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EXHIBIT 4.23
EXECUTION COPY
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WALBRO CORPORATION
PURCHASE MONEY LOAN AGREEMENT
DATED AS OF AUGUST 27, 1997
COMERICA BANK, AS AGENT
▇▇▇▇▇▇ BANK, AS CO-AGENT
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TABLE OF CONTENTS
PAGE(S)
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .1
2. PURCHASE MONEY LOANS . . . . . . . . . . . . . . . . .7
2.1 Commitment . . . . . . . . . . . . . . . . . . . . . .7
2.2 Maturity and Repayment; Accrual of Interest. . . . . .9
2.3 Call Option. . . . . . . . . . . . . . . . . . . . . .9
2.4 Prime-based Interest Payments. . . . . . . . . . . . .9
2.5 Eurocurrency-based Interest Payments.. . . . . . . . 10
2.6 Interest Payments on Conversions.. . . . . . . . . . 10
2.7 Interest on Default. . . . . . . . . . . . . . . . . 10
2.8A Initial Requests for Funding Purchase Money Loans. . 10
2.8B Purchase Money Loan Rate Requests; Refundings and
Conversions of Advances . . . . . . . . . . . . . . 11
2.8C Purchase Money Loan Certifications.. . . . . . . . . 13
2.8D Failure to Refund or Convert . . . . . . . . . . . . 13
2.9 Disbursement of Advances.. . . . . . . . . . . . . . 14
2.10 No Prepayment or Reduction of Commitment by Company. 15
2.11 Termination or Reduction of Commitment by Banks. . . 16
2.12 Purpose. . . . . . . . . . . . . . . . . . . . . . . 16
3. CONDITIONS.. . . . . . . . . . . . . . . . . . . . . 16
3.1 Execution of Purchase Money Notes, this Agreement
and the other Purchase Money Loan Documents . . . . 16
3.2 Corporate Authority. . . . . . . . . . . . . . . . . 16
3.3 Perfection of Liens Under Purchase Money Collateral
Documents. . . . . . . . . . . . . . . . . . . . . . 16
3.4 Representations and Warranties.. . . . . . . . . . . 17
3.5 Compliance with Certain Documents and Agreements.. . 17
3.6 Opinion of Counsel.. . . . . . . . . . . . . . . . . 17
3.7 Company's Certificate. . . . . . . . . . . . . . . . 17
3.8 Payment of Agent's and Other Fees. . . . . . . . . . 17
3.9 Other Documents and Instruments. . . . . . . . . . . 17
3.10 Continuing Conditions. . . . . . . . . . . . . . . . 17
4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 18
5. INCORPORATION OF COVENANTS OF REVOLVING CREDIT
AGREEMENT; ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . 18
5.1 Incorporation of Covenants in Credit Agreement . . . 18
5.2 Required Appraisals; and Reductions of Purchase Money
Indebtedness . . . . . . . . . . . . . . . . . . . . 19
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5.3 Additional Reporting and Indemnification . . . . . . 19
5.4 Joinder of Future Significant Domestic Subsidiaries. 19
5.5 Disposition of Collateral. . . . . . . . . . . . . . 20
6. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Events of Default. . . . . . . . . . . . . . . . . . 20
6.2 Exercise of Remedies.. . . . . . . . . . . . . . . . 21
6.3 Rights Cumulative. . . . . . . . . . . . . . . . . . 21
6.4 Waiver by Company and the Designated Borrowers of
Certain Laws; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 21
6.5 Waiver of Defaults.. . . . . . . . . . . . . . . . . 22
7. PAYMENTS, RECOVERIES AND COLLECTIONS; MARGIN
ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Payment Procedure. . . . . . . . . . . . . . . . . . 22
7.2 Pro-rata Recovery. . . . . . . . . . . . . . . . . . 23
7.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . 23
7.4 Margin Adjustments.. . . . . . . . . . . . . . . . . 23
8. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.. . 24
8.1 Reimbursement of Prepayment Costs. . . . . . . . . . 24
8.2 Eurocurrency Lending Office. . . . . . . . . . . . . 25
8.3 Circumstances Affecting Eurocurrency-based Rate. . . 25
8.4 Laws Affecting Eurocurrency-based Availability.. . . 25
8.5 Increased Cost of Eurocurrency-based Advances. . . . 26
8.6 Indemnity. . . . . . . . . . . . . . . . . . . . . . 27
8.7 Other Increased Costs. . . . . . . . . . . . . . . . 27
9. AGENT. . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 Appointment of Agent . . . . . . . . . . . . . . . . 28
9.2 Deposit Account with Agent.. . . . . . . . . . . . . 28
9.3 Exculpatory Provisions.. . . . . . . . . . . . . . . 28
