose Multicurrency Commitment Percentages aggregate more than
50%.
"Majority Revolving Credit Lenders": at any time, Lenders
whose Revolving Credit Commitment Percentages aggregate more than 50%.
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17
"Majority Term Loan Lenders " : at any time, Lenders holding
more than 50% of the aggregate outstanding principal amount of Term
Loans.
"Managing Agents": as defined on Schedule IX hereto.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the U.S.
Borrower accounted for more than 10% of Consolidated Revenues or (b)
as of the end of such fiscal year, was the owner of more than 10% of
Consolidated Assets, all as shown on the consolidated financial
statements of the U.S. Borrower for such fiscal year.
"Moody's": Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Multicurrency Commitment": as to any Multicurrency Lender at
any time, its obligation to make Multicurrency Loans to the U.S.
Borrower or Foreign Subsidiary Borrowers in an aggregate amount in
Available Foreign Currencies of which the U.S. Dollar Equivalent does
not exceed at any time outstanding the lesser of (a) the amount set
forth opposite such Multicurrency Lender's name in Schedule I under
the heading "Multicurrency Commitment", and (b) the Revolving Credit
Commitment of such Multicurrency Lender, in each case as such amount
may be reduced from time to time as provided in subsection 4.4 and the
other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment then constitutes of the aggregate
Multicurrency Commitments (or, if the Multicurrency Commitments have
terminated or expired, the percentage which (a) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender at such time constitutes of (b) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of all
Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having a Multicurrency
Commitment or holding Multicurrency Loans.
"Multicurrency Loans": as defined in subsection 4.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA .
"National Currency Unit": the unit of currency (other than a
euro unit) of a Participating Member State.
"Net Proceeds ": shall mean the gross proceeds received by the
U.S. Borrower or any Subsidiary from a sale or other disposition of
any asset of the U.S. Borrower or such Subsidiary less (a) all
reasonable fees, commissions and other out-of-pocket expenses incurred
by the U.S. Borrower or such Subsidiary in connection therewith, (b)
Federal,
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state, local and foreign taxes assessed in connection therewith and
(c) the principal amount, accrued interest and any related prepayment
fees of any Indebtedness (other than the Loans) which is secured by
any such asset and which is required to be repaid in connection with
the sale thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as
of July 1, 1996, between the U.S. Borrower and The Bank of New York,
as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 14.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of
the U.S. Borrower due 2006, issued pursuant to the 9 1/2% Subordinated
Note Indenture.
"Non-Multicurrency Lender": each Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to the Revolving Credit
Notes and the Term Notes.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower
on its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Borrowing in
respect of the currency of such Loan in the Administrative Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower
on its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Continuation in
respect of the currency of such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and
interest on the Loans, Interest Rate Agreement Obligations to any
Lender, Currency Agreement Obligations to any Lender and all other
obligations and liabilities of (a) the U.S. Borrower under or in
connection with this Agreement (including, without limitation, the
obligations under Section 10 hereof) and the other Loan Documents and
(b) each Foreign Subsidiary Borrower under this Agreement and the
other Loan Documents (including, without limitation, interest accruing
at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest
accruing at the then applicable rate provided in this Agreement or any
other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the U.S. Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, the Notes,
the other Loan Documents or any other document made,
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delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by
any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Other Credit Agreements": the collective reference to the
Amended and Restated Credit Agreement and the Interim Term Loan
Agreement.
"Other Lender": as defined in subsection 13.8(c).
"Participants": as defined in subsection 13.6(b).
"Participating Member State": any member state of the EMU
which has the euro as its lawful currency.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the U.S. Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or
similar agreement that may be delivered to the Administrative Agent as
collateral security for any or all of the Obligations of the U.S.
Borrower hereunder, and the obligations of the U.S. Borrower under the
Other Credit Agreements, in each case as such Pledge Agreements or
similar agreements may be amended, supplemented or otherwise modified
from time to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Property": each parcel of real property owned or operated by
the U.S. Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 6.16.
"Quotation Day": in respect of the determination of the
Eurocurrency Rate for any Interest Period for Multicurrency Loans in
any Available Foreign Currency, the day on which quotations would
ordinarily be given by prime banks in the London interbank
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market (or, if such Available Foreign Currency is Pounds Sterling, in
the Paris interbank market) for deposits in such Available Foreign
Currency for delivery on the first day of such Interest Period;
provided, that if quotations would ordinarily be given on more than
one date, the Quotation Day for such Interest Period shall be the last
of such dates. On the date hereof, the Quotation Day in respect of any
Interest Period for any Available Foreign Currency (other than the
euro) is customarily the last London Banking Day prior to the
beginning of such Interest Period which is (a) at least two London
Banking Days prior to the beginning of such Interest Period and (b) a
day on which banks are open for general banking business in the city
which is the principal financial center of the country of issue of
such Available Foreign Currency (and, in the case of Pounds Sterling,
in Paris); and the Quotation Day in respect of any Interest Period for
the euro is the day which is two Target Operating Days prior to the
first day of such Interest Period.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to
time.
"Rating Agencies": collectively, S&P and Xxxxx'x.
"Rating Category": each of Rating I, Rating II and Rating
III.
"Rating I, Rating II and Rating III": the respective Ratings
set forth below:
Rating
------
Category S&P Xxxxx'x
-------- --- -------
Rating I greater than or greater than or
equal to BBB equal to Baa2
Rating II BBB- Baa3
Rating III lower than or equal lower than or equal
to BB+ to Ba1
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, the Rating Category of the
higher of such Ratings shall be applicable for such day, (ii) if on
any day the Rating of only one of the Rating Agencies is available,
then the Rating Category of such Rating shall be applicable for such
day and (iii) if on any day a Rating is available from neither of the
Rating Agencies, then Rating III shall be applicable for such day. Any
change in the applicable Rating Category resulting from a change in
the Rating of a Rating Agency shall become effective on the date such
change is publicly announced by such Rating Agency.
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"Receivable Financing Transaction": any transaction or series
of transactions involving a sale for cash of accounts receivable,
without recourse based upon the collectibility of the receivables
sold, by the U.S. Borrower or any of its Subsidiaries to a Special
Purpose Subsidiary and a subsequent sale or pledge of such accounts
receivable (or an interest therein) by such Special Purpose
Subsidiary, in each case without any guarantee by the U.S. Borrower or
any of its Subsidiaries (other than the Special Purpose Subsidiary).
"Refinancing Agreement": with respect to the Interim Term Loan
Agreement or the Amended and Restated Credit Agreement, as the case
may be, a successor agreement satisfying the following criteria: (a)
such successor agreement refinances in whole, and replaces the
commitments under, the Interim Term Loan Agreement or the Amended and
Restated Credit Agreement, as the case may be, (b) either (i) the
covenants, representations and warranties and events of default set
forth in such successor agreement shall be equivalent to the
corresponding provisions set forth in the Interim Term Loan Agreement
or the Amended and Restated Credit Agreement, as the case may be, or
(ii) to the extent such provisions are more restrictive on the
Borrower and its Subsidiaries than the provisions of this Agreement,
the U.S. Borrower shall, contemporaneously with entering into such
Refinancing Agreement, enter into with the Administrative Agent an
amendment to this Agreement reasonably satisfactory to the
Administrative Agent pursuant to which such more restrictive
provisions shall be incorporated herein (the Lenders hereby
authorizing the Administrative Agent to enter into such amendment),
(c) such successor agreement shall not be guaranteed by any Person
other than the Subsidiary Guarantors pursuant to the Subsidiary
Guarantee and, if applicable, the Borrower and shall not be secured
except pursuant to the Security Documents and (d) the lenders under
such successor agreement (or an agent for such lenders) shall have
entered into an intercreditor agreement with the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative
Agent, which shall, in any event, contain customary indemnities,
liability limitations, exculpation provisions and other customary
protective provisions in favor of the Administrative Agent, in its
capacity as Agent under (and as defined in) the Subsidiary Guarantee
and the Security Documents, substantially equivalent to those set
forth in the corresponding provisions of the Interim Term Loan
Agreement or the Amended and Restated Credit Agreement, as the case
may be.
"Register": as defined in subsection 13.6(d).
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaking, dumping,
disposing, spreading, depositing or dispersing of any Hazardous
Materials in, unto or onto the environment.
"Release Status": shall exist at any time when the actual or
implied rating of the U.S. Borrower's senior long-term unsecured debt
is at or above BBB- from S&P or at or above Baa3 from Moody's; if
either of S&P or Moody's shall change its system of classifications
after the date of this Agreement Release Status shall exist at any
time
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when the actual or implied rating of the U.S. Borrower's senior
long-term unsecured debt is at or above the new rating which most
closely corresponds to the above-specified level under the previous
rating system.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under any of subsections .13, .14, .16, .18,
.19 or .20 of PBGC Reg. ss. 4043 or any successor regulation thereto.
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, and (b) any
property, any law, treaty, rule, regulation, requirement, judgment,
decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject,
including, without limitation, any Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Revolving Credit Commitment": as to any Lender at any time,
its obligation to make Revolving Credit Loans to the U.S. Borrower in
an aggregate amount not to exceed at any time outstanding the U.S.
Dollar amount set forth opposite such Lender's name in Schedule I
under the heading "Revolving Credit Commitment", as such amount may be
reduced from time to time pursuant to subsection 2.4 and the other
applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the aggregate Revolving Credit
Commitments of all Lenders (or, if the Revolving Credit Commitments
have terminated or expired, the percentage which (a) the Aggregate
Revolving Outstandings of such Lender at such time then constitutes of
(b) the Aggregate Revolving Outstandings of all Lenders at such time).
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Termination Date, or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
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"Revolving Credit Lender": each Lender having an amount
greater than zero set forth under the heading "Revolving Credit
Commitment" opposite its name on Schedule I.
"Revolving Credit Lenders": Lenders listed in Part A of
Schedule I hereto.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2(e).
"Revolving Credit Termination Date": May 4, 2004.
"Revolving Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Revolving
Outstandings of such Lender constitutes of the Adjusted Aggregate
Revolving Outstandings of all Lenders.
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee and each other guarantee,
security document or similar agreement that may be delivered to the
Administrative Agent as collateral security for any or all of the
Obligations, in each case as amended, supplemented or otherwise
modified from time to time, including, without limitation, to give
effect to any Refinancing Agreement permitted hereunder.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor
thereto.
"Special Affiliate": any Affiliate of the U.S. Borrower (a) as
to which the U.S. Borrower holds, directly or indirectly, (i) power to
vote 20% or more of the securities having ordinary voting power for
the election of directors of such Affiliate or (ii) a 20% ownership
interest in such Affiliate and (b) which is engaged in business of the
same or related general type as now being conducted by the U.S.
Borrower and its Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the U.S.
Borrower and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of
the U.S. Borrower created by the U.S. Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
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"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the
Subordinated Notes and the 9 1/2% Subordinated Notes.
"Subordinated Debt Indentures": the collective reference to
the Subordinated Note Indenture and the 9 1/2% Subordinated Note
Indenture.
"Subordinated Note Indenture": the Indenture, dated as of
February 1, 1994, between the U.S. Borrower and State Street Bank and
Trust Company (as successor to The First National Bank of Boston), as
trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 9.10.
"Subordinated Notes": the 8 1/4% Subordinated Notes of the
U.S. Borrower due 2002, issued pursuant to the Subordinated Note
Indenture.
"Subsequent Participant": any member state of the EMU that
adopts the euro as its lawful currency after January 1, 1999.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both,
by such Person (exclusive of any Affiliate in which such Person has a
minority ownership interest). Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the U.S. Borrower.
"Subsidiary and Secured Indebtedness ": the collective
reference (without duplication) to (a) any Indebtedness of any
Subsidiary, other than Indebtedness permitted by paragraphs (a)
through (e) of subsection 9.2, (b) any Guarantee Obligation of any
Subsidiary, other than Guarantee Obligations permitted by paragraphs
(a) through (e) of subsection 9.4, (c) any Indebtedness or Guarantee
Obligation of any Person that is secured by any Lien on any property,
assets or revenues of the U.S. Borrower or any of its Subsidiaries,
other than Liens permitted by paragraphs (a) through (n) of subsection
9.3. For purposes of clause (b) of the preceding sentence, the amount
of any Guarantee Obligation shall be determined as set forth in the
definition of "Guarantee Obligation" in this subsection 1.1; and for
purposes of clause (c) of the preceding sentence, the amount of any
Indebtedness or Guarantee Obligation that is secured by a Lien on any
property, assets or revenues of the U.S. Borrower or any of its
Subsidiaries shall equal the lesser of (x) the amount of any such
Indebtedness or Guarantee Obligation and (y) the fair market value as
of the date of determination of the property, assets or revenues
subject to such Lien. At any time of determination, the amount of
Subsidiary and Secured Indebtedness
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25
outstanding shall be determined without duplication of any other
Subsidiary and Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
the date hereof, made by certain Subsidiaries of the U.S. Borrower in
favor of the Administrative Agent, substantially in the form of
Exhibit O, as the same may be amended, supplemented or otherwise
modified from time to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor
party to the Subsidiary Guarantee, so long as the Subsidiary Guarantee
remains in effect.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined
by the Administrative Agent).
"Taxes": as defined in subsection 5.12(a).
"Term Loan": as defined in subsection 3.1.
"Term Loan Commitment": as to any Lender at any time, its
obligation to make a Term Loan to the U.S. Borrower in a principal
amount not to exceed the amount set forth opposite such Lender's name
in Schedule I.
"Term Loan Lender": each Lender having a Term Loan Commitment
or holding Term Loans.
"Term Loan Maturity Date": May 4, 2004.
"Term Note": as defined in subsection 3.2(e).
"Tranche": the collective reference to Revolving Credit Loans
or Term Loans, as the case may be, that are Eurodollar Loans, or
Multicurrency Loans, the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day).
"Transferee": as defined in subsection 13.6(f).
"Treaty on European Union": the Treaty of Rome of March 25,
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
"Type": as to any Revolving Credit Loan or Term Loan, as the
case may be, its nature as an ABR Loan or a Eurodollar Loan.
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26
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Dollar Equivalent": with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in
U.S. Dollars of such amount determined at the Exchange Rate on the
date of determination of such equivalent. In making any determination
of the U.S. Dollar Equivalent for purposes of calculating the amount
of Loans to be borrowed from the respective Lenders on any Borrowing
Date, the Administrative Agent shall use the relevant Exchange Rate in
effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other
Loan Documents.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City. The U.S.
Prime Rate is not intended to be the lowest rate of interest charged
by the Administrative Agent in connection with extensions of credit to
borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"UT Automotive Acquisition": the acquisition by the U.S.
Borrower (or a Subsidiary as its designee) of the capital stock of
Xxxx Corporation Automotive Holdings, a Delaware corporation formerly
known as UT Automotive, Inc., and certain related entities, pursuant
to the UT Automotive Acquisition Agreement.
"UT Automotive Acquisition Agreement": the Stock Purchase
Agreement, dated as of March 16, 1999, between Nevada Bond Investment
Corp. II, a Nevada corporation, as Seller, and the U.S. Borrower (or a
Subsidiary as its designee), as Buyer, as amended, supplemented or
otherwise modified, and certain related agreements.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or
other entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by
such Person; provided, however, that so long as the U.S. Borrower
owns, directly or indirectly, more than 95% of the capital stock of
Xxxx Italia, Xxxx Italia shall be deemed a Wholly Owned Subsidiary of
the U.S. Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms
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relating to the U.S. Borrower and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in U.S. Dollars to the U.S. Borrower from time
to time during the Revolving Credit Commitment Period so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Revolving Outstandings of
all Revolving Credit Lenders do not exceed the Aggregate Revolving Credit
Commitments. During the Revolving Credit Commitment Period the U.S. Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 5.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.
2.2 Repayment of Revolving Credit Loans; Evidence of Debt. (a)
The U.S. Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Revolving Credit Commitments) on the Revolving
Credit Termination Date and on such other date(s) and in such other amounts as
may be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Revolving Credit Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such Lender resulting from each
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Revolving Credit Loan of such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of each Revolving Credit Loan
made hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the date of each continuation thereof pursuant to subsection 5.2, (iii) the
date of each conversion of all or a portion thereof to another Type pursuant to
subsection 5.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each Lender
hereunder in respect of the Revolving Credit Loans and (v) both the date and
amount of any sum received by the Administrative Agent hereunder from the U.S.
Borrower in respect of the Revolving Credit Loans and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the U.S. Borrower to repay (with applicable interest) the
Revolving Credit Loans made to the U.S. Borrower by such Lender in accordance
with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (each, a "Revolving
Credit Note"); provided, that the delivery of such Revolving Credit Notes shall
not be a condition precedent to the Closing Date.
2.3 Procedure for Revolving Credit Borrowing. The U.S.
Borrower may borrow under the Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the U.S. Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) at least three Business Days prior to the requested Borrowing Date, if all
or any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans, (b) on the Closing Date, in the case of ABR Loans borrowed on
the Closing Date, or (c) at least one Business Day prior to the requested
Borrowing Date, otherwise), specifying in each case (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Period therefor. Each
borrowing under the Revolving Credit Commitments (other than a borrowing under
subsection 2.5) shall be in an amount equal to (A) in the case of ABR Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
Aggregate Available Revolving Credit Commitments are less than $10,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of
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$1,000,000 in excess thereof. Upon receipt of any such notice from the U.S.
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Not later than 12:00 Noon, New York City time, on each requested Borrowing Date
each Lender shall make an amount equal to its Funding Commitment Percentage of
the principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent at its office specified in
subsection 13.2 in U.S. Dollars and in immediately available funds. Except as
otherwise provided in subsection 2.5, the Administrative Agent shall on such
date credit the account of the U.S. Borrower on the books of such office with
the aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments.