9.4 Successor Agents.. . . . . . . . . . . . . . . . . . 29
9.5 Loans by Agent.. . . . . . . . . . . . . . . . . . . 29
9.6 Credit Decisions.. . . . . . . . . . . . . . . . . . 29
9.7 Notices by Agent.. . . . . . . . . . . . . . . . . . 30
9.8 Nature of Agency.. . . . . . . . . . . . . . . . . . 30
9.9 Actions; Confirmation of Agent's Authority to Act in
Event of Default . . . . . . . . . . . . . . . . . . 30
9.10 Authority of Agent to Enforce Purchase Money Notes
and This Agreement . . . . . . . . . . . . . . . . . 30
9.11 Indemnification. . . . . . . . . . . . . . . . . . . 31
9.12 Knowledge of Default.. . . . . . . . . . . . . . . . 31
9.13 Agent's Authorization; Action by Banks.. . . . . . . 31
9.14 Enforcement Actions by the Agent.. . . . . . . . . . 31
9.15 Co-Agent.. . . . . . . . . . . . . . . . . . . . . . 32
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10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 32
10.1 Accounting Principles. . . . . . . . . . . . . . . . 32
10.2 Consent to Jurisdiction. . . . . . . . . . . . . . . 32
10.3 Law of Michigan. . . . . . . . . . . . . . . . . . . 33
10.4 Interest.. . . . . . . . . . . . . . . . . . . . . . 33
10.5 Closing Costs; Other Costs.. . . . . . . . . . . . . 33
10.6 Notices. . . . . . . . . . . . . . . . . . . . . . . 34
10.7 Further Action.. . . . . . . . . . . . . . . . . . . 34
10.8 Successors and Assigns; Assignments and
Participations . . . . . . . . . . . . . . . . . . . 34
10.9 Indulgence.. . . . . . . . . . . . . . . . . . . . . 37
10.10 Counterparts . . . . . . . . . . . . . . . . . . . . 37
10.11 Amendment and Waiver . . . . . . . . . . . . . . . . 37
10.12 Taxes and Fees . . . . . . . . . . . . . . . . . . . 38
10.13 Confidentiality .. . . . . . . . . . . . . . . . . . 38
10.14 Withholding Taxes .. . . . . . . . . . . . . . . . . 39
10.15 Effective Upon Execution . . . . . . . . . . . . . . 39
10.16 Severability . . . . . . . . . . . . . . . . . . . . 39
10.17 Table of Contents and Headings . . . . . . . . . . . 40
10.18 Construction of Certain Provisions . . . . . . . . . 40
10.19 Independence of Covenants .. . . . . . . . . . . . . 40
10.20 Reliance on and Survival of Various Provisions . . . 40
10.21 Complete Agreement; Amendment and Restatement .. . . 40
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List of Schedules and Exhibits:
Schedule 2.1(a) Purchase Money Loans on Effective Date
Schedule 2.1(b) Description of Fixed Assets funded on Effective Date
Exhibit A Form of Purchase Money Loan Initial Request
Exhibit B-1 Form of Purchase Money Note (Company)
Exhibit B-2 Form of Purchase Money Note (Designated Borrower)
Exhibit C Percentages
Exhibit D Form of Purchase Money Rate Request
Exhibit E Form of Call Option Notice
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PURCHASE MONEY LOAN AGREEMENT
THIS PURCHASE MONEY LOAN AGREEMENT ("Agreement") is made as of the 27th day
of August, 1997, by and among the Banks signatory hereto (individually, "Bank",
and collectively "Banks"), Comerica Bank, as agent for the Banks (in such
capacity, "Agent"), and Walbro Corporation, a Delaware corporation ("Company").
RECITALS:
A. Company has requested that the Banks extend to it and to the Designated
Borrowers (as defined below), credit to fund purchases of machinery, equipment,
fixtures and other fixed assets on the terms and conditions set forth herein,
and to make other credit accommodations as set forth in the Third Amendment to
Revolving Credit Agreement (as defined below).
B. The Banks are prepared to extend such credit, as aforesaid, but only
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, COMPANY, AGENT AND THE BANKS AGREE:
1. DEFINITIONS
For the purposes of this Agreement the following terms will have the
following meanings:
"Advance(s)" shall mean, as the context may indicate, a borrowing requested
by Company or by a Designated Borrower, and made by Banks under Section 2.1 of
this Agreement, as the case may be, and shall include, as applicable, a
Eurocurrency-based Advance and a Prime-based Advance.
"Advance Rate" shall mean seventy percent (70%).
"Agent" shall mean Comerica Bank, a Michigan banking corporation, or any
successor appointed in accordance with Section 9.4 hereof.