The U.S. Borrower shall have the right, upon not less than five Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, the Available Revolving Credit Commitment or Available
Multicurrency Commitment of any Lender would not be greater than or equal to
zero. Any such reduction shall be in an amount equal to $2,500,000 or a whole
multiple of $500,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Borrowings of Revolving Credit Loans and Refunding of
Loans. (a) If on any Borrowing Date on which a Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the principal amount of the Requested Multicurrency Loans to be
made by any Multicurrency Lender exceeds the Available Multicurrency Commitment
of such Multicurrency Lender on such Borrowing Date (before giving effect to the
making and payment of any Loans required to be made pursuant to this subsection
2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent of the amount of
such excess is less than or equal to the Aggregate Available Revolving Credit
Commitments of all Non-Multicurrency Lenders (before giving effect to the making
and payment of any Loans pursuant to this subsection 2.5 on such Borrowing
Date), each Non-Multicurrency Lender shall make a Revolving Credit Loan to the
U.S. Borrower on such Borrowing Date, and the proceeds of such Revolving Credit
Loans shall be simultaneously applied to repay outstanding Revolving Credit
Loans and/or Multicurrency Loans of the Multicurrency Lenders (as directed by
the U.S. Borrower) in each case in amounts such that, after giving effect to (1)
such borrowings and repayments and (2) the borrowing from the Multicurrency
Lenders of the Requested Multicurrency Loans, the Revolving Outstandings
Percentage of each Lender will equal (as nearly as possible) its Revolving
Credit Commitment Percentage. To effect such borrowings and repayments, (x) not
later than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds
of such Revolving Credit Loans shall be made available by each Non-Multicurrency
Lender to the Administrative Agent at its office specified in subsection 13.2 in
U.S. Dollars and in immediately available funds and the Administrative Agent
shall apply the proceeds of such Revolving Credit Loans toward repayment of
outstanding Revolving Credit Loans and/or Multicurrency Loans of the
Multicurrency Lenders (as directed by the U.S. Borrower) and (y) concurrently
with the repayment of such Loans on such Borrowing Date, (I) the Multicurrency
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Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Multicurrency Loans in an aggregate amount equal to the amount so
requested by such Borrower (but not in any event greater than the Aggregate
Available Multicurrency Commitments after giving effect to the making of such
repayment of any Loans on such Borrowing Date) and (II) the relevant Borrower
shall pay to the Administrative Agent for the account of the Lenders whose Loans
to such Borrower are repaid on such Borrowing Date pursuant to this subsection
2.5 all interest accrued on the amounts repaid to the date of repayment,
together with any amounts payable pursuant to subsection 5.11 in connection with
such repayment.
(b) If any borrowing of Revolving Credit Loans is required
pursuant to this subsection 2.5, the U.S. Borrower shall notify the
Administrative Agent in the manner provided for Revolving Credit Loans in
subsection 2.3, except that the minimum borrowing amounts and threshold
multiples in excess thereof applicable to ABR Loans set forth in subsection 2.3
shall not be applicable to the extent that such minimum borrowing amounts exceed
the amounts of Revolving Credit Loans required to be made pursuant to this
subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF TERM LOAN
COMMITMENTS
3.1 Term Loan Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make a term loan (each, a
"Term Loan") in U.S. Dollars to the U.S. Borrower on the Closing Date in a
principal amount not exceeding the Term Loan Commitment of such Lender.
(b) The Term Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsections
3.3 and 5.2.
3.2 Repayment of Term Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Term Loan of
such Lender in installments payable on the dates set forth below, with each such
installment being in the aggregate principal amount for all Term Loan Lenders
set forth opposite such date below (and on such other date(s) and in such other
amounts as may be required from time to time pursuant to this Agreement).
Installment Date Aggregate Principal Amount
---------------- --------------------------
October 31, 2000 $50,000,000
April 30, 2001 $50,000,000
October 31, 2001 $50,000,000
April 30, 2002 $50,000,000
October 31, 2002 $75,000,000
April 30, 2003 $75,000,000
October 31, 2003 $75,000,000
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April 30, 2004 $75,000,000
The U.S. Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Term Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such Lender resulting from the Term Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of the Term Loan of each Lender
made hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the date of each continuation thereof pursuant to subsection 5.2, (iii) the
date of each conversion of all or a portion thereof to another Type pursuant to
subsection 5.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each Lender
hereunder in respect of the Term Loans and (v) both the date and amount of any
sum received by the Administrative Agent hereunder from the U.S. Borrower in
respect of the Term Loans and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the U.S. Borrower to repay (with applicable interest) the Term
Loan made to the U.S. Borrower by such Lender in accordance with the terms of
this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Term Loan
of such Lender, substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (each, a "Term Note"); provided, that
the delivery of such Term Notes shall not be a condition precedent to the
Closing Date.
3.3 Procedure for Term Loan Borrowing. The U.S. Borrower may
borrow the Term Loans on the Closing Date, provided that the U.S. Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) at
least three Business Days prior to the Closing Date, if all or any part of the
Term Loans are to be initially Eurodollar Loans, or (b) on the Closing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
anticipated Closing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Upon receipt of any such notice
from the U.S. Borrower, the Administrative Agent shall promptly notify each
Lender
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thereof. Not later than 1:30 p.m., New York City time, on the Closing Date each
Lender shall make an amount equal to the principal amount of the Term Loan to be
made by it available to the Administrative Agent at its office specified in
subsection 13.2 in U.S. Dollars and in immediately available funds. The
Administrative Agent shall on such date credit the account of the U.S. Borrower
on the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
4.1 Multicurrency Commitments. Subject to the terms and
conditions hereof, each Multicurrency Lender severally agrees to make revolving
credit loans (each, a "Multicurrency Loan") in any Available Foreign Currency to
the U.S. Borrower or any Foreign Subsidiary Borrower from time to time during
the Revolving Credit Commitment Period so long as after giving effect thereto
(a) the Available Multicurrency Commitment of such Multicurrency Lender is
greater than or equal to zero, (b) the aggregate outstanding principal amount of
Multicurrency Loans does not exceed an amount of which the U.S. Dollar
Equivalent is $165,000,000 and (c) the Aggregate Revolving Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. During the
Revolving Credit Commitment Period, the U.S. Borrower and Foreign Subsidiary
Borrowers may use the Multicurrency Commitments by borrowing, repaying the
Multicurrency Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
4.2 Repayment of Multicurrency Loans; Evidence of Debt. (a)
Each of the U.S. Borrower and each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multicurrency Lender the then unpaid principal amount of each Multicurrency
Loan of such Multicurrency Lender to such Borrower on the Revolving Credit
Termination Date and on such other date(s) and in such other amounts as may be
required from time to time pursuant to this Agreement. Each of the U.S. Borrower
and each Foreign Subsidiary Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Multicurrency Loans advanced to it and from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in subsection 5.1.
(b) Each Multicurrency Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of each
Borrower to such Multicurrency Lender resulting from each Multicurrency Loan of
such Multicurrency Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Multicurrency Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the date and amount of each Multicurrency
Loan made hereunder, (ii) the date and amount of any principal or interest due
and payable or to become due and payable from each Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the date and
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amount of any sum received by the Administrative Agent hereunder from each
Borrower in respect of the Multicurrency Loans and each Multicurrency Lender's
share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 4.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Multicurrency Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Multicurrency Loans made to such Borrower by such Multicurrency
Lender in accordance with the terms of this Agreement.
4.3 Procedure for Multicurrency Borrowing. The U.S. Borrower
or any Foreign Subsidiary Borrower may request the Multicurrency Lenders to make
Multicurrency Loans during the Revolving Credit Commitment Period on any
Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency of which the U.S. Dollar Equivalent is equal to at
least $10,000,000 (or, if the then Aggregate Available Multicurrency Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such Notice
of Multicurrency Borrowing from any Borrower, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. Not later than the funding
time for the relevant Available Foreign Currency set forth in the Administrative
Schedule each Multicurrency Lender shall make an amount equal to its
Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the funding office for the relevant Available Foreign
Currency set forth in the Administrative Schedule in the relevant Available
Foreign Currency and in immediately available funds. The amounts made available
by each Multicurrency Lender will then be made available on such Borrowing Date
to the relevant Borrower at the funding office for the relevant Available
Foreign Currency set forth in the Administrative Schedule and in like funds as
received by the Administrative Agent.
4.4 Termination or Reduction of Multicurrency Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Multicurrency Commitments
or, from time to time, to reduce the amount of the Multicurrency Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on the effective
date thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Multicurrency Commitments then in effect.
4.5 Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a Subsequent Participant state shall be
redenominated into the euro unit in accordance
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with EMU legislation immediately upon such Subsequent Participant becoming a
Participating Member State (but otherwise in accordance with EMU Legislation).
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS
5.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Alternate Base Rate for such
day.
(c) Each Multicurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurocurrency Rate determined for such Interest Period plus the Applicable
Margin in effect for such day.
(d) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2%.
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand.
5.2 Conversion and Continuation Options. (a) The U.S. Borrower
may elect from time to time to convert outstanding Eurodollar Loans (in whole or
in part) to ABR Loans by giving the Administrative Agent at least one Business
Day's prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto unless the U.S. Borrower shall agree to pay the
costs associated therewith as set forth in subsection 5.11(d). The U.S. Borrower
may elect from time to time to convert outstanding ABR Loans made to it (in
whole or in part) to Eurodollar Loans by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. All or any
part of outstanding Eurodollar Loans and ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Revolving Credit Lenders (in the case of
Revolving Credit Loans) or the Majority Term Loan Lenders (in the case of Term
Loans) have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 5.3
shall not have been violated,
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(iii) no ABR Loan may be converted into a Eurodollar Loan after the date that is
one month prior to the Revolving Credit Termination Date (in the case of
Revolving Credit Loans) or Term Loan Maturity Date (in the case of Term Loans).
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Revolving Credit Lenders (in the case of Revolving Credit Loans)
or the Majority Term Loan Lenders (in the case of Term Loans) have determined
that such continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 5.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date (in the case of Revolving Credit
Loans) or the Term Loan Maturity Date (in the case of Term Loans), and provided,
further, that if the U.S. Borrower shall fail to give such notice or if such
continuation is not permitted pursuant to the preceding proviso such Eurodollar
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower or the relevant Borrower giving a Notice of Multicurrency Loan
Continuation, provided, that if the relevant Borrower shall fail to give such
Notice of Multicurrency Loan Continuation, such Multicurrency Loans shall
automatically be continued for an Interest Period of one month.
5.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Revolving Credit Loans and Multicurrency Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, (a) the
aggregate principal amount of the Eurodollar Loans comprising each Tranche shall
be equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof, (b)
the aggregate principal amount of the Multicurrency Loans comprising each
Tranche shall be in an amount of which the U.S. Dollar Equivalent is at least
$2,500,000 (determined at the time of borrowing or continuation) and (c) there
shall not be more than 25 Tranches at any one time outstanding.
5.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower
may at any time and from time to time prepay Revolving Credit Loans and/or Term
Loans in whole or in part without premium or penalty upon at least three
Business Days' irrevocable notice to the Administrative Agent (in the case of
Eurodollar Loans) and at least one Business Day's irrevocable notice to the
Administrative Agent (in the case of ABR Loans) specifying the date and amount
of prepayment and whether the prepayment of Revolving Credit Loans or Term Loans
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if a
combination thereof, the amount allocable to each. Upon the receipt of any such
notice the Administrative Agent shall promptly notify each Revolving Credit
Lender or Term Loan Lender, as the case may be, thereof. If any such notice is
given, the amount specified in such notice shall be due and
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payable on the date specified therein. Partial prepayments of the Revolving
Credit Loans or Term Loans, as the case may be, shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof (or in such lower amount as may be then outstanding).
(b) The U.S. Borrower and Foreign Subsidiary Borrowers may at
any time and from time to time prepay, without premium or penalty, the
Multicurrency Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the Administrative Agent specifying the date and amount of
prepayment. Upon the receipt of any such notice, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments of Multicurrency Loans shall be in an
aggregate principal amount of which the U.S. Dollar Equivalent is at least
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
(c) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Revolving Outstandings of all Lenders
exceed the Aggregate Revolving Credit Commitments then in effect by more than
5%, or the Aggregate Revolving Outstandings of any Lender exceeds the Revolving
Credit Commitment of such Lender then in effect by more than 5%, (i) the U.S.
Borrower shall, upon learning thereof or upon the request of the Administrative
Agent, immediately prepay the Revolving Credit Loans and/or (ii) the Foreign
Subsidiary Borrowers shall, upon learning thereof or upon the request of the
Administrative Agent, immediately prepay the Multicurrency Loans in an aggregate
principal amount at least sufficient to reduce any such excess to 0%.
(d) Each prepayment of Loans pursuant to this subsection 5.4
shall be accompanied by accrued and unpaid interest on the amount prepaid to the
date of prepayment and any amounts payable under subsection 5.11 in connection
with such prepayment.
(e) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans or Multicurrency Loans that would otherwise be required
pursuant to this subsection 5.4 solely as a result of fluctuations in Exchange
Rates from time to time shall only be required to be made pursuant to this
subsection 5.4 on the last Business Day of each month on the basis of the
Exchange Rate in effect on such Business Day.
5.5 Commitment Fees; Other Fees. (a) The U.S. Borrower agrees
to pay to the Administrative Agent for the account of each Lender, a commitment
fee for the period from and including the Closing Date to but excluding the
Revolving Credit Termination Date (or such earlier date on which the Revolving
Credit Commitments shall terminate as provided herein); each such commitment fee
shall be computed at the Commitment Fee Rate on the daily average amount of the
Available Revolving Credit Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Credit Termination Date or
such earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first such date to occur after the date
hereof.
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(b) The U.S. Borrower shall pay (without duplication of any
other fee payable under this subsection 5.5) to Chase and CSI, for their
respective accounts, all fees separately agreed to by the U.S. Borrower and
Chase or CSI, as the case may be.
(c) The U.S. Borrower shall (without duplication of any other
fee payable under this subsection 5.5) pay to the Administrative Agent all fees
separately agreed to by the U.S. Borrower and the Administrative Agent.
5.6 Computation of Interest and Fees. (a) Interest based on
the Eurodollar Rate, the Eurocurrency Rate or the Alternate Base Rate when it is
based upon the Federal Funds Effective Rate shall be calculated on the basis of
a 360-day year for the actual days elapsed; and facility fees and interest
(other than interest based upon the Eurodollar Rate, the Eurocurrency Rate or
the Alternative Base Rate when it is based upon the Federal Funds Effective
Rate) shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the U.S. Borrower and the Lenders of each determination of a
Eurodollar Rate or Eurocurrency Rate. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate or a change in the Prime Rate
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the U.S. Borrower and the Lenders of the effective date and the amount of
each such change in the Alternate Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of a Borrower,
deliver to such Borrower a statement showing in reasonable detail the
calculations used by such Administrative Agent in determining any interest rate
pursuant to subsection 5.1(a).
(c) If any U.S. Reference Lender shall for any reason no
longer have a Revolving Credit Commitment or any Revolving Credit Loans or Term
Loans, such U.S. Reference Lender shall thereupon cease to be a U.S. Reference
Lender, and if, as a result, there shall only be one U.S. Reference Lender
remaining, the Administrative Agent, with the consent of the U.S. Borrower
(after consultation with Lenders) shall, by notice to the U.S. Borrower and the
Revolving Credit Lenders, designate another Lender as a U.S. Reference Lender so
that there shall at all times be at least two U.S. Reference Lenders.
(d) Each U.S. Reference Lender shall use its best efforts to
furnish quotations of rates to the applicable Administrative Agent as
contemplated hereby. If any of the U.S. Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the applicable Administrative Agent
upon its request, the rate of interest shall, subject to the provisions of
subsection 5.7, be determined on the basis of the quotations of the remaining
U.S. Reference Lenders or Reference Lender.
5.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or
the Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Revolving Credit Lenders or Majority Term Loan Lenders, as the
case may be, that the Eurodollar Rate or Eurocurrency Rate, as the case
may be, determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Eurodollar Loans or Multicurrency Loans, as the case
may be, during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
U.S. Borrower and the Lenders as soon as practicable thereafter. Until such time
as the Eurodollar Rate or the Eurocurrency Rate, as the case may be, can be
determined by the Administrative Agent in the manner specified in the
definitions of such terms in subsection 1.1, no further Eurodollar Loans or
Multicurrency Loans (with respect to the Available Currency for which the
Eurocurrency Rate cannot be determined only) shall be continued as such at the
end of the then current Interest Periods or (other than any Eurodollar Loans or
Multicurrency Loans previously requested and with respect to which the
Eurodollar Rate or Eurocurrency Rate, as the case may be, was determined) shall
be made, nor shall the U.S. Borrower have the right to convert ABR Loans into
Eurodollar Loans.
5.8 Pro Rata Treatment and Payments. (a) (i) Except as
provided in subsection 2.5, each borrowing of Revolving Credit Loans by the U.S.
Borrower from the Lenders hereunder shall be made pro rata according to the
Funding Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the U.S. Borrower on account of any commitment fee
hereunder shall be allocated by the Administrative Agent among the Lenders in
accordance with the respective amounts which such Lenders are entitled to
receive pursuant to subsection 5.5(a). Any reduction of the Revolving Credit
Commitments of the Lenders shall be allocated by the Administrative Agent among
the Lenders pro rata according to the Revolving Credit Commitment Percentages of
the Lenders. Except as provided in subsection 2.5, each payment (other than any
optional prepayment) in respect of principal or interest in respect of the Loans
shall be allocated among the Revolving Credit Loans, Multicurrency Loans and
Term Loans pro rata according to the amounts of principal or interest, as the
case may be, then due and owing in respect of such Loans. Except as provided in
subsection 2.5 or subsection 5.4(c), each payment (other than any optional
prepayment) by the U.S. Borrower on account of principal of or interest on the
Revolving Credit Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts thereof then due and owing to each
Lender. Each optional prepayment by the U.S. Borrower on account of principal of
or interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof.
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(ii) The borrowing of Term Loans by the U.S. Borrower from the
Term Loan Lenders hereunder shall be made pro rata according to the respective
Term Loan Commitments of the Term Loan Lenders. Each payment (other than any
optional prepayment) by the U.S. Borrower on account of principal of or interest
on the Term Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Term Loans then due and
owing to each Lender. Each optional prepayment by the U.S. Borrower on account
of principal of or interest on the Term Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof.
(iii) All payments (including prepayments) to be made by the
U.S. Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the U.S. Lenders, at the Administrative Agent's office
specified in subsection 13.2, in U.S. Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the U.S.
Lenders entitled to receive the same promptly upon receipt in like funds as
received.
(iv) Each borrowing of Multicurrency Loans by the U.S.