"Agent's Correspondent" shall mean such bank or banks as Agent may from
time to time designate by written notice to Company, the Designated Borrowers
and the Banks as its correspondent for Advances in eurodollars.
"Alternate Base Rate" shall mean, for any day, an interest rate per annum
equal to the Federal Funds Effective Rate in effect on such day, plus one
percent (1%).
"Applicable Interest Rate" shall mean the Eurocurrency-based Rate or the
Prime-based Rate, as selected by Company or a Designated Borrower from time to
time, subject to the terms and conditions of this Agreement.
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"Applicable Margin" shall mean, as of any date of determination thereof,
the applicable interest rate margin, determined (based on the Funded Debt Ratio
established under the Revolving Credit Agreement) by reference to the column
titled "Applicable Margin for Advances of the Revolving Credit and Swing Line
Advances" in the Pricing Matrix attached to the Revolving Credit Agreement as
Schedule 5.1.
"Assignment Agreement" shall have the meaning set forth in Section 10.8(d)
hereof.
"Banks" shall mean Comerica Bank, any other Banks signatory hereto, and any
assignee which becomes a Bank pursuant to Section 10.8(d) hereof.
"Business Day" shall mean any day on which commercial banks are open for
domestic and international business (including dealings in foreign exchange) in
Detroit, London (except with respect to any Prime-based Advances), and New York.
"Call Option" and "Call Option Notice" shall have the respective meanings
set forth in Section 2.3 hereof.
"Co-Agent" shall mean ▇▇▇▇▇▇ Bank, in its capacity as Co-Agent hereunder.
"Collateral" shall mean all property or rights in which a security
interest, mortgage, lien or other encumbrance for the benefit of the Lenders is
or has been granted or arises or has arisen, under or in connection with this
Agreement, the Purchase Money Collateral Documents, or otherwise.
"Company" is defined in the Preamble.
"Covered Transaction" shall mean the purchase of any machinery, equipment
or fixtures (in a single transaction or series of transactions) with an
aggregate purchase price, net of shipping, installation and similar charges, and
excluding any capitalized interest or finance cost or charges, of Five Hundred
Thousand Dollars ($500,000) or more.
"Default" shall mean any event which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
"Designated Borrower(s)" shall mean each of the Company's Significant
Domestic Subsidiaries which issues a Purchase Money Note under Section 2.1(e)
hereof.
"Dollars" and the sign "$" shall mean lawful money of the United States of
America.
"Domestic Advance" shall mean any Advance other than a Eurocurrency-based
Advance.
"Effective Date" shall mean the date on which all conditions precedent set
forth in Sections 3.1 through 3.9 hereof have been satisfied or waived.
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"Eurocurrency-based Advance" shall mean any Advance which bears interest at
the Eurocurrency-based Rate.
"Eurocurrency-based Rate" shall mean a per annum interest rate which is the
Applicable Margin (subject in each case to adjustment under Section 7.5 hereof)
above the quotient of:
(i) the per annum interest rate at which deposits in the
relevant eurocurrency are offered to Agent's Eurocurrency
Lending Office by other prime banks in the eurocurrency
market in an amount comparable to the relevant
Eurocurrency-based Advance and for a period equal to the
relevant Eurocurrency-Interest Period at approximately 11:00
A.M. Detroit time two (2) Business Days prior to the first
day of such Eurocurrency-Interest Period, divided by
(ii) a percentage equal to 100% minus the maximum rate on such
date at which Agent or any of the Reference Banks is
required to maintain reserves on `Eurocurrency Liabilities'
as defined in and pursuant to Regulation D of the Board of
Governors of the Federal Reserve System or, if such
regulation or definition is modified, and as long as Agent
is required to maintain reserves against a category of
liabilities which includes eurocurrency deposits or includes
a category of assets which includes eurocurrency loans, the
rate at which such reserves are required to be maintained on
such category,
such sum to be rounded upward, if necessary, to the nearest whole multiple of
1/100th of 1%.
"Eurocurrency-Interest Period" shall mean an Interest Period of one month,
two months or three months (or any lesser number of days agreed to in advance by
Company or a Designated Borrower, Agent and the Banks), as selected by Company
or a Designated Borrower, as applicable, for a Eurocurrency-based Advance
pursuant to Section 2.8B hereof.
"Eurocurrency Lending Office" shall mean, (a) with respect to the Agent,
Agent's office located at its Grand Caymans Branch or such other branch of
Agent, domestic or foreign, as it may hereafter designate as its Eurocurrency
Lending Office by notice to Company, the Designated Borrowers and the Banks and
(b) as to each of the Banks, its office, branch or affiliate located at its
address set forth on the signature pages hereof (or identified thereon as its
Eurocurrency Lending Office), or at such other office, branch or affiliate of
such Bank as it may hereafter designate as its Eurocurrency Lending Office by
notice to Company and Agent.
"Event of Default" shall mean each of the Events of Default specified in
Section 6.1 hereof and each of the Events of Default under the Revolving Credit
Agreement.
"Federal Funds Effective Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
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day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized
standing selected by it.
"Guarantor(s)" shall mean the Company (in its capacity as a guarantor under
the Purchase Money Guaranty) and each Significant Domestic Subsidiary of the
Company and each Person otherwise becoming a Significant Domestic Subsidiary of
the Company subsequent to the date hereof or otherwise entering into the
Purchase Money Guaranty (by joinder agreement or otherwise) from time to time.
"Hereof", "hereto", "hereunder" and similar terms shall refer to this
Agreement in its entirety and not to any particular paragraph or provision of
this Agreement.
"Interest Period" shall mean a Eurocurrency-Interest Period commencing on
the day a Eurocurrency-based Advance is made, or on the effective date of an
election of the Eurocurrency-based Rate made under Section 2.8B hereof, provided
that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day,
except that as to a Eurocurrency-Interest Period, if the next succeeding
Business Day falls in another calendar month, such Eurocurrency-Interest
Period shall end on the next preceding Business Day, and when a
Eurocurrency-Interest Period begins on a day which has no numerically
corresponding day in the calendar month during which such
Eurocurrency-Interest Period is to end, it shall end on the last Business
Day of such calendar month, and
(b) no Interest Period shall extend beyond the maturity date set
forth in the Purchase Money Note to which such Interest Period is to apply.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated thereunder.
"Joinder Agreement" shall mean a joinder agreement in the form attached as
"Exhibit A" to the form of the Purchase Money Guaranty (Exhibit E to this
Agreement), to be executed and delivered, pursuant to Section 5.4 hereof, by any
Domestic Subsidiary which becomes a Significant Domestic Subsidiary subsequent
to the date hereof.
"Majority Banks" shall mean at any time Banks holding 66-2/3% of the
aggregate principal amount of the Purchase Money Indebtedness then outstanding
under the Purchase Money Notes, or, if no Purchase Money Indebtedness is then
outstanding, Banks holding 66-2/3% of the Percentages.
"Percentage" shall mean, with respect to any Bank, its percentage share, as
set forth on Exhibit C hereto, of the Purchase Money Indebtedness, as such
Exhibit may be revised from time to time by Agent in accordance with Section
10.8(d) hereof.
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"Person" shall mean an individual, corporation, partnership, trust,
incorporated or unincorporated organization, joint venture, joint stock company,
or a government or any agency or political subdivision thereof or other entity
of any kind.
"Prime-based Advance" shall mean an Advance which bears interest at the
Prime-based Rate.
"Prime-based Rate" shall mean that rate of interest which is the greater of
(i) the Prime Rate or (ii) the Alternate Base Rate.
"Prime Rate" shall mean the per annum interest rate established by Agent as
its prime rate for its borrowers as such rate may vary from time to time, which
rate is not necessarily the lowest rate on loans made by Agent at any such time.
"Purchase Money Collateral Documents" shall mean the Purchase Money
Guaranty, the Purchase Money Security Agreement and all of the other
acknowledgments, certificates, financing statements, instruments and other
security documents executed by the Company or any of the Designated Borrowers or
other Significant Subsidiaries and delivered to the Agent as of the date hereof
or from time to time subsequent hereto in connection with such guaranty or such
security agreement or this Agreement, as such collateral documents may be
amended, restated, supplemented or replaced from time to time.
"Purchase Money Guaranty" shall mean that certain guaranty of all of the
Purchase Money Indebtedness outstanding hereunder, executed and delivered by the
Company, the Designated Borrowers and the other Significant Domestic
Subsidiaries (whether by execution thereof, or by execution of the Joinder
Agreement attached as Exhibit A to the form of such guaranty) to the Agent, on
behalf of the Banks as of the date of this Agreement, as amended, restated,
supplemented or replaced from time to time.
"Purchase Money Indebtedness" shall mean all indebtedness and liabilities,
whether direct or indirect, absolute or contingent, owing by Company or any of
the Designated Borrowers to the Banks (or any of them) or to the Agent, in any
manner and at any time, under this Agreement or the other Purchase Money Loan
Documents, whether evidenced by the Purchase Money Notes, the Purchase Money
Guaranty, or otherwise, due or hereafter to become due, now owing or that may
hereafter be incurred by the Company or any of the Designated Borrowers to, or
acquired by, the Banks or by Agent in connection with transactions contemplated
by the Purchase Money Loan Documents, and any judgments that may hereafter be
rendered on such indebtedness or any part thereof, with interest according to
the rates and terms specified, or as provided by law, and any and all
consolidations, amendments, renewals, replacements or extensions of any of the
foregoing.