Borrower or any Foreign Subsidiary Borrower shall be made, and any reduction of
the Multicurrency Commitments shall be allocated by the Administrative Agent,
pro rata according to the Multicurrency Commitment Percentages of the
Multicurrency Lenders. Except as provided in subsection 5.4(d), each payment
(including each prepayment) by the U.S. Borrower or a Foreign Subsidiary
Borrower on account of principal of and interest on Multicurrency Loans shall be
allocated by the Administrative Agent pro rata according to the respective
principal amounts of the Multicurrency Loans then due and owing by such Foreign
Subsidiary Borrower to each Multicurrency Lender. All payments (including
prepayments) to be made by a Borrower hereunder in respect of Multicurrency
Loans, whether on account of principal, interest, fees or otherwise, shall be
made without set-off or counterclaim and shall be made at or before the payment
time for the currency of such Multicurrency Loan set forth in the Administrative
Schedule, on the due date thereof to the Administrative Agent, for the account
of the Multicurrency Lenders, at the payment office for the currency of such
Multicurrency Loan set forth in the Administrative Schedule, in the currency of
such Multicurrency Loan and in immediately available funds. The Administrative
Agent shall distribute such payments to the Multicurrency Lenders entitled to
receive the same promptly upon receipt in like funds as received.
(v) If any payment hereunder (other than payments on the
Eurodollar Loans and the Multicurrency Loans) becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the
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result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
(b) A payment in euro shall be deemed to have been made by the
Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before that date, taken all
relevant steps to make that payment. With respect to the payment of any amount
denominated in euro, the Administrative Agent shall not be liable to any
Borrower or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds in the euro unit to the account with the bank
in the principal financial center in the Participating Member State which the
relevant Borrower or, as the case may be, any Lender shall have specified for
such purpose. In this paragraph (b), "all relevant steps" means all such steps
as may be prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as the Administrative Agent may
from time to time determine for the purpose of clearing or settling payments of
euro.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate per annum equal to (i) the daily average
Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit
Loans or Term Loans), and (ii) the Administrative Agent's reasonable estimate of
its average daily cost of funds (in the case of a borrowing of Multicurrency
Loans), in each case for the period until such Lender makes such amount
immediately available to such Administrative Agent. A certificate of such
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to such
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the applicable Borrower shall repay such Lender's share of such borrowing
(together with interest thereon from the date such amount was made available to
such Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in
the case of a borrowing of Revolving Credit Loans or Term Loans and (ii) the
Administrative Agent's reasonable estimate of its average daily cost of funds
plus the Applicable Margin applicable to Multicurrency Loans (in the case of a
borrowing of Multicurrency Loans)) to such Administrative Agent not later than
three Business Days after receipt of written notice from such Administrative
Agent specifying such Lender's share of such borrowing that was not made
available to such Administrative Agent. Nothing contained in this subsection
5.8(b) shall prejudice any claims otherwise available to any Borrower against
any Lender as a result of such Lender's failure to make its share of any
borrowing available to an Administrative Agent for the account of a Borrower.
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(d) Any amount payable by the Administrative Agent to the
Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the euro unit.
(e) If, in relation to the currency of any Subsequent
Participant, the basis of accrual of interest or fees expressed in this
Agreement with respect to such currency shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may be,
the Paris Interbank Market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such Subsequent Participant
becomes a Participating Member State; provided, that if any Multicurrency Loan
in the currency of such Subsequent Participant is outstanding immediately prior
to such date, such replacement shall take effect, with respect to such
Multicurrency Loan, at the end of the then current Interest Period.
(f) Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU legislation, each reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency unit to be paid to or by the Administrative Agent shall be replaced by
a reference to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may from time to
time specify.
5.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans or
Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be required by law and (c) such
Lender's Multicurrency Loans shall be prepaid on the last day of the then
current Interest Period with respect thereto. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the U.S. Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to subsection 5.11.
5.10 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note or any Loans
made by it, or change the basis of taxation of payments to such Lender
of principal, fees, interest or any other amount payable hereunder
(except for taxes covered by subsection 5.12 and changes in the rate of
tax on the overall net income of such Lender);
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(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate or
Eurocurrency Rate, including, without limitation, the imposition of any
reserves with respect to Eurocurrency Liabilities under Regulation D of
the Board; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Loans, then, in any such case, the
applicable Borrower shall promptly pay such Lender, upon receipt of its demand
setting forth in reasonable detail, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount receivable,
such additional amounts together with interest on each such amount from the date
two Business Days after the date demanded until payment in full thereof at the
ABR. A certificate as to any additional amounts payable pursuant to the
foregoing sentence submitted by such Lender, through the Administrative Agent,
to the applicable Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of all
amounts outstanding hereunder.
(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application thereof)
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline, does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the U.S. Borrower (with a copy to the Administrative Agent) of
a written request therefor, the U.S. Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If the obligation of any Lender to make Eurodollar Loans
or Multicurrency Loans has been suspended pursuant to subsection 5.7 or 5.9 for
more than three consecutive months or any Lender has demanded compensation under
subsection 5.10(a) or 5.10(b), the U.S. Borrower shall have the right to
substitute a financial institution or financial institutions (which may be one
or more of the Lenders) reasonably satisfactory to the Administrative Agent by
causing such financial institution or financial institutions to purchase the
rights (by paying to such Lender the principal amount of its outstanding Loans
together with accrued interest thereon and all other amounts accrued for its
account or owed to it hereunder and executing an
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Assignment and Acceptance) and to assume the obligations of such Lender under
the Loan Documents. Upon such purchase and assumption by such substituted
financial institution or financial institutions, the obligations of such Lender
hereunder shall be discharged; provided such Lender shall retain its rights
hereunder with respect to periods prior to such substitution including, without
limitation, its rights to compensation under this subsection 5.10.
5.11 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in payment
when due of the principal amount of or interest on any Loans of such Lender, (b)
default by such Borrower in making a borrowing or conversion after the Borrower
has given a notice of borrowing or a notice of conversion in accordance with
this Agreement, (c) default by such Borrower in making any prepayment after such
Borrower has given a notice in accordance with this Agreement or (d) the making
of a prepayment of a Eurodollar Loan or Multicurrency Loan on a day which is not
the last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the deposits from
which such funds were obtained, including, without limitation, in each case, any
such loss or expense arising from the reemployment of funds obtained by it to
maintain its Eurodollar Loans or Multicurrency Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. A
certificate as to any such loss or expense submitted by such Lender shall be
conclusive, absent manifest error. This covenant shall survive termination of
this Agreement and payment of all amounts outstanding hereunder.
5.12 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Administrative Agent and each Lender,
income or franchise taxes imposed on the Administrative Agent or such Lender by
the jurisdiction under the laws of which the Administrative Agent or such Lender
is organized or any political subdivision or taxing authority thereof or therein
or by any jurisdiction in which such Lender's lending office is located or any
political subdivision or taxing authority thereof or therein or as a result of a
connection between such Lender and any jurisdiction other than a connection
resulting solely from entering into this Agreement (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being thereinafter called
"Taxes"). Subject to the provisions of subsection 5.12(d), if any Taxes are
required to be withheld from any amounts payable by such Borrower to the
Administrative Agent or any Lender hereunder or under the Notes, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are paid by any Borrower with respect to payments made in connection
with this Agreement, as promptly as possible thereafter, such Borrower shall
send to the applicable Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. Subject to
the provisions of
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subsection 5.12(d), if any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lenders as a result of any such failure.
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America or a state thereof agrees that, prior
to the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the U.S. Borrower and the Administrative Agent (i) two
valid, duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments by the U.S. Borrower under
this Agreement and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, and (ii) a valid, duly completed
Internal Revenue Service Form W-8 or W-9 or successor applicable form, as the
case may be, to establish an exemption from United States backup withholding
tax. Each Lender which delivers to the U.S. Borrower and the Administrative
Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the next preceding
sentence further undertakes to deliver to the U.S. Borrower and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms, or other manner or certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining
an exemption from withholding tax, or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
U.S. Borrower, and such extensions or renewals thereof as may reasonably be
requested by the U.S. Borrower, certifying in the case of a Form 1001 or 4224 or
successor applicable form that such Lender is entitled to receive payments by
the U.S. Borrower under this Agreement without deduction or withholding of any
United States federal income taxes, unless any change in treaty, law or
regulation or official interpretation thereof has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the U.S. Borrower that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, and in the case of
a Form W-8 or W-9 or successor applicable form, establishing an exemption from
United States backup withholding tax (it being agreed that final and temporary
Treasury Regulations promulgated in T.O. 8734 shall not constitute a change in
law, regardless of their effective date).
(c) Each Multicurrency Lender shall, upon request by a Foreign
Subsidiary Borrower (or the U.S. Borrower on its behalf), within a reasonable
period of time after such request, deliver to such Foreign Subsidiary Borrower
or the applicable governmental or taxing authority, as the case may be, any form
or certificate required in order that any payment by such Foreign Subsidiary
Borrower under this Agreement or any Notes to such Lender may be made free and
clear of, and without deduction or withholding for or on account of any Taxes
(or to allow any such deduction or withholding to be at a reduced rate) imposed
on such payment under the laws of the jurisdiction under which such Foreign
Subsidiary Borrower is incorporated or organized, provided that such Lender is
legally entitled to complete, execute and deliver such
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form or certificate and in such Lender's reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
(d) Neither the U.S. Borrower nor any other Borrower shall be
required to pay any additional amounts to the Administrative Agent or any Lender
(or Transferee except to the extent such Transferee's transferor was entitled,
at the time of transfer, to receive additional amounts from the U.S. Borrower)
in respect of Taxes pursuant to subsection 5.12(a) if the obligation to pay such
additional amounts would not have arisen but for a failure by the Administrative
Agent or such Lender (or Transferee) to comply with the requirements of
subsection 5.12(b) or (c) (or in the case of a Transferee, the requirements of
subsection 13.6(h)).
(e) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection 5.12;
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(f) The agreements in subsection 5.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the expiration of the applicable statute of limitations
for such taxes.
5.13 Assignment of Commitments Under Certain Circumstances.
(a) In the event that any Lender shall have delivered a notice or certificate
pursuant to subsection 5.10 or any Borrower has been required to pay any Taxes
in respect of any Lender pursuant to subsection 5.12, the U.S. Borrower shall
have the right, at its own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
subsection 13.6) all its interests, rights and obligations under this Agreement
to another bank or financial institution identified by the U.S. Borrower and
reasonably acceptable to the Administrative Agent (subject to the restrictions
contained in subsection 13.6) which shall assume such obligations; provided that
(i) no such assignment shall conflict with any law, rule or regulation or order
of any Governmental Authority and (ii) the Borrower or the assignee, as the case
may be, shall pay to the transferor Lender in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by it hereunder and all other amounts accrued for its
account or owed to it hereunder, including, without limitation, amounts payable
pursuant to subsection 5.10 and any amounts that would be payable under
subsection 5.11 if such amount were a prepayment made in the amount and on the
date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Taxes, the U.S. Borrower may, so long as no Event of Default has
occurred and is continuing, require such Multicurrency Lender, upon five
Business Days' prior written notice from the U.S. Borrower, to assign the entire
then outstanding principal amount of the Multicurrency Loans owing to such
Multicurrency Lender and the entire
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Multicurrency Commitment of such Multicurrency Lender to one or more Lenders
selected by the U.S. Borrower which, after giving effect to such assignment,
will have a Revolving Credit Commitment in excess of its Multicurrency
Commitment. In the case of any such assignment to another Lender, such assignee
Lender shall assign to such assignor Multicurrency Lender a principal amount of
outstanding Revolving Credit Loans owing to such assignee Lender equal to the
lesser of (i) the U.S. Dollar Equivalent of the amount of Multicurrency Loans
assigned to such assignee Lender and (ii) the aggregate outstanding principal
amount of Revolving Credit Loans owing to such assignee Lender. Any such
assignments pursuant to the two precedent sentences shall be effected in
accordance with subsection 13.6(c) and, as a condition to such assignment,
simultaneously with such assignment, the U.S. Borrower shall pay or cause to be
paid all amounts due to the assignor Multicurrency Lender and the assignee
Lender hereunder on the effective date of such assignments.
5.14 Use of Proceeds. The proceeds of the Loans shall be used
for general corporate purposes of the U.S. Borrower and its Subsidiaries,
including the UT Automotive Acquisition and other acquisitions permitted
hereunder.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans, each Borrower hereby represents and warrants to the Administrative
Agent and to each Lender that:
6.1 Financial Statements. The audited consolidated balance
sheets of the U.S. Borrower as of December 31, 1998 and the related statements
of income and cash flow for the fiscal year ending on such date, heretofore
furnished to the Administrative Agent and the Lenders and certified by a
Responsible Officer of the U.S. Borrower are complete and correct in all
material respects and fairly present the financial condition of the U.S.
Borrower on such date in conformity with GAAP applied on a consistent basis
(subject to normal year-end adjustments). All liabilities, direct and
contingent, of the U.S. Borrower on such date required to be disclosed pursuant
to GAAP are disclosed in such financial statements.
6.2 No Change. There has been no material adverse change in
the business, operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole from that reflected on the
financial statements dated December 31, 1998 referred to in subsection 6.1.
6.3 Corporate Existence; Compliance with Law. The U.S.
Borrower and each of its Material Subsidiaries (a) is duly organized, validly
existing and in good standing (or the functional equivalent thereof in the case
of Foreign Subsidiaries) under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation and in good standing (or the functional equivalent thereof
in the case of Foreign Subsidiaries) under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
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business requires such qualification except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole and
would not adversely affect the ability of any Loan Party to perform its
respective obligations under the Loan Documents to which it is a party and (d)
is in compliance with all Requirements of Law, except to the extent that the
failure to comply therewith would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the business,
operations, assets or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole and would not reasonably be expected to adversely
affect the ability of any Loan Party to perform its obligations under the Loan
Documents to which it is a party.
6.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the corporate power and authority, and the legal right,
to execute, deliver and perform each of the Loan Documents to which it is a
party or to which this Agreement requires it to become a party. The U.S.
Borrower has the corporate power and authority to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Revolving Credit Notes and the Term Notes.
Each Loan Party has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the Loan Documents to which it is
a party or to which this Agreement requires it to become a party.
(b) No consent or authorization of, filing with or other act
by or in respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
(c) This Agreement and each other Loan Document to which any
Loan Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party, the
borrowings hereunder and the use of the proceeds thereof, (a) will not violate
any Requirement of Law or any Contractual Obligation of the U.S. Borrower or any
other Loan Party (including, without limitation, the 9 1/2% Subordinated Note
Indenture and the Subordinated Note Indenture) except for violations of
Requirements of Law and Contractual Obligations (other than such Indentures)
which,
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individually or in the aggregate will not have a material adverse effect on the
business, operations, property or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole and will not adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party and (b) will not result in, or require, the
creation or imposition of any Lien (other than the Liens created by the Security
Documents) on any of its or their respective properties or revenues pursuant to
any Requirement of Law or Contractual Obligation. The Obligations of the U.S.
Borrower constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the U.S. Borrower.
6.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the U.S. Borrower, overtly threatened by or against the U.S.
Borrower or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any Loan Document or any of the
transactions contemplated hereby or thereby, (b) which would reasonably be
expected to have a material adverse effect on the business, operations, property
or financial or other condition of the U.S. Borrower and its Subsidiaries taken
as a whole or (c) which would be reasonably expected to adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party.
6.7 No Default. Neither the U.S. Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole or
which would adversely affect the ability of any Loan Party to perform its
obligations under any of the Loan Documents to which it is a party. No Default
or Event of Default has occurred and is continuing.
6.8 Ownership of Property; Liens. The U.S. Borrower and each
of its Material Subsidiaries has good record and marketable title in fee simple
to, or a valid and subsisting leasehold interest in all its material real
property, and good title to all its other property, and none of such property is
subject to any Lien, except as permitted in subsection 9.3 and except, in each
case, where any failure to have good title or a valid and subsisting leasehold
interest or the existence of any Lien would not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole.
6.9 Taxes. (a) The U.S. Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the U.S. Borrower are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than those which,
in the aggregate, are not substantial in amount or those the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
the books of the U.S. Borrower or its Subsidiaries, as the case may
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be and except insofar as the failure to make such filings or payments would not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole); and (b) no tax lien (other than a Lien permitted
in subsection 9.3) has been filed and, to the knowledge of the U.S. Borrower, no
claim is being asserted with respect to any such tax, fee or other charge.
6.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and foreign
securities law and Regulations T, U and X of the Federal Reserve Board.
6.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred and no Lien under the Code or ERISA in favor
of PBGC or a Single Employer Plan has arisen during the five-year period prior
to the date as of which this representation is deemed made. The present value of
all accrued benefits under each Single Employer Plan maintained by the U.S.
Borrower or any Commonly Controlled Entity (based on those assumptions used to
fund the Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits, either individually or
in the aggregate with all other Single Employer Plans under which such accrued
benefits exceed such assets, by more than $125,000,000. Neither the U.S.
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan during the five year period prior to the
date as of which this representation is made or deemed made, and neither the
U.S. Borrower nor any Commonly Controlled Entity would become subject to
liability under ERISA in the aggregate which exceeds $145,000,000 if the U.S.
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
hereof, and no such withdrawal is likely to occur. No such Multiemployer Plan is
in Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits provided
and the employees participating) of the liability of the U.S. Borrower and each
Commonly Controlled Entity for post retirement benefits to be provided to their
current and former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets
under all such Plans allocable to such benefits by an amount in excess of
$145,000,000.
6.12 Investment Company Act; Other Regulations. The U.S.
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The U.S. Borrower is not subject to regulation
under any federal or state statute or regulation which limits its ability to
incur Indebtedness.
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6.13 Subsidiaries, etc. The Subsidiaries of the U.S. Borrower
as of the Closing Date are those listed on Schedule VI. The U.S. Borrower owns,
as of the Closing Date, the percentage of the issued and outstanding capital
stock or other evidences of the ownership of each Subsidiary listed on Schedule
VI as set forth on such Schedule. Except as disclosed on Schedule VI, no such
Subsidiary has issued any securities convertible into shares of its capital
stock (or other evidence of ownership) or any options, warrants or other rights,
to acquire such shares or securities convertible into such shares (or other
evidence of ownership), and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries are owned by the U.S. Borrower and
its Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 9.3.
6.14 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the U.S. Borrower
or this Agreement or any transaction contemplated hereby furnished to the
Lenders by the U.S. Borrower or on behalf of the U.S. Borrower, were, at the
time the same were so furnished, complete and correct in all material respects,
or have been subsequently supplemented by other information, reports or other
papers or data, to the extent necessary to give the Lenders a true and accurate
knowledge of the subject matter in all material respects. All projections with
respect to the U.S. Borrower and its Subsidiaries, so furnished by the U.S.
Borrower, as supplemented, were prepared and presented in good faith by the U.S.