"Purchase Money Loan(s)" shall mean the purchase money loan(s) to be
advanced by the Banks to the Company or any of the Designated Borrowers pursuant
to Section 2.1 hereof for the purchase of any machinery, equipment, fixtures or
other fixed assets, in an aggregate amount (based on the original principal
amount thereof) not to exceed the Purchase Money Loan Aggregate
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Commitment, and "Purchase Money Loan" shall mean each or any of the Purchase
Money Loans funded pursuant thereto, as applicable.
"Purchase Money Loan Aggregate Commitment" shall mean Twenty-Five Million
Dollars ($25,000,000), subject to termination in whole (but not in part)
pursuant to Section 2.11(a) hereof.
"Purchase Money Loan Documents" shall mean this Agreement, the Purchase
Money Notes, the Purchase Money Collateral Documents and other documents,
instruments or agreements executed pursuant thereto, as amended, reviewed,
supplemented or replaced from time to time.
"Purchase Money Loan Initial Request" shall mean a request for the initial
funding of a Purchase Money Loan submitted by the Company or the applicable
Designated Borrower to the Agent under Section 2.8A of this Agreement in the
form annexed hereto as Exhibit A.
"Purchase Money Loan Maturity Date" shall mean the Revolving Credit
Maturity Date in effect from time to time under the Revolving Credit Agreement,
subject, in the case of any Purchase Money Loans covered thereby, to the
exercise of a Call Option pursuant to Section 2.3 hereof.
"Purchase Money Loan Rate Request" shall mean a request for the refunding
or conversion of any Advance of a Purchase Money Loan or Loans, submitted by
Company or the applicable Designated Borrower under Section 2.8B of this
Agreement in the form annexed hereto as Exhibit D.
"Purchase Money Loan Request" shall mean a Purchase Money Loan Initial
Request or a Purchase Money Loan Rate Request, or both such requests, as the
context may indicate.
"Purchase Money Notes" shall mean the promissory notes described in Section
2.1 hereof, made or to be made by Company or the Designated Borrowers to each of
the Banks in the form annexed to this Agreement as Exhibit B-1 or B-2, as the
case may be, as such Purchase Money Notes may be amended, renewed, replaced or
extended from time to time.
"Purchase Money Security Agreement" shall mean that certain security
agreement executed and delivered by Company and the Designated Borrowers to the
Agent as of the date of this Agreement or, by execution and delivery of a
joinder agreement in the form attached thereto, from time to time subsequent to
the date of this Agreement, encumbering the specific machinery, equipment,
fixtures or other fixed assets of such debtors acquired or refinanced (subject
to the terms hereof) with the proceeds of a Purchase Money Loan (all as and to
the extent set forth herein), as security for the applicable Purchase Money
Loan, as the same may be amended, restated, supplemented or replaced from time
to time.
"Purchase Price" shall mean the aggregate purchase price paid for any
machinery, equipment fixtures or other fixed assets in a Covered Transaction, as
evidenced by invoice or purchase order, net of any discounts and shipping,
installation and similar charges, and excluding any capitalized interest or
finance cost or charges.
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"Revolving Credit" shall mean the revolving credit loan to be advanced to
the Company and the Permitted Borrowers (as such term is defined in the
Revolving Credit Agreement) by the Banks pursuant to Section 2 of the Revolving
Credit Agreement.
"Revolving Credit Agreement" shall mean that certain Amended and Restated
Walbro Corporation $135,000,000 Credit Agreement dated as of September 22, 1995,
as amended by First Amendment dated as of March 8, 1996, Second Amendment dated
as of March 17, 1997 and Third Amendment and Waiver dated as of August 14, 1997
("Third Amendment"), as amended, modified, restated, or supplemented according
to the terms thereof from time to time.
Unless otherwise defined herein, all capitalized terms used herein shall
have the meanings set forth in the Revolving Credit Agreement.
2. PURCHASE MONEY LOANS
2.1 Commitment. (a) At least twenty (20) days but no more than sixty(60)
days prior to the purchase by Company or any of its Significant Domestic
Subsidiaries of any machinery, equipment, fixtures or other fixed assets in a
Covered Transaction, Company or such Significant Domestic Subsidiary (which
Significant Domestic Subsidiary shall have become a Designated Borrower pursuant
to Section 2.1(e) hereof) shall deliver a Purchase Money Loan Initial Request
(as set forth in Section 2.8(C) hereof), as notice to Agent of its intent to
make such purchase. The Agent shall distribute such Purchase Money Loan Initial
Request to the Banks, promptly upon receipt thereof from Company.