Borrower, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ materially from the
projected results. No document furnished or statement made in writing to the
Lenders by the U.S. Borrower in connection with the negotiation, preparation or
execution of this Agreement contains any untrue statement of a material fact,
or, to the knowledge of the U.S. Borrower after due inquiry, omits to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders.
6.15 Security Documents. Each Pledge Agreement is effective to
create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged assets
described therein. Each Pledge Agreement constitutes a fully perfected first
Lien on, and security interest in, all right, title and interest of the Loan
Party thereto in the pledged assets described therein.
6.16 Patents, Copyrights, Permits and Trademarks. Each of the
U.S. Borrower and its Subsidiaries owns, or has a valid license or sub-license
in, all domestic and foreign letters patent, patents, patent applications,
patent and know-how licenses, inventions, technology, permits, trademark
registrations and applications, trademarks, trade names, trade secrets, service
marks, copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other condition
of the U.S. Borrower and its Subsidiaries taken as a whole. Neither the U.S.
Borrower nor any of its Subsidiaries is aware of any existing or threatened
infringement or misappropriation of any Proprietary Rights of others by the U.S.
Borrower or any of its
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Subsidiaries or of any Proprietary Rights of the U.S. Borrower or any of its
Subsidiaries by others which is material to the business operations, assets or
financial or other condition of the U.S. Borrower and its Subsidiaries taken as
a whole.
6.17 Environmental Matters. Except as disclosed in Schedule
VII, and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole:
(a) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute
a violation of, or (B) could reasonably give rise to any liability
under any applicable Environmental Laws.
(b) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been
owned by the U.S. Borrower or its Subsidiaries, with all Environmental
Laws, and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties
which could interfere with the continued operation of the Properties or
impair the fair saleable value thereof. Neither the U.S. Borrower nor
any Subsidiary has knowingly assumed any liability, by contract or
otherwise, of any person under any Environmental Laws.
(c) Neither the U.S. Borrower nor any of its
Subsidiaries has received any Environmental Complaint with regard to
any of the Properties or the operations of the U.S. Borrower or any of
its Subsidiaries, nor does the U.S. Borrower or any of its Subsidiaries
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the U.S. Borrower and its
Subsidiaries, based on the U.S. Borrower's and the Subsidiaries'
customary practice of contracting only with licensed haulers for
removal of Hazardous Materials from the Properties only to facilities
authorized to receive such Hazardous Materials, Hazardous Materials
have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably
give rise to liability under, Environmental Laws, nor have any
Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably give rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the U.S.
Borrower and its Subsidiaries, threatened, under any Environmental Law
to which the U.S. Borrower and its Subsidiaries are or will be named as
a party with respect to the Properties, nor are there any consent
decrees
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or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Properties.
(f) To the best knowledge of the U.S. Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties,
or arising from or related to the operations of the U.S. Borrower or
its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could reasonably give rise to liability
under any Environmental Laws.
6.18 Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the U.S.
Borrower's computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the U.S.
Borrower's systems interface) and the testing of all such systems and equipment,
as so reprogrammed, are expected to be completed within such period of time as
is required to avoid a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its Subsidiaries taken
as a whole as a result of the failure to complete such reprogramming. The cost
to the U.S. Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the U.S. Borrower (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) would not reasonably be expected to have a material adverse effect on
the business, operations, property or financial condition of the U.S. Borrower
and its Subsidiaries taken as a whole.
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement, duly executed by a Responsible Officer
of each Borrower, the Administrative Agent and each Lender party
hereto.
(b) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee duly executed by each guarantor party
thereto.
(c) Domestic Pledge Agreement. The Administrative Agent shall
have received the Domestic Pledge Agreement listed on Schedule IV, duly
executed by each pledgor party thereto.
(d) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to the Domestic Pledge
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Agreement listed on Schedule IV, together with an undated stock power
for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(e) Perfection Actions. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other
actions necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Domestic Pledge Agreement
shall have been completed.
(f) UT Automotive Acquisition. The UT Automotive Acquisition
shall have been consummated in accordance with the UT Automotive
Acquisition Agreement, and the Administrative Agent shall have received
a certificate of a Responsible Officer to such effect.
(g) UT Automotive Financial Statements. The Lenders shall have
received the audited financial statements of Xxxx Corporation
Automotive Holdings (formerly known as UT Automotive, Inc.) for the
fiscal year ended December 31, 1998.
(h) Consents. The Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each
case certified as to authenticity on such date by a duly authorized
officer of the U.S. Borrower) of all documents and instruments,
including all consents, authorizations and filings, required under any
Requirement of Law or by Contractual Obligation of the U.S. Borrower or
any of its Subsidiaries, in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the
other Loan Documents, and such consents, authorizations and filings
shall be satisfactory in form and substance to the Lenders and be in
full force and effect.
(i) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party, dated the
Closing Date, as to the incumbency and signature of their respective
officers executing each Loan Document to be entered into on the Closing
Date to which it is a party, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
(j) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors (or the executive committee thereof) of each
Domestic Loan Party authorizing (i) the execution, delivery and
performance of each Loan Document to be entered into on the Closing
Date to which it is a party, and (ii) the granting by it of the pledge
and security interests, if any, granted by it pursuant to such Loan
Document, certified by their respective Secretary or an Assistant
Secretary as of the Closing Date, which certificate shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate.
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(k) Fees. The Administrative Agent shall have received all
fees required to be paid to the Administrative Agent and/or the Lenders
pursuant to Section 5.5 and/or any other written agreement on or prior
to the Closing Date.
(l) Legal Opinion of Counsel to U.S. Borrower. The
Administrative Agent shall have received, with a copy for each Lender,
an opinion, dated the Closing Date, of Winston & Xxxxxx, special
counsel to the U.S. Borrower and its Subsidiaries and in
substantially the form of Exhibit L and covering such other matters
incident to the transactions contemplated hereby as the Lenders may
reasonably require.
(m) Subordinated Debt Indentures. The Administrative Agent
shall have received, with a copy for each Lender, a certified true copy
of the outstanding Subordinated Debt Indentures.
(n) Closing Date under Other Credit Agreements. The Closing
Date under (and as defined in) the Other Credit Agreements shall have
occurred or shall occur simultaneously with the Closing Date hereunder.
7.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, the Closing Date), is subject to the satisfaction of the following
conditions precedent as of the date such Loan is requested to be made:
(a) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects as of such
specified date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loan requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Loan is the
initial Multicurrency Loan to be made to any Foreign Subsidiary
Borrower, the Administrative Agent shall have received (with a copy for
each Lender) a Foreign Subsidiary Opinion in respect of such Foreign
Subsidiary Borrower.
Each Loan made to a Borrower hereunder shall constitute a representation and
warranty by such Borrower as of the date of such Loan that the conditions
contained in this subsection 7.2 have been satisfied.
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SECTION 8. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the U.S. Borrower shall and shall
cause each of its Subsidiaries to:
8.1 Financial Statements. Furnish to each Lender (or to the
Administrative Agent on behalf of such Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the U.S. Borrower, a copy of the
audited consolidated balance sheet of the U.S. Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and cash flows for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the U.S. Borrower, the unaudited consolidated balance
sheet of the U.S. Borrower and its consolidated Subsidiaries as at the
end of each such quarter and the related unaudited consolidated
statements of income and cash flows of the U.S. Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through such date, setting forth in each case in
comparative form the figures for the corresponding quarterly period of
the previous year, certified by a Responsible Officer (subject to
normal year-end audit adjustments).
The U.S. Borrower covenants and agrees that all such financial statements shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
8.2 Certificates; Other Information. Furnish to each Lender
(or to the Administrative Agent on behalf of such Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
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(b) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a) and (b), a certificate of a
Responsible Officer of the U.S. Borrower (i) stating that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (ii) stating, to
the best of such Responsible Officer's knowledge, that all such
financial statements are complete and correct in all material respects
(subject, in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statements in respect of
subsection 9.1;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the U.S. Borrower by independent certified public
accountants in connection with each annual, interim or special audit of
the books of the U.S. Borrower made by such accountants, including,
without limitation, any management letter commenting on the U.S.
Borrower's internal controls submitted by such accountants to
management in connection with their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the U.S. Borrower sends to its public
equity holders, and within five days after the same are filed, copies
of all financial statements and reports which the U.S. Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality
requirements and confidentiality agreements to which the Borrower or
any of its Subsidiaries is a party, such additional financial and other
information as any Lender may from time to time reasonably request.
8.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each material mortgage,
indenture, security agreement and other debt instrument by which it is bound or
to which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the books
of the U.S. Borrower or its Subsidiaries, as the case may be.
8.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business except as otherwise permitted pursuant to subsection 9.5
and except, with respect to the corporate existence of Subsidiaries that are not
Loan Parties and any rights, privileges and franchises, to the extent that the
Board of Directors of the U.S.
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Borrower shall determine in good faith that the preservation or maintenance
thereof is no longer desirable in the conduct of the business of the U.S.
Borrower and its Subsidiaries; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith would
not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, operations, property or financial or other
condition of the U.S. Borrower and its Subsidiaries taken as a whole and would
not reasonably be expected to adversely affect the ability of the U.S. Borrower
or any of its Subsidiaries to perform their respective obligations under any of
the Loan Documents to which they are a party.
8.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition where
the failure to maintain such property in good working order and condition would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole; maintain with financially sound and reputable
insurance companies such insurance coverage as is reasonable for the business
activities of the U.S. Borrower and its Subsidiaries; and furnish to the
Administrative Agent, upon written request, full information as to the insurance
carried.
8.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the U.S.
Borrower and its Subsidiaries with officers and employees of the U.S. Borrower
and its Subsidiaries and, provided the U.S. Borrower is given an opportunity to
participate, with its independent certified public accountants.
8.7 Notices. Promptly give notice to the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the U.S. Borrower or any of its Subsidiaries
or (ii) litigation, investigation or proceeding which may exist at any
time between the U.S. Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, would reasonably be expected to have a material adverse effect
on the business, operations, property or financial condition of the
U.S. Borrower and its Subsidiaries taken as a whole or would reasonably
be expected to adversely affect the ability of the U.S. Borrower or any
of its Subsidiaries to perform their respective obligations under any
of the Loan Documents to which they are a party;
(c) of any litigation or proceeding affecting the U.S.
Borrower or any of its Subsidiaries in which the then reasonably
anticipated exposure of the U.S. Borrower and
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its Subsidiaries is $20,000,000 or more and not covered by insurance, or in
which injunctive or similar relief is sought which is then reasonably
anticipated to have an adverse economic effect on the U.S. Borrower and its
Subsidiaries of $20,000,000 or more;
(d) of the following events, as soon as possible and in any
event within 30 days after the U.S. Borrower knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to any Single Employer Plan, unless such
failure is cured within such 30 days, any Lien under the Code or ERISA
in favor of the PBGC or a Single Employer Plan, or any withdrawal from,
or the termination, Reorganization or Insolvency of any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the U.S. Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Single
Employer or Multiemployer Plan, where, in connection with any of the
events described in clauses (i) or (ii), the resulting liability would
reasonably be expected to cause a material adverse change in the
business, assets, operations or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, and any notice from any Person of (i)
the occurrence of any release, spill or discharge of any Hazardous
Material that is reportable under any Environmental Law, (ii) the
commencement of any clean up pursuant to or in accordance with any
Environmental Law of any Hazardous Material at, on, under or within the
Property or any part thereof or (iii) any other condition,
circumstance, occurrence or event, any of which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, under any Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 9.3) on, or claim asserted against any
of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document; and
(g) of a material adverse change in the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 8.7 shall be accompanied by a statement
of a Responsible Officer of the U.S. Borrower setting forth details of the
occurrence referred to therein and stating what action the U.S. Borrower
proposes to take with respect thereto.
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8.8 Maintenance of Liens of the Security Documents. Promptly,
upon the reasonable request of any Lender, at the U.S. Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
8.9 Environmental Matters. (a) Comply in all material respects
with, and use all reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all Environmental Laws and
all requirements existing thereunder and obtain and comply in all material
respects with and maintain, and use all reasonable efforts to ensure that all
tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, other than such orders and directives as to which an appeal has been taken
in good faith and the pendency of any and all such appeals does not materially
and adversely affect the U.S. Borrower or any Subsidiary or the operations of
the U.S. Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders and their Affiliates, and their respective employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the U.S. Borrower or its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise solely
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
8.10 Security Documents; Guarantee Supplement. Subject to
subsection 13.19, (a) within 60 days after the Closing Date, at its own expense,
(i) cause 65% of the capital stock of Xxxx Germany to be pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, and (ii) cause the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, to receive, with a
counterpart for each Lender, a legal opinion of German counsel acceptable to the
Administrative Agent covering such matters in respect of such pledge agreement
as the Administrative Agent shall reasonably request.
(b) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 8.1(a) or (b),
for any fiscal period ending on or after December 31, 1999, cause (i) all of the
capital stock owned directly or indirectly by the U.S.
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Borrower of each of the U.S. Borrower's direct or indirect Domestic Subsidiaries
which on the date of such financial statements constituted at least 10% of
Consolidated Assets or for the twelve month period ended on the date of such
financial statements represented at least 10% of Consolidated Revenues to be
pledged to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, pursuant to a pledge agreement in form and substance
satisfactory to the Administrative Agent, (ii) 65% of the capital stock (or such
lesser amount as may be owned by the U.S. Borrower) of each of the U.S.
Borrower's direct Foreign Subsidiaries which on the date of such financial
statements constituted at least 10% of Consolidated Assets or for the twelve
month period ended on the date of such financial statements represented at least
10% of Consolidated Revenues to be pledged to the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, pursuant to a pledge
agreement in form and substance satisfactory to the Administrative Agent, and
(iii) the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, to receive, with a counterpart for each Lender, legal
opinions of counsel to the U.S. Borrower acceptable to the Administrative Agent
covering such matters in respect of such pledges as the Administrative Agent
shall reasonably request.
(c) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 8.1(a) or (b)
for any fiscal period ending on or after December 31, 1999, cause (i) each of
the U.S. Borrower's direct and indirect Domestic Subsidiaries which on the date
of such financial statements constituted 10% of Consolidated Assets or for the
twelve month period ended on the date of such financial statements represented
at least 10% of Consolidated Revenues to execute and deliver a Guarantee
Supplement to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, and (ii) the Administrative Agent, in its capacity as
Agent pursuant to the Intercreditor Agreement, to receive, with a counterpart
for each Lender, opinions of counsel to the U.S. Borrower, in form and substance
satisfactory to the Administrative Agent, covering such matters in respect of
the Subsidiary Guarantee as the Administrative Agent shall reasonably request;
provided, that, notwithstanding the foregoing, a Domestic Subsidiary shall not
be required to execute and deliver a Guarantee Supplement or otherwise become a
party to the Subsidiary Guarantee if (x) it is a holding company whose only
material asset consists of capital stock of one or more Foreign Subsidiaries and
(y) the capital stock of such Domestic Subsidiary is pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement.
(d) (i) Cause to be pledged to the Administrative Agent, in
its capacity as Agent pursuant to the Intercreditor Agreement, on the Closing
Date 100% of the Capital Stock of each Domestic Subsidiary which would have
constituted more than 10% of Consolidated Assets on December 31, 1998 or
represented at least 10% of Consolidated Revenues for the twelve-month period
ended on December 31, 1998, and (ii) cause each Domestic Subsidiary described in
the foregoing clause (i) to be Subsidiary Guarantors on the Closing Date;
provided, that (A) Xxxx Corporation (Germany) Ltd. shall not be required to be a
Subsidiary Guarantor and the U.S. Borrower shall not be required to pledge its
Capital Stock and (B) Xxxx Corporation XXXX and Interiors shall not be required
to be a Subsidiary Guarantor and the U.S. Borrower shall not be required to
cause its Capital Stock to be pledged unless Xxxx Corporation XXXX and Interiors
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meets the tests set forth in paragraph (c) above in respect of any fiscal period
ending on or after December 31, 1999.
(e) For purposes of calculating Consolidated Assets and
Consolidated Revenues pursuant to the foregoing paragraphs (b), (c) and (d) for
any date on or prior to March 31, 2000, or for twelve-month periods ended on or
prior to March 31, 2000, the assets and revenues of Xxxx Corporation Automotive
Holdings shall be included on a pro forma basis as if the UT Automotive
Acquisition had occurred on the first day of the relevant period.
SECTION 9. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan remains outstanding and
unpaid or any other amount is owing to any Lender or either Administrative Agent
hereunder or under any other Loan Document, the U.S. Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:
9.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated
Operating Profit for any four consecutive fiscal quarters ending during any
period set forth below to (ii) Consolidated Interest Expense for such four
consecutive fiscal quarters, to be less than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing - December 31, 1999 2.75x
January 1, 2000 - December 31, 2000 3.00x
January 1, 2001 - December 31, 2001 3.25x
Thereafter 3.50x
;provided, that in calculating the foregoing ratio for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99, 12/31/99 and
3/31/00, Consolidated Interest Expense shall be determined giving pro forma
effect to the aggregate principal amount of Indebtedness incurred in connection
with the UT Automotive Acquisition (less the aggregate net cash proceeds
received by the U.S. Borrower in respect of the sale of any part of the business
acquired in connection with the UT Automotive Acquisition) as if such
Indebtedness had been incurred on the first day of the relevant period, and in
making such calculation, the interest rate assumed to be applicable to such
Indebtedness shall be (i) with respect to $1,400,000,000 of such Indebtedness,
the weighted average interest rate applicable during the last fiscal quarter in
such period to loans outstanding under the Term Loan Agreement and/or the debt
securities that refinance the loans under the Term Loan Agreement and (ii) with
respect to the remainder of such Indebtedness, the weighted average interest
rate applicable during the last fiscal quarter in such period to Loans in
Dollars under this Agreement.
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(b) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating Profit for the four consecutive fiscal
quarters then ended to be greater than the ratio set forth opposite such period
below:
Period Ratio
------ -----
Closing - June 30, 2000 4.50x
July 1, 2000 through December 31, 2001 4.00x
Thereafter 3.75x
9.2 Limitation on Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness in respect of the Loans and other
obligations arising under this Agreement and (ii) Indebtedness under
the Other Credit Agreements and, without duplication, Indebtedness of
any Subsidiary backed by letters of credit issued under either of the
Other Credit Agreements;
(b) Indebtedness under the Subsidiary Guarantee and any Bond
Guarantee;
(c) Indebtedness in respect of Interest Rate Agreement
Obligations and Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) intercompany Indebtedness permitted by subsection 9.9; and
(f) other Indebtedness, subject to the provisions of
subsection 9.8.