(b) So long as this Agreement remains in effect:
(i) Prior to each such purchase, Company or the applicable
Designated Borrower shall request the funding of a Purchase
Money Loan hereunder for each item (or group of items) of
machinery, equipment, fixtures or other fixed assets to be
purchased in a Covered Transaction in an amount equal to the
product of the Purchase Price of such machinery, equipment,
fixtures or other fixed assets times the Advance Rate and,
if funded by the Banks, Company or the applicable Designated
Borrower shall accept such Purchase Money Loan; and
(ii) Unless Agent has received written objections to the funding
of a specific Purchase Money Loan from Banks whose
Percentages aggregate not less than thirty four percent
(34%) within ten (10) days of Agent's notification to Banks
under Section 2.1(a) hereof, each of the Banks agrees
(severally and for itself alone) from and after the date
hereof to (but not including) the Purchase Money Loan
Maturity Date then in effect hereunder, but subject to the
terms and conditions of this Agreement, to advance to the
Company or to the applicable Designated Borrower which will
own such machinery, equipment, fixtures or other fixed
assets in a single Advance for each such
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Purchase Money Loan in Dollars, sums not to exceed in the
aggregate for each such Bank, an amount equal to such Bank's
respective Percentage of such Purchase Money Loan to be
funded pursuant to this Section 2.1; provided, however, that
the aggregate principal balance of Purchase Money Loans from
time to time outstanding shall not exceed the Purchase Money
Loan Aggregate Commitment then in effect. Upon the Purchase
Money Loan Maturity Date, the Banks' respective commitments
to make additional Purchase Money Loans hereunder shall
expire and be of no further force and effect.
(c) Unless Company or the applicable Designated Borrower has failed to
satisfy the other terms and conditions for borrowings hereunder, if any Purchase
Money Loan requested by Company or a Designated Borrower hereunder is not funded
by the Banks as a result of the receipt by Agent of objections from the Banks
pursuant to Section 2.1(b)(ii) hereof, Company or the applicable Designated
Borrower may purchase the machinery, equipment, fixtures or other fixed asset
which was the subject of such loan request without a borrowing under this
Agreement and without the grant of any security interest or lien hereunder.
(d) Concurrently with the Effective Date of this Agreement, but subject to
the terms and conditions hereof, the Banks shall (i) fund those Purchase Money
Loans identified on Schedule 2.1 hereto (the amount, the applicable borrower and
the specific Collateral for each such Purchase Money Loan being identified on
such exhibit) and (ii) waive the notice requirement and minimum loan and
transaction amounts set forth in Section 2.1(a) hereof with respect to the
particular machinery, equipment, fixtures or other fixed assets identified on
Schedule 2.1 attached hereto.
(e) Each of the Purchase Money Loans funded under this Section 2.1 shall be
evidenced by Purchase Money Notes to be executed and delivered to each of the
Banks by Company and those of its Significant Domestic Subsidiaries which
purchase machinery, equipment, fixtures or other fixed assets with Purchase
Money Loans hereunder, substantially in the form attached hereto as Exhibit B-1
or B-2, as applicable, with appropriate insertions acceptable to Agent and the
Banks in form and substance, and in the face amount of each Bank's Percentage of
the Purchase Money Loan Aggregate Commitment to be funded by the Banks
hereunder. Each such Purchase Money Loan shall be secured by (and only by) the
specific machinery, equipment, fixtures or other fixed assets upon which such
loan was based (and the proceeds thereof), as identified in the applicable
Purchase Money Loan Initial Request delivered to Agent and the Banks pursuant to
Section 2.8A hereof.
A Significant Domestic Subsidiary shall not be entitled to request a
Purchase Money Loan as a Designated Borrower hereunder until it has executed and
delivered to the Banks, as aforesaid, a Purchase Money Note and has become a
party to the Purchase Money Guaranty and the Purchase Money Security Agreement
accompanied in each case by authority documents, legal opinions and other
supporting documents as required under Section 3 hereof.
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(f) Principal reductions of the Purchase Money Loans received by the Banks
in accordance with this Agreement shall, subject to the terms hereof, be
available for readvance and reborrowing hereunder.
(g) So long as any sums are available for borrowing hereunder, neither the
Company nor any of its Significant Domestic Subsidiaries shall purchase any
machinery, equipment, fixtures or other fixed assets in a Covered Transaction,
except in compliance with this Section 2.1.