9.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except (subject, in the case of Liens described in
paragraphs (o) through (t) below, to the provisions of subsection 9.8):
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the U.S.
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization);
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary
course of business relating to obligations not overdue for a period of
more than 60 days or which are bonded or being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation, including any Lien securing letters of credit issued in
the ordinary course of business in connection therewith and deposits
securing liabilities to insurance carriers under insurance and
self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of the business of the U.S.
Borrower and its Subsidiaries taken as a whole;
(f) Liens created pursuant to the Security Documents;
(g) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$40,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
60 days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(h) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business;
(i) statutory Liens and rights of offset arising in the
ordinary course of business of the U.S. Borrower and its Subsidiaries;
(j) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than
the U.S. Borrower or any Subsidiary of the U.S. Borrower) under any
lease;
(k) Liens arising in connection with Industrial Development
Bonds or other industrial development, pollution control or other
tax-favored or government-sponsored financing transactions, provided
that such liens do not at any time encumber any property, other than
the property financed by such transaction and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in
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connection with such transactions (in each case, together with
improvements and attachments thereto);
(l) Liens on receivables subject to a Receivable Financing
Transaction;
(m) Liens securing Indebtedness permitted by subsection 9.2(c)
and any other Indebtedness in respect of Interest Rate Agreement
Obligations or Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons, provided that such Liens run in favor of a Lender
hereunder or a lender under one of the Other Credit Agreements;
(n) Extensions, renewals and replacements of any Lien
described in subsections 9.3(a) through (m) above;
(o) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the U.S. Borrower and its
Subsidiaries permitted by subsection 9.2 incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the purchase price of such property;
(p) Liens securing the Indebtedness of Foreign Subsidiaries
permitted by subsection 9.2, provided that such Liens permitted by this
paragraph do not at any time encumber any property located in the
United States;
(q) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
(r) Liens securing Acquired Indebtedness permitted by
subsection 9.2, provided, that (i) such Liens existed at the time such
corporation became a Subsidiary or such assets were acquired and were
not created in anticipation thereof, (ii) any such Lien does not by its
terms cover any property or assets after the time such corporation
became or becomes a Subsidiary or such assets were acquired which were
not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the
time such corporation became or becomes a Subsidiary or such assets
were acquired;
(s) except as otherwise expressly provided for in subsections
9.3(a) through (n), Liens securing Indebtedness of Domestic
Subsidiaries permitted under subsection 9.2;
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(t) other Liens; and
(u) extensions, renewals and replacements of any Lien
described in subsections 9.3(o) through (t) above.
9.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the U.S. Borrower under this
Agreement and the Amended and Restated Credit Agreement and of the
Domestic Subsidiaries under the Subsidiary Guarantee, and any Bond
Guarantee;
(b) Guarantee Obligations of any Subsidiary Guarantor in
respect of obligations of the Borrower or any other Subsidiary
Guarantor;
(c) Guarantee Obligations of any Subsidiary that is not a
Subsidiary Guarantor in respect of obligations of any other Subsidiary
that is not a Subsidiary Guarantor;
(d) Guarantee Obligations in respect of operating leases;
(e) Guarantee Obligations of the U.S. Borrower in respect of
obligations of any Subsidiary that are permitted to be incurred under
this Agreement; and
(f) other Guarantee Obligations, subject to the provisions of
subsection 9.8;
9.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the U.S. Borrower may be merged or
consolidated with or into the U.S. Borrower (provided that the U.S.
Borrower shall be the continuing or surviving corporation) or with or
into any one or more other Subsidiaries of the U.S.
Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the U.S. Borrower or any other Subsidiary of the U.S.
Borrower;
(c) the U.S. Borrower may merge or consolidate with any
Person, provided that (A) the U.S. Borrower is the surviving
corporation of such merger or consolidation, (B) after giving effect
thereto, no Default or Event of Default is in existence and (C) if such
merger or consolidation had occurred on the first day of the period of
four full fiscal quarters most recently ended prior to the date of such
event, the U.S. Borrower would
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have been in compliance with subsection 9.1 during such period of four
full fiscal quarters; and
(d) any Subsidiary may be merged, consolidated or amalgamated
with or into any Person, or may sell, lease, transfer or otherwise
dispose of its assets (upon voluntary liquidation, dissolution or
otherwise) to any Person or may liquidate, wind up or dissolve itself
if (A) after giving effect thereto, no Default or Event of Default is
in existence and (B) if such merger, consolidation, amalgamation, sale,
lease, transfer or other disposition had occurred on the first day of
the period of four fiscal quarters most recently ended prior to the
date of such event, the U.S. Borrower would have been in compliance
with subsection 9.1 during such period of four full fiscal quarters.
9.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, any of its property, business or assets
(including, without limitation, receivables and leasehold interests) whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's capital stock to any Person other than the U.S.
Borrower or any Wholly Owned Subsidiary (or to qualify directors if required by
applicable law or similar de minimis issuances of capital stock to comply with
Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out
property or other property not necessary for operations disposed of in
the ordinary course of business; provided that (i) the Net Proceeds of
each such transaction are applied to obtain a replacement item or items
of property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $20,000,000 in the aggregate in any one fiscal year of
the U.S. Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary
course of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
(d) the sale by any Foreign Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(f) any sale or other disposition permitted under subsections
9.5 or 9.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in
the ordinary course of business;
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(i) any sale, contribution or transfer to or by a Special
Purpose Subsidiary in connection with a Receivable Financing
Transaction; and
(j) any sale or other disposition of assets if (A) after
giving effect thereto and the application of the proceeds therefrom, no
Default or Event of Default is in existence and (B) if such sale or
other disposition had occurred on the first day of the period of four
full final quarters most recently ended prior to the date of such sale
or other disposition, the U.S. Borrower would have been in compliance
with subsection 9.1 during such period of four full fiscal quarters.
9.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the U.S. Borrower or
any warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the U.S.
Borrower or any Subsidiary, except for (a) (i) payment by the U.S. Borrower of
amounts then owing to management personnel of the U.S. Borrower pursuant to the
terms of their respective employment contracts or under any employee benefit
plan, (ii) mandatory purchases by the U.S. Borrower of its common stock from
management personnel pursuant to the terms of their respective employment
agreements or any employee benefit plan, (iii) additional repurchases by the
U.S. Borrower of its common stock from management personnel, and other officers
or employees of the U.S. Borrower or any Subsidiary in an amount not to exceed
$35,000,000 in the aggregate and (iv) the purchase, redemption or retirement of
any shares of any capital stock of the U.S. Borrower or options to purchase
capital stock of the U.S. Borrower in connection with the exercise of
outstanding stock options, (b) if no Default or Event of Default has occurred
and is continuing (or would occur and be continuing after giving effect thereto)
when any such dividend is declared by the Board of Directors of the U.S.
Borrower or such payment is made on the account of the purchase of capital stock
of the U.S. Borrower, cash dividends on the U.S. Borrower's capital stock or
such payments made on the account of the purchase of capital stock of the U.S.
Borrower not to exceed, in the aggregate, in any fiscal quarter (the "Payment
Quarter") an amount equal to the greater of (i) $25,000,000 and (ii) (A) 50%
(100% if the U.S. Borrower shall have attained Investment Grade Status) of
Consolidated Net Income of the U.S. Borrower and its consolidated Subsidiaries
for the period of four consecutive fiscal quarters ended immediately prior to
the Payment Quarter (such period of four quarters being the "Calculation Period"
in respect of such Payment Quarter), less (B) the cash amount of all (I)
dividends paid and redemptions made by the U.S. Borrower during such Calculation
Period in respect of capital stock and (II) payments made on the account of the
purchase of capital stock of the U.S. Borrower during such Calculation Period,
but only to the extent permitted by the terms of the outstanding Subordinated
Debt, and (c) dividends or distributions in the form of additional shares of
such capital stock or in options, warrants or other rights to purchase capital
stock.
9.8 Limitation on Subsidiary and Secured Indebtedness. Create,
incur, assume or suffer to exist Subsidiary and Secured Indebtedness in an
aggregate principal amount at any time outstanding exceeding 10% of Consolidated
Assets at such time; or create, incur, assume or
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suffer to exist any Indebtedness that constitutes Subsidiary and Secured
Indebtedness and that is secured by any Lien on any property, assets or
receivables of the U.S. Borrower or any of its Subsidiaries (other than Liens
permitted by paragraphs (a) through (n) of subsection 9.3) in an aggregate
principal amount at any time exceeding 5% of Consolidated Assets at such time.
9.9 Limitation on Investments, Loans and Advances. Make or
suffer to exist any advance, loan, extension of credit or capital contribution
to, or purchase any stock, bonds, notes, debentures or other securities of or
any assets constituting a business unit of, or make any other investment in, any
Person, or acquire or invest in any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) capital contributions and equity investments made prior to
the date hereof in any Subsidiary or Special Entity and any
recapitalization thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any
Subsidiary to the U.S. Borrower and (ii) loans, advances, extensions of
credit, capital contributions and other investments by the U.S.
Borrower or any Subsidiary to or in any Subsidiary;
(f) the purchase by the U.S. Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the
amount which the U.S. Borrower or such Subsidiary would otherwise be
permitted to lend or contribute to such Foreign Subsidiaries pursuant
to this subsection 9.9;
(g) the U.S. Borrower and its Subsidiaries may acquire or
invest in any Special Entities or the assets constituting a business
unit of any Person that would be a Special Entity, provided that the
aggregate purchase price of such acquisitions after the date hereof
does not exceed $400,000,000 (less, in the case of Special Entities
that become Subsidiaries of the U.S. Borrower, the aggregate amount of
Indebtedness of such Special Entities at the time such Special Entities
are acquired) per fiscal year; and provided, further, that up to
$100,000,000 of such permitted amount which is not expended in any
fiscal year may be carried over for such acquisitions in any subsequent
fiscal year; and provided, still further, that no more than
$150,000,000 per fiscal year of any such permitted amount may be
expended to acquire stock or other evidence of beneficial ownership of
Special Entities that do not become Subsidiaries of the U.S. Borrower;
(h) advances to employees in the ordinary course of business
for travel, relocation and related expenses;
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(i) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the U.S. Borrower or any Subsidiary in
settlement of delinquent obligations of, and other disputes with,
customers, suppliers and such other Persons arising in the ordinary
course of business;
(j) advances, loans, extensions of credit or other investments
held by a Person at the time it becomes a Subsidiary of the U.S.
Borrower in connection with an acquisition permitted hereunder;
provided, that such advances, loans, extensions of credit or other
investments have not been made in anticipation of such acquisition;
(k) other investments, advances, loans, extensions of credit
and capital contributions by the U.S. Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding;
(l) the UT Automotive Acquisition; and
(m) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as (i)
no Default or Event of Default shall have occurred and be continuing
before and after giving effect to such transaction, (ii) the U.S.
Borrower would be in pro forma compliance with subsection 9.1 after
giving effect to such transaction, (iii) after giving pro forma effect
to such transaction as if it had occurred on the first day of the
period of four consecutive fiscal quarters most recently ended prior to
the date of such transaction, the ratio of (a) Consolidated
Indebtedness on the date of, and after giving effect to, such
transaction to (b) Consolidated Operating Profit for such period of
four consecutive fiscal quarters would be less than 4.00 and (iv) such
transaction is not the result of a hostile bid made by the U.S.
Borrower or its Subsidiaries.
9.10 Limitation on Optional Payments and Modification of Debt
Instruments; Certain Derivative Transactions. (a) Prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any payment on account of any
principal of, interest on, or premium payable in connection with the prepayment,
redemption or retirement of any outstanding Subordinated Debt, except that the
U.S. Borrower may prepay, purchase or redeem Subordinated Debt with the proceeds
of the issuance of other subordinated Indebtedness of the U.S. Borrower or
capital stock of the U.S. Borrower; provided that, in the case of the issuance
of subordinated Indebtedness, either (i) the principal terms of such other
subordinated Indebtedness are no more restrictive, taken as a whole, to the U.S.
Borrower and its Subsidiaries than the principal terms of the Subordinated Debt
being repaid, purchased or redeemed or (ii) the terms and conditions of the
other subordinated Indebtedness are reasonably satisfactory to the
Administrative Agent; provided, further, that, notwithstanding any provision
contained in this subsection 14.10, if no Default or Event of Default has
occurred and is continuing or would occur and be continuing as a result of the
following, the Subordinated Debt may be prepaid at any time without restriction;
(b) enter into any derivative transaction or similar transaction obligating the
U.S. Borrower or any of its Subsidiaries to make any payment to any other Person
as a result of any change in value or
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market price of Subordinated Debt or Capital Stock of the U.S. Borrower; or (c)
without the consent of the Administrative Agent, amend, modify or change, or
consent or agree to any amendment, modification or change to any of the terms of
any Subordinated Debt (except that without the consent of the Administrative
Agent or any Lender, the terms of the Subordinated Debt may be amended, modified
or changed if such amendment, modification or change would extend the maturity
or reduce the amount of any payment of principal thereof, would reduce the rate
or extend the date for payment of interest thereon, would eliminate covenants
(other than covenants with respect to subordination to Indebtedness under this
Agreement and, if applicable, the Subsidiary Guarantee) or defaults in such
Subordinated Debt or would make such covenants or defaults less restrictive or
make any other change that would not require the consent of the holders of such
Subordinated Debt).
9.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement, or such transactions are in the
ordinary course of the U.S. Borrower's or such Subsidiary's business and are
upon fair and reasonable terms no less favorable to the U.S. Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate; provided, however, that the
U.S. Borrower may engage, The Cypress Group, LLC or any Affiliate of The Cypress
Group, LLC as financial advisor, underwriter, broker, dealer-manager or finder
in connection with any transaction at the then customary market rates for
similar services.
9.12 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, if such
amendment would reasonably be expected to impair the ability of the Loan Parties
to perform their respective obligations under the Loan Documents to which they
are a party.
9.13 Fiscal Year. Permit the fiscal year of the U.S. Borrower
to end on a day other than December 31.
9.14 Limitation on Restrictions Affecting Subsidiaries. Enter
into any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the U.S. Borrower or any
Subsidiary, (b) make loans or advances to the U.S. Borrower or any Subsidiary or
(c) transfer any of its properties or assets to the U.S. Borrower or any
Subsidiary, except (i) prohibitions or restrictions under applicable law, (ii)
agreements and instruments governing or evidencing secured Indebtedness
otherwise permitted to be incurred under this Agreement that limits the right of
the borrower to (A) dispose of the assets securing such Indebtedness or (B) in
the case of any Foreign Subsidiary, to make dividends or distributions, (iii)
prohibitions or restrictions under agreements relating to Acquired Indebtedness
and any refinancings thereof, (iv) prohibitions or restrictions with respect to
the distribution or dispositions of assets or property in joint venture and
similar agreements entered into in the ordinary course of business, (v)
customary non-assignment provisions in leases and other agreements entered into
in the ordinary course of business, (vi) customary net worth provisions
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contained in leases and other agreements entered into by a Subsidiary in the
ordinary course of business, (vii) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of the assets or stock of such Subsidiary, (viii)(x) any such
restrictions existing by reasons of Contractual Obligations listed on Schedule
VIII or (y) Contractual Obligations in effect on the Closing Date affecting
Subsidiaries acquired in the UT Automotive Acquisition, (ix) any restrictions on
a Special Purpose Subsidiary, (x) restrictions on cash or other deposits or net
worth provisions under customer and supply agreements entered into in the
ordinary course of business, and (xi) any restrictions contained in any
instrument or agreement that refinances any Indebtedness or other obligations
which contains similar restrictions.
9.15 Special Purpose Subsidiary. Permit (a) any Special
Purpose Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the U.S.
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary) or
any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise.
9.16 Interest Rate Agreements. Enter into, or become a party
to, any Interest Rate Agreement that is speculative in nature.
SECTION 10. GUARANTEE
10.1 Guarantee. (a) The U.S. Borrower hereby unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable benefit
of the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by each of the other Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) The U.S. Borrower further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel, provided that the U.S. Borrower shall only be required to pay the
fees and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders and (iii) one counsel for the Administrative Agent and
the Multicurrency Lenders in the jurisdiction of each Foreign Subsidiary
Borrower) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the U.S. Borrower under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto any Borrower may be free from any
Obligations.
(c) No payment or payments made by any Borrower or any other
Person or received or collected by the Administrative Agent or any Lender from
any Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to
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modify, reduce, release or otherwise affect the liability of the U.S. Borrower
hereunder which shall, notwithstanding any such payment or payments, remain
liable hereunder for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or
from time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent and such Lender in writing that such payment is made under this Section
for such purpose.
10.2 No Subrogation. Notwithstanding any payment or payments
made by the U.S. Borrower hereunder, or any set-off or application of funds of
the U.S. Borrower by the Administrative Agent or any Lender, the U.S. Borrower
shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the other Borrowers or against any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Obligations, nor shall the U.S.
Borrower seek or be entitled to seek any contribution or reimbursement from the
other Borrowers in respect of payments made by the U.S. Borrower hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the other
Borrowers on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the U.S. Borrower on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the U.S. Borrower in trust for the
Administrative Agent and the Lenders, segregated from other funds of the U.S.
Borrower, and shall, forthwith upon receipt by the U.S. Borrower, be turned over
to the Administrative Agent in the exact form received by the U.S. Borrower
(duly indorsed by the U.S. Borrower to the Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the Administrative Agent may determine.
10.3 Amendments, etc. with respect to the Obligations; Waiver
of Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the U.S. Borrower, and without
notice to or further assent by the U.S. Borrower, any demand for payment of any
of the Obligations made by the Administrative Agent or any Lender may be
rescinded by such Administrative Agent or such Lender, and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and any Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent or the
Lenders (or the Majority Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Administrative Agent or any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Agreement or any property subject thereto. When making
any demand hereunder against the
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U.S. Borrower, the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on any other Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from any such Borrower or any such other
guarantor or any release of such Borrower or such other guarantor shall not
relieve the U.S. Borrower of its obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of the Administrative Agent or any Lender against the U.S. Borrower. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
10.4 Guarantee Absolute and Unconditional. The U.S. Borrower
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Agreement or acceptance of this Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Agreement; and all dealings between the Borrowers and the U.S.
Borrower and the other Borrowers, on the one hand, and the Administrative Agent
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Agreement. The U.S. Borrower
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the other Borrowers and the U.S. Borrower with respect
to the Obligations. This Section 10 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrowers (other than the U.S. Borrower)
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers or the U.S.