2.2 Maturity and Repayment; Accrual of Interest. The Purchase Money Loans,
and all principal and interest outstanding thereunder, shall mature (unless
required to be paid prior thereto, whether pursuant to the exercise of any Call
Option or as required under Section 5.2 hereof, by acceleration or otherwise)
and become due and payable in full on the Purchase Money Loan Maturity Date, and
each Advance of Purchase Money Indebtedness evidenced by the Purchase Money
Notes from time to time outstanding hereunder shall, from and after the date of
such Advance, bear interest at its Applicable Interest Rate. The amount and date
of each Advance, its Applicable Interest Rate, its Interest Period, if any, and
the amount and date of any repayment shall be noted on Agent's records, which
records will be rebuttably presumptive evidence thereof, absent demonstrable
error; provided, however, that any failure by the Agent to record any such
information shall not relieve the Company or the applicable Designated Borrower
of its obligation to repay the outstanding principal amount of such Advance, all
interest accrued thereon and any amount payable with respect thereto in
accordance with the terms of this Agreement and the other Purchase Money Loan
Documents.
2.3 Call Option. The Purchase Money Loans shall be subject to the right of
the Majority Banks to exercise a call option ("Call Option") under which all or
any portion of the principal balance of the Purchase Money Indebtedness then
outstanding (as specified in such notice) shall become due and payable within
thirty (30) days following the receipt by the Company of a Call Option Notice in
the form of Exhibit E attached hereto, such notice to be given by Agent, at the
direction or with the concurrence of the Majority Banks to Company and the
Designated Borrowers. All sums received for application against the Purchase
Money Indebtedness in connection with the exercise of a Call Option hereunder
shall be applied to such of the Purchase Money Loans then outstanding as the
Majority Banks shall specify in the applicable Call Option Notice, and otherwise
in such order and manner as the Majority Banks shall elect; provided that if no
Default or Event of Default has occurred and is continuing, such sums will be
held by Agent in a cash collateral account, for application against such
outstanding Purchase Money Loans on the last day of the applicable Interest
Periods, but only to the extent necessary to avoid the imposition of breakage
costs or charges hereunder. It is acknowledged and agreed that, subject to the
terms thereof, Advances under the Revolving Credit Agreement may be used to
repay Purchase Money Indebtedness required to be repaid hereunder.
2.4 Prime-based Interest Payments. Interest on the unpaid balance of each
Purchase Money Loan which is funded or carried as a Prime-based Advance from
time to time shall accrue from the date of such Advance to the Purchase Money
Loan Maturity Date (or until refunded, converted or paid), at a per annum
interest rate equal to the Prime-based Rate, and shall be payable
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in immediately available funds quarterly commencing on the first day of the
calendar quarter immediately following the calendar quarter in which the Advance
under the applicable Purchase Money Loan is made, and continuing on the first
day of each calendar quarter thereafter until the Purchase Money Loan Maturity
Date. Interest accruing at the Prime-based Rate shall be computed on the basis
of a 360-day year and assessed for the actual number of days elapsed, and in
such computation effect shall be given to any change in the interest rate
resulting from a change in the Prime-based Rate on the date of such change in
the Prime-based Rate.
2.5 Eurocurrency-based Interest Payments. Interest on the unpaid balance of
each Purchase Money Loan which is funded or carried as a Eurocurrency-based
Advance from time to time shall accrue at its Applicable Interest Rate and shall
be payable in immediately available funds on the last day of the Interest Period
applicable thereto. Interest accruing at the Eurocurrency-based Rate shall be
computed on the basis of a 360-day year and assessed for the actual number of
days elapsed from the first day of the Interest Period applicable thereto to,
but not including, the last day thereof.
2.6 Interest Payments on Conversions. Notwithstanding anything to the
contrary in the preceding Sections, all accrued and unpaid interest on any
Advance of the Purchase Money Loan converted pursuant to Section 2.8B hereof
shall be due and payable in full on the date such Advance of the Purchase Money
Loan is converted.
2.7 Interest on Default. In the event and so long as any Event of Default
shall exist under any Purchase Money Note or under this Agreement, interest
shall be payable daily on all Advances evidenced by the Purchase Money Notes
from time to time outstanding at a per annum rate equal to the Applicable
Interest Rate, plus two percent (2%) for the remainder of the then existing
Interest Period, if any, and at all other times at the Prime-based Rate, plus
two percent (2%).