Borrower) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrowers for the Obligations, or of the U.S. Borrower
under this Section 10, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against the Borrower, the Administrative Agent and
any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the other Borrowers or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
such other Borrowers or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the other Borrowers or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the U.S.
Borrower of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the U.S. Borrower. This Section 10
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the U.S. Borrower and its successors and assigns,
and shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the U.S. Borrower under this Agreement shall
have been satisfied by payment in full and the
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Commitments shall be terminated, notwithstanding that from time to time during
the term of this Agreement the Borrowers may be free from any Obligations.
10.5 Reinstatement. This Section 10 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
10.6 Payments. The U.S. Borrower hereby agrees that all
payments required to be made by it hereunder will be made to the Administrative
Agent, for the benefit of the Administrative Agent and the Lenders, as the case
may be, without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
SECTION 11. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any
Loans when due (whether at the stated maturity, by acceleration or
otherwise) in accordance with the terms thereof or hereof or (ii) any
interest on any Loans, or any fee or other amount payable hereunder,
within five days after any such interest, fee or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
U.S. Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any negative covenant contained in
Section 9; or
(d) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the U.S. Borrower or any other Loan Party
shall so assert; or any security interest created by any of the
Security Documents shall cease to be enforceable and of the same
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effect and priority purported to be created thereby, except,
in each case, as provided in subsection 13.19; or
(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert, except as provided in subsection 13.19; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The U.S. Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Interest Rate Agreement
Obligation, in any case where the principal amount thereof then
outstanding exceeds $40,000,000 beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or agreement under
which such Indebtedness, Guarantee Obligation or Interest Rate
Agreement Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(i) (i) The U.S. Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the U.S. Borrower or any Material Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the U.S. Borrower or any Material Subsidiary any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the U.S. Borrower or any Material Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its
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assets which results in the entry of an order for any such relief which
shall not have been vacated,discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the U.S. Borrower
or any Material Subsidiary shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the U.S.
Borrower or any Material Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(j) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the U.S. Borrower or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would
reasonably be expected to subject the U.S. Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial
or other condition of the U.S. Borrower and its Subsidiaries taken as a
whole; or
(k) One or more judgments or decrees shall be entered against
the U.S. Borrower or any of its Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance) of $40,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of
the U.S. Borrower having ordinary voting power in the election of
directors or (B) shall obtain the legal right (whether or not
exercised) to elect a majority of the U.S. Borrower's directors or (ii)
the Board of Directors of the U.S. Borrower shall not consist of a
majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect to the U.S. Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (B) if such
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event is any other Event of Default, any of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Administrative Agent may, or
upon therequest of the Majority Lenders, the Administrative Agent shall,
by notice to the U.S. Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) with the
consent of the Majority Lenders, the Administrative Agent may, or upon the
direction of the Majority Lenders, the Administrative Agent shall, by notice of
default to the U.S. Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable and (iii)the Administrative Agent may, and upon the direction of the
Majority Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and/or the other Loan Documents.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 12. THE ADMINISTRATIVE AGENT; DOCUMENTATION
AGENT; CO-SYNDICATION AGENTS; MANAGING
AGENTS; LEAD MANAGERS AND CO-AGENTS
12.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
Chase to act as the Administrative Agent of such Lender, and to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent, by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
12.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Borrower or other Person or any
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officer thereof contained in this Agreement or any other Loan Document or in
any certificate,report, statement or other document referred to or provided for
in, or received by such Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of a Borrower or any other Person to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document or to inspect the properties,
books or records of the Borrowers.
12.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified as between itself and the Lenders in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
12.6 Non-Reliance on Administrative Agent and Other Lender.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
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of any Borrower, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
12.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to its Aggregate Total Outstandings on the date on which
indemnification is sought from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
12.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made or renewed by the
Administrative Agent, and any Note issued to it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
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12.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from
among the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be approved by the U.S. Borrower (such
approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any resigning Administrative
Agent's resignation as Administrative Agent, the provisions of this subsection
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
12.10 The Managing Agents, Co-Agents and Lead Managers,
Documentation Agent and Co-Syndication Agents. Each Lender, the Documentation
Agent and each Managing Agent, Co-Agent, Lead Manager and Co-Syndication Agent
acknowledge that the Documentation Agent and each Managing Agent, Co-Agent, Lead
Manager and Co-Syndication Agent, in such capacity, shall have no duties or
responsibilities, and shall incur no liabilities, under this Agreement or the
other Loan Documents in its respective capacity as such.
12.11 Actions Under Security Documents. With respect to any
action under or in respect of the Security Documents that the provisions of this
Agreement permit or require the Administrative Agent to take only with the
consent, or upon the direction, of all of the Lenders or the Majority Lenders,
as the case may be, the Lenders acknowledge that the Administrative Agent shall
be required to take such action only if such action is approved by, in addition
to all the Lenders or the Majority Lenders, as the case may be, such instructing
group of lenders under each of the Other Credit Agreements as the Other Credit
Agreements require for such action.
12.12 Intercreditor Agreement. In the event that a Refinancing
Agreement is entered into, the Administrative Agent is authorized and directed
to enter into an intercreditor agreement reasonably satisfactory to the
Administrative Agent as contemplated by the definition of Refinancing
Agreement set forth in subsection 1.1, and to enter into such amendments, if
any, to the Subsidiary Guarantee and the Security Documents as it shall
reasonably deem required in order to give effect to such intercreditor
agreement, provided, that, in any case, the Indebtedness of the U.S. Borrower
hereunder and under the Other Credit Agreements (including any Refinancing
Agreement in respect of either of the Other Credit Agreements) shall be pari
passu and equally and ratably secured.
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SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 13.1. The Majority Lenders may, or,with the written consent of
the Majority Lenders, the Administrative Agent may, from time to time, (i) enter
into with the U.S. Borrower written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights or obligations of the Lenders or of the U.S. Borrower hereunder or
thereunder or (ii) waive at the U.S. Borrower's request, on such terms and
conditions as the Majority Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(A) reduce the amount or extend the scheduled date of
maturity of any Loan or of any scheduled installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lender's Multicurrency Commitment or
Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this subsection 13.1 or reduce the percentages specified in the
definition of "Majority Lenders" or consent to the assignment or
transfer by the U.S. Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without
the consent of all the Lenders or reduce the percentages specified in
the definitions of "Majority Revolving Credit Lenders, Majority Term
Loan Lenders or Majority Multicurrency Lenders without the consent
of all of the Revolving Credit Lenders, Term Loan Lenders or
Multicurrency Lenders, as the case may be;
(C) amend, supplement, modify or waive any provision of
Section 2 or any other provision of this Agreement governing the rights
or obligations of the Administrative Agent without the consent of the
then Administrative Agent;
(D) amend, modify or waive any provision of subsection 5.8
without the consent of each Lender affected thereby; or
(E) release all or substantially all of the guarantees
contained in Section 10 and under the Subsidiary Guarantee or all or
substantially all of the Collateral under, and as defined in, the
Security Documents without the consent of each Lender other than as
permitted under subsection 13.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 13.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the
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Administrative Agent, and all future holders of the Loans. In the case of any
waiver, the Borrowers, the Lenders, the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a), Schedules II and III may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of
the U.S. Borrower as additional Foreign Subsidiary Borrowers upon (A)
execution and delivery by the U.S. Borrower, any such Foreign
Subsidiary Borrower and the Administrative Agent, of a Joinder
Agreement providing for any such Subsidiary to become a Foreign
Subsidiary Borrower, and (B) delivery to the Administrative Agent of
(I) a Foreign Subsidiary Opinion in respect of such additional Foreign
Subsidiary Borrower and (II) such other documents with respect thereto
as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any
Subsidiary as a Foreign Subsidiary Borrower upon (A) execution and
delivery by the U.S. Borrower of a written amendment providing for such
amendment and (B) repayment in full of all outstanding Loans of such
Foreign Subsidiary Borrower.
(iii) Schedule III will be amended (A) to change
administrative information contained therein (other than any interest
rate definition, funding time, payment time or notice time contained
therein) or (B) to add Available Foreign Currencies (and related
interest rate definitions and administrative information) with the
approval of the Majority Multicurrency Lenders, in each case, upon
execution and delivery by the U.S. Borrower and the Administrative
Agent of a written amendment providing for such amendment.
(iv) Schedule III will be amended to conform any funding
time, payment time or notice time contained therein to then-prevailing
market practices, upon execution and delivery by the U.S. Borrower and
the Administrative Agent of a written amendment providing for such
amendment.
(v) Schedule III will be amended to change any interest
rate definition contained therein, upon execution and delivery by the
U.S. Borrower, all the Multicurrency Lenders and the Administrative
Agent of a written amendment providing for such amendment.
(c) In addition to the amendments effected pursuant to the
foregoing paragraphs (a) and (b), this Agreement may be amended, or amended and
restated, contemporaneously with the occurrence of the Revolving Credit
Termination Date under (and as defined in) the Amended and Restated Credit
Agreement, at the request of the U.S. Borrower and with the consent of the
Administrative Agent but without the consent of any Lender or other party
hereto, solely to
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provide for the inclusion in this Agreement of provisions permitting the
Revolving Credit Commitments to be used for the issuance of letters of credit
and the making of swing line loans and money market swing line loans. The
provisions included in this Agreement pursuant to any such amendment or
amendment and restatement shall in each case be substantially equivalent to the
provisions in the Amended and Restated Credit Agreement relating to Letters of
Credit, Swing Line Loans and Money Market Rate Swing Line Loans (as such terms
are defined in the Amended and Restated Credit Agreement) mutatis mutandis.
Without limiting the foregoing, under this Agreement (i) the letter of credit
fee shall be equal to the Applicable Margin with respect to Revolving Credit
Loans which are Eurodollar Loans (less the fronting fee payable to the issuing
lender at the rate of 0.125% per annum), (ii) the swing line loans (other than
money market rate swing line loans) shall bear interest at the Alternate Base
Rate, and money market rate swing line loans shall bear interest at the money
market rate determined in accordance with the procedures equivalent to those
set forth in the Amended and Restated Credit Agreement with respect to Money
Market Rate Swing Line Loans, (iii) the maximum aggregate face amount of
letters of credit at any time outstanding shall not exceed $250,000,000, (iv)
the amount of the swing line commitment shall not exceed $150,000,000, (v)
Letters of Credit outstanding under the Amended and Restated Credit Agreement
on the date on which the amendment described in this paragraph becomes
effective shall become letters of credit under this Agreement and (vi) no
letters of credit outstanding under this Agreement shall have an expiry date
later than the Revolving Credit Termination Date. The Issuing Lender and Swing
Line Lender under the Amended and Restated Credit Agreement shall be the
issuing lender and swing line lender under this Agreement, and the Revolving
Credit Lenders shall acquire participating interests in, and shall receive fees
with respect to, letters of credit and swing line loans under this Agreement
under provisions substantially equivalent to the applicable provisions set
forth in the Amended and Restated Credit Agreement.
(d) The Administrative Agent shall give prompt notice to each
Lender of any amendment effected pursuant to subsection 13.1(b) or (c).
13.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrowers and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The U.S. Borrower: Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
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The Foreign
Subsidiary Borrowers: Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
The Administrative Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.3, 4.3, 5.2, 5.4 or 5.7 shall not
be effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Borrower, the Administrative
Agent, or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
13.5 Payment of Expenses and Taxes. The U.S. Borrower agrees
(a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and reasonable expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement, the Notes and the other Loan Documents and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the Notes and any such other
documents, including, without limitation, fees and disbursements of counsel to
the Administrative Agent and the reasonable fees and disbursements of counsel to
the several Lenders, and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective directors, officers, employees and
agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
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in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the Notes and the other Loan Documents, the use or proposed
use by the Borrowers of the proceeds of the Loans (all the foregoing,
collectively, the "indemnified liabilities"); provided that the U.S. Borrower
shall have no obligation hereunder to (i) the Administrative Agent with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or (ii) any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such Lender, in each case as finally determined by a court of competent
jurisdiction. The agreements in this subsection shall survive repayment of the
Loans and all other amounts payable hereunder.
13.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that no Borrower may
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
pursuant to which any Lender shall sell any such participating interest shall
provide that such Lender shall retain the sole right and responsibility to
exercise such Lender's rights and enforce the Borrowers' obligations hereunder,
including the right to consent to any amendment, supplement, modification or
waiver of any provision of this Agreement or any of the other Loan Documents,
provided that such participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver described in clause
(A) or (B) of the proviso to the second sentence of subsection 13.1(a) without
the consent of the Participant. Each Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement; provided that, in purchasing such
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participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 13.7(a)
as fully as if it were a Lender hereunder. Each Borrower agrees that each
Participant shall be entitled to the benefits of subsections 5.10, 5.11, 5.12
and 13.6 with respect to its participation in the Commitments and the Loans
outstanding from time to time hereunder as if it was a Lender; provided, that
no Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transfer or
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the U.S. Borrower (such consent not to be unreasonably
withheld) and the Administrative Agent (such consent not to be unreasonably
withheld), to an additional bank or financial institution (an "Assignee") all or
any part of its rights and obligations under this Agreement and the other Loan
Documents including, without limitation, its Commitments and Loans, pursuant to
an Assignment and Acceptance, substantially in the form of Exhibit K, executed
by such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the U.S. Borrower and the
Administrative Agent) and delivered to the Administrative Agent for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations under this Agreement in respect of
its Revolving Credit Loans and/or Revolving Credit Commitment to an Assignee,
such Lender shall assign proportionate interests in Multicurrency Loans and
Multicurrency Commitments (provided, that, with the consent of the U.S. Borrower
and the Administrative Agent, a Lender may assign portions of its Revolving
Credit Commitment without assigning a proportionate share of its Multicurrency
Commitment if either (A) such proportionate share of such Multicurrency
Commitment shall be assumed by another Lender or (B) if the U.S. Borrower so
agrees, such proportionate share of such Multicurrency Commitment shall be
terminated), (ii) in the case of any such assignment to an additional bank or
financial institution, the aggregate amount of any Revolving Credit Commitment
(or, if the Revolving Credit Commitments have terminated or expired, the
aggregate principal amount of any Revolving Credit Loans) and Term Loans being
assigned shall not be less than $10,000,000 (or (i) if less, the then
outstanding amount of such Lender's Revolving Credit Commitment and Term Loans
or (ii) such lesser amount as may be agreed by the U.S. Borrower and the
Administrative Agent), and after giving effect to such assignment such assignor
Lender, if it retains any Revolving Credit Commitment or Term Loans, shall
retain a Revolving Credit Commitment and Term Loans aggregating at least
$10,000,000. Upon such execution, delivery, acceptance and recording, from and
after the closing date determined pursuant to such Assignment and Acceptance,
(I) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with Commitments, rights in respect of Loans as set forth therein, and
(II) the assigning Lender thereunder shall be released from its obligations
under this Agreement to the extent that such obligations shall have been
expressly assumed by the Assignee pursuant to such Assignment and Acceptance
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding the
foregoing, no
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consent of the Borrower shall be required for any assignment
effected while an Event of Default under Section 11(i) is in existence.
(d) The Administrative Agent, on behalf of the Borrowers,
shall maintain at their respective addresses referred to in subsection 13.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time. The entries in the Register shall constitute
prima facie evidence of the information recorded therein, and the Borrowers, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the U.S. Borrowers
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 13.21.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a Lender to any Transferee which is
organized under the laws of any jurisdiction
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other than the United States or any state thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer, to
agree (for the benefit of the transferor Lender, the Administrative Agent and
the U.S. Borrower) to provide the transferor Lender (and, in the case of any
Transferee registered in the Register, the Administrative Agent and the U.S.
Borrower) the tax forms and other documents required to be delivered pursuant
to subsection 5.12(b) or (c) and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(i) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a Lender (other than a Lender) to any
Transferee, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to agree (for the benefit of the transferor
Lender, the Administrative Agent and the Foreign Subsidiary Borrowers) to
provide the transferor Lender, the Administrative Agent and the Foreign
Subsidiary Borrowers the tax forms and other documents required to be delivered
pursuant to subsection 5.12(c) and (e) and to comply from time to time with all
applicable laws and regulations with regard to such withholding tax exemption.
13.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans then
due and owing to it from any Borrower, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 11(i), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans
then due and owing to it from such Borrower, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans owing to it from such
Borrower, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of such Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
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13.8 Loan Conversion/Participations. (a) (i) On any Conversion
Date, to the extent not otherwise prohibited by a Requirement of Law or
otherwise, all Loans outstanding in any currency other than U.S. Dollars
("Loans to be Converted") shall be converted into U.S. Dollars (calculated on
the basis of the relevant Exchange Rates as of the Business Day immediately
preceding the Conversion Date) ("Converted Loans"), and (ii) on the Conversion
Date (with respect to Loans described in the foregoing clause (i)) (A) each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
in U.S. Dollars a participating interest in such Converted Loans in an amount
equal to its Conversion Sharing Percentage of the outstanding principal amount
of the Converted Loans, and (B) to the extent necessary to cause the Revolving
Outstandings Percentage of each Lender, after giving effect to the purchase and
sale of participating interests under the foregoing clause (ii), to equal its
Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Commitments), each Lender
severally, unconditionally and irrevocably agrees that it shall purchase or
sell a participating interest in Revolving Credit Loans then outstanding. Each
Lender will immediately transfer to the Administrative Agent, in immediately
available funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
Lender from which a participating interest is being purchased in the amount(s)
provided for in the preceding sentence. All Converted Loans shall bear interest
at the rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into U.S. Dollars in the manner contemplated by paragraph (a) of this
subsection 13.8, (i) the Administrative Agent shall determine the U.S. Dollar
Equivalent of the Loans to be Converted (calculated on the basis of the Exchange
Rate as of the Business Day immediately preceding the date on which such
conversion would otherwise occur pursuant to paragraph (a) of this subsection
13.8), (ii) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Loans to be Converted in an amount equal to its
Conversion Sharing Percentage of such Loans to be Converted and (iii) each
Lender shall purchase or sell participating interests as provided in paragraph
(a)(ii) of this subsection 13.8. Each Lender will immediately transfer to the
Administrative Agent, in immediately available funds, the amount(s) of its
participation(s), and the proceeds of such participation(s) shall be distributed
by the Administrative Agent to each relevant Lender in the amount(s) provided
for in the preceding sentence.
(c) To the extent any Taxes are required to be withheld from
any amounts payable by a Lender (the "First Lender") to another Lender (the
"Other Lender") in connection with its participating interest in any Converted
Loan, each Borrower, with respect to the relevant Loans made to it, shall be
required to pay increased amounts to the Other Lender receiving such payments
from the First Lender to the same extent they would be required under subsection
5.12 if such Borrower were making payments with respect to the participating
interest directly to the Other Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 13.8 have been taken, upon the notice of any Lender to the
Borrowers the following shall occur: (i) the U.S.
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Borrower (through the guarantee contained in Section 10) shall automatically be
deemed to have assumed the Converted Loans in which such Lender holds a
participation, (ii) any Loans outstanding in any currency other than U.S.
Dollars shall be converted into U.S. Dollars on the dates of such assumption
(calculated on the basis of the Exchange Rate on the Business Day immediately
preceding such date of assumption) and such Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans and (iii) such Loans
shall be assigned by the relevant Lender holding such Loans or obligations to
the Lender who gave the notice requesting such assumption by the U.S. Borrower.
13.9 Intercreditor Agreement. The Administrative Agent is
hereby authorized to enter into an intercreditor agreement, in form and
substance reasonably satisfactory to it, to allow up to $75,000,000 in loans
outstanding on the Closing Date and owing to Deutsche Bank AG New York Branch
and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their
respective affiliates, to be equally and ratably secured by the Collateral and
to benefit from guarantees from the Subsidiary Guarantors on a basis which is
pari passu with the Subsidiary Guarantee.
13.10 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be delivered to the
Borrowers and the Administrative Agent.
13.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.12 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
13.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
13.14 Submission to Jurisdiction; Waivers. (a)
Each Borrower hereby irrevocably and unconditionally:
(i)submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan
Document to which it is a party, or for recognition
97
91
and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii)agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 13.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto; and
(iv)agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(b) Each Foreign Subsidiary Borrower hereby irrevocably
appoints the U.S. Borrower as its agent for service of process in any proceeding
referred to in subsection 13.13(a) and agrees that service of process in any
such proceeding may be made by mailing or delivering a copy thereof to it care
of U.S. Borrower at its address for notice set forth in subsection 13.2.
13.15 Acknowledgement. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders,
on the one hand, and the U.S. Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
13.16 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
98
92
13.17 Power of Attorney. Each Foreign Subsidiary Borrower
hereby grants to U.S. Borrower an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Foreign Subsidiary Borrower
hereby explicitly acknowledges that the Administrative Agent and each Lender
have executed and delivered this Agreement and each other Loan Document to
which it is a party, and has performed its obligations under this Agreement and
each other Loan Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection. The
power of attorney granted by each Foreign Subsidiary Borrower hereunder is
coupled with an interest.
13.18 [Reserved].
13.19 Release of Collateral and Guarantees. (a) The Lenders
hereby agree with the U.S. Borrower, and hereby instruct the Administrative
Agent, that if (i) the U.S. Borrower attains Release Status, (ii) the
Administrative Agent has no actual knowledge of the existence of a Default,
(iii) the U.S. Borrower shall have delivered a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, and (iv) all Bond Guarantees shall have been
released or shall be released concurrently with the requested release of the
Subsidiary Guarantee, the Administrative Agent shall, at the request and expense
of the U.S. Borrower, take such actions as shall be reasonably requested by the
U.S. Borrower to release its security interest in all collateral held by it
pursuant to the Security Documents and to release all Subsidiary Guarantors from
their obligations under the Subsidiary Guarantee. In such event, the provisions
of subsection 8.10 shall be deemed terminated and of no further force or effect.
(b) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the Administrative Agent, that if (i) on any date the ratio of
Consolidated Indebtedness on such date to Consolidated Operating Profit for the
four consecutive fiscal quarters most recently ended, is less than 2.50 to 1.00,
(ii) the Administrative Agent has no actual knowledge of the existence of a
Default, (iii) the U.S. Borrower shall have delivered a certificate of a
Responsible Officer stating that such Responsible Officer has obtained no
knowledge of any Default or Event of Default, and (iv) all Bond Guarantees shall
have been released or shall be released simultaneously with the requested
release of the Subsidiary Guarantee, the Administrative Agent shall, at the
request and expense of the U.S. Borrower, take such actions as shall be
reasonably requested by the U.S. Borrower to release its security interest in
all collateral held by it pursuant to the Security Documents and to release all
Subsidiary Guarantors from their obligations under the Security Guarantee. In
such event, the provisions of subsection 8.10 shall be deemed terminated and of
no further force or effect.
(c) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the Administrative Agent, that if the U.S. Borrower shall have
delivered to the Administrative Agent written notice that it proposes to sell or
otherwise dispose of any Subsidiary whose stock is
99
93
pledged pursuant to a Pledge Agreement or which is a Subsidiary Guarantor, and
such disposition is permitted by this Agreement, the Administrative Agent
shall, at the request and expense of the U.S. Borrower, take such actions as
shall be reasonably requested by the U.S. Borrower to release its security
interest in the stock of such Subsidiary and to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees.
13.20 Judgment.(a) If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to any Lender,
such Lender agrees to remit to such Borrower such excess.
13.21 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the U.S. Borrower or any
Subsidiary in connection with this Agreement; provided, however, that any Lender
may disclose such information (a) at the request of any bank regulatory
authority or in connection with an examination of such Lender by any such
authority, (b) pursuant to subpoena or other court process, (c) when required to
do so in accordance with the provisions of any applicable law, (d) at the
discretion of any other Governmental Authority, (e) to such Lender's Affiliates,
independent auditors and other professional advisors or (f) to any Transferee or
potential Transferee; provided that such Transferee agrees to comply with the
provisions of this subsection 13.21.
13.22 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
100
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXX CORPORATION
By: /s/
----------------
Title:
101
XXXX CORPORATION SWEDEN AB
By: /s/
---------------------------
Title:
102
XXXX CORPORATION FRANCE SARL
By: /s/
--------------------------
Title:
103
XXXX CORPORATION ITALIA S.P.A.
By: /s/
-----------------------------
Title:
000
XXXXX XX XXXX - XXXXXXX XXXXXX
By:/s/
-------------------------------
Title:
105
XXXX CORPORATION BETEILIGUNGS GMBH
By:/s/
---------------------------------
Title:
106
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:/s/
---------------------------
Title:
000
XXXXX XX XXXX - XXXXXXX XXXXXX
By:/s/
-----------------------
Title:
000
XXX XXXX XX XXXX XXXXXX
By:/s/
----------------------------------
Title:
000
XXXXX XXXXXXXXX XXX XXXXXX X.X.X. XXX
XXXX BRANCH
By:/s/
--------------------------------
Title:
By:/s/
--------------------------------
Title:
110
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH
By: /s/
---------------------------
Title:
By: /s/
---------------------------
Title:
111
NBD BANK
By: /s/
-------------------------------------
Title:
112
BANK OF AMERICA NT & SA
By: /s/
------------------------------------
Title:
000
XXX XXXX XX XXX XXXX
By: /s/
------------------------------------
Title:
114
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/
------------------------------------
Title:
115
BANKERS TRUST COMPANY
By: /s/
------------------------------------
Title:
116
BANQUE NATIONALE DE PARIS
By: /s/
------------------------------------
Title:
000
XXXXX XXX XXXXXXXXXX XXXX, XXX., XXX
XXXX BRANCH
By: /s/
------------------------------------
Title:
118
CITICORP USA, INC., as Co-Syndication
Agent and as a Lender
By: /s/
------------------------------------
Title:
119
COMERICA BANK
By: /s/
------------------------------------
Title:
120
CREDIT AGRICOLE INDOSUEZ
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
121
CREDIT SUISSE FIRST BOSTON
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
122
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN
By: /s/
------------------------------------
Title:
123
FLEET NATIONAL BANK
By: /s/
------------------------------------
Title:
124
THE FUJI BANK, LIMITED
By: /s/
------------------------------------
Title:
125
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/
------------------------------------
Title:
000
XXXXXX XXXX XXX, XXX XXXX BRANCH
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
127
MICHIGAN NATIONAL BANK
By: /s/
------------------------------------
Title:
128
XXXXXX XXXXXXX SENIOR FUNDING, INC., as
Co-Syndication Agent and as a Lender
By: /s/
------------------------------------
Title:
129
PARIBAS
By: /s/
------------------------------------
Title:
000
XXXXX XXXX XX XXXXXX
By: /s/
------------------------------------
Title:
000
XXX XXXXX XXXX XX XXXXXXXX plc
By: /s/
------------------------------------
Title:
132
SKANDINAVISKA ENSKILDA BANKEN
By: /s/
------------------------------------
Title:
133
SOCIETE GENERALE
By: /s/
------------------------------------
Title:
000
XXXXXXXX XXXX, XXXXXXX
By: /s/
------------------------------------
Title:
000
XXXXXXX XXXXXXXX (XXXXX), INC., as
Documentation Agent and as a Lender
By: /s/
------------------------------------
Title:
TORONTO-DOMINION BANK EUROPE LTD., as a
Multicurrency Lender
By: /s/
------------------------------------
Title:
136
WACHOVIA BANK
By: /s/
------------------------------------
Title:
137
SCHEDULE I
COMMITMENTS; ADDRESSES
A. Revolving Credit Commitment, Multicurrency Commitments (U.S. Dollars)
and Term Loan Commitments
Revolving Credit Multicurrency Term Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
The Chase Manhattan Bank 23,500,000 23,500,000 23,500,000
Banca Di Roma - Chicago Branch 7,500,000 7,500,000
The Bank of Nova Scotia 23,500,000 10,000,000 23,500,000
Banca Nazionale Del Lavoro S.P.A. New
York Branch 12,500,000 12,500,000
Banco Espirito Santo E Comercial De Liboa,
Nassau Branch 5,000,000 5,000,000
NBD Bank 23,500,000 15,000,000 23,500,000
Bank of America NT & SA 23,500,000 19,000,000 23,500,000
The Bank of New York 20,000,000 20,000,000
The Bank of Tokyo-Mitsubishi Trust
Company 23,500,000 23,500,000
Bankers Trust Company 23,500,000 10,000,000 23,500,000
Banque Nationale De Paris 15,000,000 15,000,000
Xxxxx Xxx Commerical Bank, LTD., New
York Branch 7,500,000 7,500,000
Citicorp USA, Inc. 23,500,000 15,000,000 23,500,000
138
2
Revolving Credit Multicurrency Term Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Comerica Bank 20,000,000 20,000,000
Credit Agricole Indosuez 7,500,000 7,500,000 7,500,000
Credit Suisse First Boston 23,500,000 23,500,000
Erste Bank Der Oesterreichischen
Sparkassen 7,500,000 7,500,000
Fleet National Bank 12,500,000 12,500,000
The Fuji Bank, Limited 20,000,000 20,000,000
The Industrial Bank of Japan, Limited 20,000,000 20,000,000
Xxxxxx Bank plc, New York Branch 7,500,000 7,500,000
Michigan National Bank 7,500,000 3,500,000 7,500,000
Xxxxxx Xxxxxxx Senior Funding, Inc. 23,500,000 23,500,000
Paribas 7,500,000 5,000,000 7,500,000
Royal Bank of Canada 12,500,000 12,500,000
The Royal Bank of Scotland plc 20,000,000 16,500,000 20,000,000
Skandinaviska Enskilda Banken 12,500,000 12,500,000
Societe Generale 15,000,000 5,000,000 15,000,000
Suntrust Bank, Atlanta 15,000,000 10,000,000 15,000,000
Toronto Dominion (Texas), Inc. 23,500,000 15,000,000 23,500,000
Wachovia Bank 12,500,000 10,000,000 12,500,000
TOTAL 500,000,000 165,000,000 500,000,000
139
B. [RESERVED]
C. Addresses for Notices
BANCA DI ROMA - CHICAGO BRANCH
000 Xxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANK OF NOVA SCOTIA
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANCA NAZIONALE DEL LAVORO S.P.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA, NASSAU BRANCH]
NBD BANK
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANK OF AMERICA NT & SA
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000
XXX XXXX XX XXX XXXX
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
THE BANK OF TOKYO-MITSUBUSHI LTD., NEW YORK BRANCH
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANKERS TRUST COMPANY
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANQUE NATIONALE DE PARIS
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[XXXXX XXX COMMERCIAL BANK, LTD., NEW YORK BRANCH]
CITICORP USA, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
COMERICA BANK
Comerica Tower at Detroit Center
000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
141
CREDIT AGRICOLE INDOSUEZ
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CREDIT SUISSE FIRST BOSTON
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN]
FLEET NATIONAL BANK
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[THE FUJI BANK, LIMITED]
THE INDUSTRIAL BANK OF JAPAN, LIMITED
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX BANK PLC, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
MICHIGAN NATIONAL BANK
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
142
[XXXXXX XXXXXXX SENIOR FUNDING, INC.]
PARIBAS
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
ROYAL BANK OF CANADA
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[THE ROYAL BANK OF SCOTLAND PLC]
[SKANDINAVISKA ENSKILDA BANKEN]
Magnus Lejdftrom
Tel: (000) 000-0000
SOCIETE GENERALE
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx
Xxxxxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000/000-0000
SUNTRUST BANK ATLANTA
00 Xxxx Xxxxx
Xxxxxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000/000-0000
143
TD SECURITIES (USA) INC.
00 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx xx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WACHOVIA CORPORATE SERVICES, INC.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Katie Trocron
Tel: (404)
Fax: (000) 000-0000
144
SCHEDULE II
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
---------------- -------------
Xxxx Corporation Sweden AB Sweden
c/o Lear Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Lear France SARL France
c/o Lear Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxx Corporation GmbH & Co. KG Germany
c/o Lear Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxx Corporation Beteiligungs GmbH Germany
c/o Lear Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxx Corporation Italia S.p.A. Italy
c/o Lear Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
145
1
SCHEDULE III
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
A. Interest Rates for Each Currency
Sterling:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Sterling in the
Paris interbank market at or about 11:00 A.M., Paris
time, on the Quotation Day for such Interest Period
for delivery on the first day of such Interest Period
for the number of days comprised therein and in an
amount comparable to Chase's Multicurrency Commitment
Percentage of the applicable Multicurrency Loan.
Swedish Kroner:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Swedish Kroner in
the London interbank market at or about 11:00 A.M.,
London time, on the Quotation Day for such Interest
Period for delivery on the first day of such Interest
Period for the number of days comprised therein and
in an amount comparable to Chase's Multicurrency
Commitment Percentage of the applicable Multicurrency
Loan.
euro unit:
for any Interest Period in respect of any Tranche,
the rate per annum for deposits in euro for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on Telerate Page 3750 (or, if no such
quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London
time, on the Quotation Day of such Interest Period.
B. Funding Office, Funding Time, Payment Office, Payment Time for
Each Currency.
146
2
Sterling:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
4. Payment Time: 11:00 A.M., local time.
Swedish Kroner:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 52018519395
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Skandinaviska Enskilda Banken, Stockholm
Account No: 52018519395
4. Payment Time: 11:00 A.M., local time.
euro unit:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Xxxxxxxxx Xxxx XX, Xxxxxxxxx
0. Funding Time: 11:00 A.M., local time.
147
3
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Xxxxxxxxx Xxxx XX, Xxxxxxxxx
0. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxx
Telephone No: 00-000-000-0000
Fax No: 00-000-000-0000/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day in respect of
such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
borrowed, and Interest Periods.
D. Notice of Multicurrency Loan Continuation; Notice of
Prepayment:
1. Deliver to: Chase Manhattan International Limited
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxx
Telephone No: 00-000-000-0000
Fax No: 00-000-000-0000/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day for the next
Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
continued or prepaid, as the case may be, and Interest
Periods.
148
1
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Pledge Agreement, dated as of the date hereof, made by the
U.S. Borrower and Lear Operations Corporation pledging 100% of the stock of Lear
Operations Corporation and Xxxx Corporation Automotive Holdings in favor of the
General Administrative Agent, substantially in the form of Exhibit Q to the
Agreement.
2. Pledge Agreement to be entered into within 60 days after
the Closing Date in respect of 65% of the capital stock of Lear Germany.
149
1
SCHEDULE V
[RESERVED]
150
2
SCHEDULE VI
SUBSIDIARIES(1)
DOMESTIC SUBSIDIARIES:
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Amtex, Inc. Pennsylvania 50% Xxxx Corporation
Xxxxx Manufacturing Company Ohio 100% Xxxx Corporation Automotive Holdings
Corporate Eagle Two LLC 50% LCT, Inc.
Detroit Automotive Interiors L.L.C. Michigan 49% Xxxx Corporation
Essex International de Chihuahua, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
General Seating of America, Inc. Delaware 50% Xxxx Corporation
Industrial Electrical Specialties, Inc. Delaware 55% Xxxx Corporation Automotive Holdings
IPCO Inc. Delaware 100% Xxxx Corporation Automotive Holdings
LCT, Inc. Michigan 100% Xxxx Corporation
Xxxx Corporation (Germany) Ltd. Delaware 100% Xxxx Corporation
Xxxx Corporation Global Development, Inc. Delaware 100% Xxxx Corporation
Xxxx Corporation Mendon Delaware 100% Xxxx Corporation
Lear Xxxxxxxx Overhead Systems, L.L.C. Michigan 50% Xxxx Corporation
Lear East L.P. Pennsylvania 100% Lear East, Inc. (99%); Xxxx
Corporation Global Development, Inc.
(1%)
Lear East, Inc. Delaware 100% Lear Operations Corporation
Lear Investments Company, L.L.C. Delaware 100% Xxxx Corporation
Lear Mexican Holding, L.L.C. Delaware 100% Xxxx Seating Holdings Corp. #50
Lear Midwest Automotive, Limited Partnership Delaware 100% Lear Midwest, Inc. (99.9%); Xxxx
Corporation Mendon (0.1%)
Lear Midwest, Inc. Kentucky 100% Lear Operations Corporation
Lear Operations Corporation Delaware 100% Xxxx Corporation
Xxxx Seating Holdings Corp. #50 Delaware 100% Xxxx Corporation
Xxxx Seating Holdings Corp. #100 Delaware 100% Xxxx Corporation
Lear Technologies, L.L.C. Delaware 100% Xxxx Corporation
-----------------------------
1. After giving effect to the UT Atomotive acquisition.
151
3
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Lear Trim L.L.C. Delaware 100% NAB Corporation (99.9%); Xxxx
Corporation (.1%)
Masland Transportation, Inc. Delaware 100% Xxxx Corporation
Motors Acquisition Corporation Delaware 100% Xxxx Corporation
NAB Corporation Delaware 100% Xxxx Corporation
Precision Fabrics Group North Carolina 29% Xxxx Corporation
Superior Coach Corporation Ohio 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive (Japan), Inc. Delaware 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive (U.K.) Limited Delaware 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive Systems, Inc. Ohio 100% Xxxx Corporation Automotive Holdings
United Technologies Automotive, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
United Technologies Furukawa Corporation Delaware 51% Xxxx Corporation Automotive Holdings
UT Automitive Advanced Technology, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
UT Automotive Dearborn, Inc. Delaware 100% Xxxx Corporation Automotive Holdings
Xxxx Corporation Automotive Holdings Delaware 100% Xxxx Operations Corporation
Xxxxxx Industries, Inc. Indiana 100% Xxxx Corporation Automotive Holdings
152
4
FOREIGN SUBSIDIARIES:
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
AB Extruding Sweden 100% Xxxx Corporation Sweden AB
AB Trelleborgsplast Sweden 100% Xxxx Corporation Sweden AB
All Automotive Industries Canada Inc. Canada 100% Xxxx Corporation
Alfombras San Xxxx S.A. Argentina 100% Industria Textil Dragui X.X.
Xxxxxxxxxx B.V. Netherlands 100% Xxxx Corporation
Asia Pacific Components Co., Ltd. Thailand 98% Xxxx Seating (Thailand) Corp., Ltd.
Auto Interiors India Private Ltd. India 25%
Autoform Kunsrstoffeile GmbH Germany 69% Gruppo Pianfej S.r.L (44%); Pianfei
Glass SA (25%)
Autoform Kunststoffteile GmbH & Co KG Germany 70.89% Gruppo Pianfej S.r.L (45.2%); Pianfei
KG Glass SA (29.69%)
Autotrim, S.A. de C.V. Mexico 40% Interiores Automotrics Xxxxx X.X. de
C.V.
AVB Anlagen und Vorrichtungsbau Germany 55% Xxxx Corporation Bereiligungs GmbH
Aviken Plast AB Sweden 100% Xxxx Corporation Gnosjoplast AB
Chongqing Xxxx Xxxxx'an Automotive China 35.75% Xxxx Corporation China Ltd.
Interior Trim Co., Ltd.
Consorcio Industrial Mexicanos de Mexico 100% Xxxx Corporation 99.4%; Empresas
Autopartes S.A. de C.V. Industriales Mexicanos de Autopartes,
S.A. de C.V. .6%
Davart Group Ltd. UK 100% Xxxx Corporation UK Interior Systems
Limited
Xxxxxxxx Eurotrim Ltd. Ireland 50% Lear Xxxxxxxx Overhead Systems, L.L.C.
El Trim (Pty.) Ltd. Italy 51% Xxxx Corporation Beteiligungs GmbH
Empetek autodily s.r.o. Czech Republic 50% Lear Xxxxxxxx Overhead Systems, L.L.C.
Empresas Industriales Mexicanos de Mexico 74.98% Xxxx Corporation
Autopartes, S.A. de C.V.
Favesa S.r.l. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Gate Deutschland GmbH Germany 100% Xxxx Corporation Automotive Holdings
Gate France S.A. France 99.760% Xxxx Corporation Automotive Holdings
Gate S.p.A. Italy 100% Xxxx Corporation Automotive Holdings
Gate UK Limited U.K. 100% Xxxx Corporation Automotive Holdings
General Seating of Canada Ltd. Canada 50% Xxxx Corporation Canada, Ltd.
General Seating of Thailand Corp. Ltd. 50% Xxxx Corporation
153
5
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Gruppo Pianfei S.r.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
Xxxxxxxx Xxxx Plastifol Dynamics Ltd. UK 33.3% Xxxx Corporation Drahtfedem GmbH
Xxxxx Xxxx Automotive Parts Private Ltd. India 50% Xxxx Corporation
Hubei UTA-Xianfeng Auto Electric China 100% Xxxx Corporation Automotive Holdings
Company, Ltd.
Industria Textil Dragui S.A. Argentina 100% Industrias Lear de Argentina, S.A.
Industrias Cousin Xxxxxx, X.X. Spain 49.99% Xxxx Corporation Italia S.p.A..
Industrias Lear de Argentina, S.A. Argentina 100% Xxxx Corporation
Industrias Lear Trim S. de X.X. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Inteco S.p.A. Italy 100% Strapazzini Auto S.p.A. (99%), Xxxx
Corporation Italia Holding S.r.L. (1%)
Interiores Automotrices Xxxxx X.X. de Mexico 40% Lear Operations Corporation
C.V.
Interiores Para Autos, S.A. de C.V. Mexico 40% Interiores Auto Matricies Xxxxx X.X. de
C.V.
Interni S.A. Brazil 25%
Jiangxi Jiangling Lear Interior Systems China 32% Xxxx Corporation China Ltd.
Co. Ltd.
Xxxx Xxxxxx Plastics Ltd. UK 100% Xxxx Corporation UK Interior Systems
Limited
L.S. Servicos Ltds. Brazil 100% Xxxx Corporation
Xxxx Automotive Corporation Singapore Singapore 100% Xxxx Corporation
Pte. Ltd.
Lear Bahia Ltd. Brazil 100% Lear do Brazil Ltda.
Lear Belgium Newco Belgium 100% Xxxx Corporation
Lear Brits (SA)(Pty.) Ltd. South Africa 100% Xxxx Corporation
Lear Car Seating do Brasil Ltda. Brazil 100% L.S. Servicos Ltda.
Xxxx Corporation (Nottingham) Limited UK 100% Xxxx Corporation (UK) Limited)
Xxxx Corporation (S.A.)(Pty.) Ltd. South Africa 100%
Xxxx Corporation (SSD) Ltd. UK 100% Lear UK ISM Limited
Xxxx Corporation (SSD) NV Belgium 100% Xxxx Corporation
Xxxx Corporation (UK) Ltd. UK 100% Lear UK Acquisition Limited
Xxxx Corporation Asientos, S.A. Spain 100% Xxxx Corporation Spain X.X.
Xxxx Corporation Australia Pty. Ltd. Australia 100% Xxxx Corporation
Xxxx Corporation Austria GmbH Austria 100% Xxxx Corporation Beteiligungs GmbH
154
6
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Xxxx Corporation Austria GmbH & Co. KG Austria 100% Xxxx Corporation Beteiligungs GmbH
(99%); Xxxx Corporation Austria GmbH
(1%)
Xxxx Corporation Automotive Components South Africa 100%
(Pty.) Ltd.
Xxxx Corporation Beteiligungs GmbH Germany 100% Xxxx Corporation (Germany) Ltd.
Xxxx Corporation Drabtfedern GmbH Germany 100% Xxxx Corporation Beteiligungs GmbH
Xxxx Corporation Canada Ltd. Ontario 100% Xxxx Corporation
Lear Canada Investments Ltd. Ontario 100% Xxxx Corporation
Xxxx Corporation China Ltd. Mauritius 65%
Xxxx Corporation France S.A.R.L. France 100% Xxxx Corporation
Xxxx Corporation GmbH & Co. KG Germany 100% Xxxx Corporation Drahtfedern GmbH
Xxxx Corporation Holdings Spain S.L. 100% Xxxx Corporation
Xxxx Corporation Hungary KFT 100% Xxxx Corporation Drahtfedern GmbH
Xxxx Corporation Interior Compenents South Africa 100% Xxxx Corporation
(Pty.) Ltd.
Xxxx Corporation Italia Holding S.r.L. Italy 100% Xxxx Corporation
Xxxx Corporation Italia S.p.A. Italy 100% Xxxx Corporation Italia Holdings S.r.L.
Xxxx Corporation Italia Speciality Car Italy 100% Xxxx Corporation Italia Holding S.r.L
Group S.r.L.
Xxxx Corporation Italia Sud S.p.A. Italy 100% Xxxx Corporation Italia S.p.A.
Xxxx Corporation Mexico S.A. de C.V. Mexico 99.6% Lear Holdings S.r.l. de X.X.
Xxxx Corporation Poland Gliwice Poland 100% Xxxx Corporation
S.p.zo.x.
Xxxx Corporation Poland II S.p.zo.o. Poland 100% Xxxx Corporation
Xxxx Corporation Poland S.p.zo.o. Poland 100% Xxxx Corporation
Xxxx Corporation Portugal-Components Portugal 100% Xxxx Corporation
Para Automovers, Lda.
Xxxx Corporation Spain S.L. 100% Xxxx Corporation Holdings Spain X.X.
Xxxx Corporation Sweden AB Sweden 100% Xxxx Corporation
Xxxx Corporation Sweden Gnosjoplast AB Sweden 100% Xxxx Corporation Sweden XX
Xxxx Corporation UK Holdings Ltd. UK 100% Xxxx Corporation
Xxxx Corporation UK Interior Systems Ltd. UK 100% Xxxx Corporation UK Holdings Ltd.
Xxxx Corporation Verwaltungs GmbH Germany 100% Xxxx Corporation Drahtfedern GmbH
155
7
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Lear de Venezuela, C.A. Venezuela 100% Xxxx Corporation
Lear de Brazil ltda. Brazil 100% Xxxx Corporation
Lear Xxxxxxxx Mexico, S. de X.X. de C.V. (50%) Lear Xxxxxxxx Overhead Systems, L.L.C.
Lear Foreign Sales Group US Virgin Islands 100% Xxxx Corporation
Lear Holdings S.r.L. de C.V. (50%) Lear Mexican Holdings, L.L.C.
Lear Inespo Comercial Industrial Ltda. Brazil 50.01% Xxxx Corporation
Lear JIT (Pty.) Ltd. South Africa 51% Xxxx Corporation Drahtfedern GmbH
Lear North West (Pty.) Ltd. South Africa 100% Xxxx Corporation
Xxxx Seating (Thailand) Corp., Ltd. Thailand 98% Xxxx Corporation
Xxxx Seating Private Limited India [49%] Ramco Investments Limited
Lear Sewing (Pty) Ltd. South Africa 51% Xxxx Corporation Drahtfedern GmbH
Lear Teknik Oto Yan Sanayi Limited Sirket Turkey 66.67% Xxxx Corporation
Lear UK Acquisition Limited UK 100% Xxxx Corporation UK Holdings Limited
Lear UK ISM Limited UK 100% Xxxx Corporation (UK) Limited
Xxxx Xxxxxxxxx Seating Private Limited India 50% Ramco Investments Limited
LECA S.p. zo.o Poland 100% Xxxx Corporation
Markol Otomotiv Yan Sanayi VE Ticaret Turkey 35% Xxxx Corporation
A.S.
Masland (UK) Limited UK 100% Xxxx Corporation
Masland Industries of Canada Limited Canada 100% Xxxx Corporation
Mecanismos Auxiliarios Industriales, S.A. Spain 99.9% Xxxx Corporation Automotive Holdings
No-Sag Drahtfedern Xxxxxxx & Co. KG Austria 62.5% Xxxx Corporation Drahtfedern GmbH
OOO Lear Russia 100% Xxxx Corporation Global Development,
Inc.
Pianfei Engineering S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Glass SA Spain 35% Gruppo Pianfei S.r.L.
Pianfei Ipa X.xX. Italy 100% Gruppo Pianfei S.r.L. (98%); Xxxx
Corporation Italia Holding S.r.L. (2%)
Pianfei Melti S.r.L. Italy 73% Xxxx Corporation Italia Holding S.r.L.
Pianfei Sicilia S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Sud S.r.L. Italy 100% Gruppo Pianfei S.r.L. (70%);
Pianfei Xxxxx S.r.L. (30%)
156
8
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
Polovat Auto Sp.zo.o. Poland 100% Polovar Sp.z.o.o.
Polovat Sp.zo.o. Poland 100% Arbirario B.V.
Protos S.r.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
PRPI S.p.A. (in liquidation) Italy 85% Gruppo Pianfei S.r.L.(18%); Pianfei
Engineering S.r.L. (67%)
Xxxx Handels GmbH Austria 100% Xxxx Corporation Bereiligungs GmbH
Ramco Investments Limited Mauritius 100% Xxxx Corporation
Rolloplast Formsprutning AB Sweden 100% Xxxx Corporation Gnosjoplast AB
S.A.L.B.I. AB Sweden 50% Xxxx Corporation Sweden AB
Shanghai Lear Automobile Interior Trim China 35.75% Xxxx Corporation China Ltd.
Co., Ltd.
Shanghai Songjiang Xxxx Automotive China 35.75 Xxxx Corporation China Ltd.
Carpet & Accoustics Co. Ltd.
Siam UT Automotive Co., Ltd. Thailand 99.9976% Xxxx Corporation Automotive Holdings
Societe No Sag Francaise France 56% Xxxx Corporation France S.A.R.L.
Societe Offran-Villaise de Technologie, France 100% Xxxx Corporation France S.A.R.L.
S.A.
Xxxxxx Xxxxxxx (UK) Limited UK 50% Masland (UK) Limited
Xxxxxxx GmbH Austria 62.5% Xxxx Corporation Drahtfedern GmbH
Stapur SA Argentina 5% Xxxx Corporation Automotive Holdings
Strapazzini Auto S.p.A. 100% Strapazini Resine S.r.L. (1%)
Strapazzini Resine S.r.L. (99%)
Strapazzini Resine S.R.L. Italy 100% Xxxx Corporation Italia Holding S.r.L.
SWECA Sp. z.o.o. Poland 100% Xxxx Corporation
United Technologies Automotive Argentina 100% Xxxx Corporation Automotive Holdings
(Argentina) S.A.
United Technologies Automotive (Europe) France 99.75% Xxxx Corporation Automotive Holdings
S.A.
United Technologies Automotive (France) France 100% Xxxx Corporation Automotive Holdings
S.A.R.L.
United Technologies Automotive Honduras 98% Xxxx Corporation Automotive Holdings
(Honduras) S.A.
United Technologies Automotive (Hungary) Hungary 100% Xxxx Corporation Automotive Holdings
Kft
United Technologies Automotive Philippines 99.9% Xxxx Corporation Automotive Holdings
(Philippines), Inc.
157
9
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
United Technologies Automotive (Poland) Poland 75% Xxxx Corporation Automotive Holdings
Sp.zo.o.
United Technologies Automotive Mexico 99.9% Xxxx Corporation Automotive Holdings
Electrical Systems de Mexico, S.A. de
C.V.
United Technologies Gate Espana, S.A. Spain 99.992% Xxxx Corporation Automotive Holdings
UPM S.r.L. Italy 39% Gruppo Pianfei S.r.L.
UT Automotive (Netherlands) B.V. Netherlands 100% Xxxx Corporation Automotive Holdings
UT Automotive (Poland) Sp.zo.o. Poland 100% Xxxx Corporation Automotive Holdings
UT Automotive (Portugal) Components De Portugal 100% Xxxx Corporation Automotive Holdings
Automovies S.A.
UT Automotive Almussafes Services, S.A. Spain 99% Xxxx Corporation Automotive Holdings
UT Automotive Services Netherlands B.V. Netherlands 100% Xxxx Corporation Automotive Holdings
UT Automotive Tunisia S.A. Tunisia 99.98% Xxxx Corporation Automotive Holdings
UT Loewe Automotive Electronics GmbH Germany 100% Xxxx Corporation Automotive Holdings
UT Automotive Saerouns Service, GmbH Germany 100% Xxxx Corporation Automotive Holdings
Wuhan UTA-DCAC Auto Electric Company, China 75% Xxxx Corporation Automotive Holdings
Limited
P.T. Xxxx Corporation Indonesia 51% Xxxx Corporation
F.G. Microdesign Italy 70% Xxxx Corporation Automotive Holdings
158
1
SCHEDULE VII
HAZARDOUS MATERIAL
The Borrower has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("Superfund") at the Organic Chemical site in
Grandville, MI, A-1 Disposal Site in Plainwell, MI, the Thermo-Chem site in
Muskegon, MI, the Sunrise landfill in Wayland Township, MI, and the Ostego
landfill in Michigan. In addition, the Borrower has received settlement offers
to resolve its responsibility at the PCB, Inc. site in Kansas City, KS and MO
($2500.00) and the ABC Barrel and Drum site in Detroit, MI ($8500.00). Although
liability at the sites has not been finalized, the Borrower believes that
expected liability is not material.
159
1
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated February 1, 1994, between Xxxx Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the Borrower's 8 1/4%
Subordinated Notes.
2. Indenture, dated July 1, 1996 between Xxxx Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's
9 1/2% Subordinated Notes.
3. Loan Agreement between NS Beteiligungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the Fiat Xxxx Xxxxxxxx,
XXX, XXX, Delphi, Borealis, Masland Industries, Automotive Industries,
Xxxxxx, Pianfei, Strapazzini, Dragui, Polovat and Ovatex acquisitions
and agreements governing indebtedness which refinance such
indebtedness.
5. Loan Agreement between Xxxx Corporation Canada Ltd. and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
6. Loan Agreement, dated January 27, 1993, between Xxxx Corporation Canada
Ltd. and the Province of Ontario, Canada.
7. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission
and Cumberland Plateau Company.
8. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
9. Agreement governing working capital Indebtedness of Xxxx Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.
10. Term Loan Agreement between Xxxx Corporation and Toronto Dominion
(Texas), Inc. (as amended).
11. Term Loan Agreement between Xxxx Corporation and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch (as amended).
160
1
AGENTS
Invitation Agency
---------- ------
The Chase Manhattan Bank Administrative Agent
Sole Book Manager and Sole Lead
Chase Securities Inc. Arranger
The Bank of Nova Scotia Managing Agent
NBD Bank Managing Agent
Bank of America NT & SA Managing Agent
The Bank of New York Co-Agent
The Bank of Tokyo-Mitsubishi Trust Company Managing Agent
Bankers Trust Company Managing Agent
Banque Nationale De Paris Lead Manager
Citicorp USA, Inc. Co-Syndication Agent
Comerica Bank Co-Agent
Credit Suisse First Boston Managing Agent
The Fuji Bank, Limited Co-Agent
The Industrial Bank of Japan, Limited Co-Agent
Xxxxxx Xxxxxxx Senior Funding, Inc. Co-Syndication Agent
The Royal Bank of Scotland plc Co-Agent
161
Invitation Agency
---------- ------
Societe Generale Lead Manager
Suntrust Bank, Atlanta Lead Manager
Toronto Dominion (Texas), Inc. Documentation Agent