2.8A Initial Requests for Funding Purchase Money Loans. Company or the
applicable Designated Borrower may request the funding of a Purchase Money Loan
only upon delivery to the Agent of a Purchase Money Loan Initial Request
executed by an authorized officer of Company or the applicable Designated
Borrower (with the countersignature of the Company) in accordance with Section
2.1(a) hereof, subject to the following conditions:
(a) Each such Purchase Money Loan Initial Request shall set forth the
information required on such form including without limitation:
(i) whether the borrower will be the Company or an
applicable Significant Domestic Subsidiary;
(ii) the Purchase Price for the item or group of items to be
purchased and a certification that the fair market
value of the applicable machinery, equipment, fixtures
or other fixed assets will equal or exceed the Purchase
Price at the time of funding, and the supporting and
other information required under Section 2.1 hereof;
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(iii) the principal amount of the Purchase Money Loan
requested to be funded, which amount shall not be less
than Three Hundred and Fifty Thousand Dollars
($350,000) and the proposed date that the applicable
Purchase Money Loan is to be funded (which must be a
Business Day); and
(iv) the particular machinery, equipment or fixtures or
other fixed assets to be purchased or refunded with the
proceeds of the Purchase Money Loan, including serial
number and other descriptive information (and the real
estate description, ownership information and titlework
pertinent to any property location to which an item or
group of items is to become, or may become, affixed to
such real estate) sufficient for perfection of the
security interest and lien to be granted to the Banks
under the Purchase Money Security Agreement (and as
determined by the Majority Banks in their reasonable
discretion);
and shall be accompanied by appropriate financing statements, financing
statement amendments and/or other documents or instruments required for the
perfection of the security interests and liens to be granted to the Banks
pursuant to the Purchase Money Security Agreement and any Purchase Money Loan
Initial Requests delivered in connection therewith (as reasonably required by
Agent and the Majority Banks);
(b) The principal amount of the Purchase Money Loan requested to be funded,
determined as of the date of funding such loan, plus the principal amount of all
other Purchase Money Loans than outstanding hereunder shall not exceed the then
applicable Purchase Money Loan Aggregate Commitment; and
(c) In connection with the funding of each Purchase Money Loan hereunder,
Company or the applicable Designated Borrower shall deliver to the Agent, no
later than 12:00 noon (Detroit time) three Business Days prior to the proposed
date of Advance, a Purchase Money Loan Rate Request in accordance with Section
2.8B hereof, except in the case of a Prime-based Advance, for which the Purchase
Money Loan Rate Request shall be delivered by 11:00 a.m. (Detroit time) on the
proposed date of Advance.
2.8B Purchase Money Loan Rate Requests; Refundings and Conversions of
Advances. Company or a Designated Borrower may refund or convert any Advance of
Purchase Money Loans at the Prime-based Rate or the Eurocurrency-based Rate and
request the Advance of a Purchase Money Loan at the Prime-based Rate or the
Eurocurrency-based Rate, but only after delivery to Agent of a Purchase Money
Loan Rate Request executed by an authorized officer of Company or the applicable
Designated Borrower (with the countersignature of the Company) and subject to
the terms hereof and to the following:
(a) each such Purchase Money Loan Rate Request shall set forth the
information required on the Purchase Money Loan Rate Request form with
respect to such Purchase Money Loan, including without limitation:
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(i) the proposed date of the refunding or conversion
of the Advances, which must be a Business Day;
(ii) whether the Advance is a refunding or conversion
of any outstanding Advances; and
(iii) whether such Advance is to be a Prime-based
Advance or a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance, the
Interest Period applicable thereto.
(b) each such Purchase Money Loan Rate Request shall be delivered to
Agent by 12 Noon (Detroit time) three (3) Business Days prior to the
proposed date of Advance, except in the case of a Prime-based Advance, for
which the Request for Advance must be delivered by 11 a.m. on the proposed
date of Advance;
(c) the principal amount of such Advance of a Purchase Money Loan or
Loans, plus the amount of any other Advances of Purchase Money Loans to be
then combined therewith having the same Applicable Interest Rate and
Interest Period, if any, shall be (i) in the case of a Prime-based Advance
at least Three Hundred Fifty Thousand Dollars ($350,000), or the remaining
principal balance outstanding under all Purchase Money Loans funded prior
thereto, whichever is less and (ii) in the case of a Eurocurrency-based
Advance at least Two Million Five Hundred Thousand Dollars ($2,500,000), or
a larger whole dollar multiple;
(d) no Advance shall have an Interest Period ending after the
Purchase Money Loan Maturity Date, and, notwithstanding any provision
hereof to the contrary, Company or the applicable Designated Borrower shall
be required to select Interest Periods for sufficient portions of Purchase
Money Indebtedness(or maintain sufficient portions thereof as a Prime-based
Advance) such that the Company or the applicable Designated Borrower may
make its required principal payments hereunder (if a Call Option has been
exercised), on a timely basis and otherwise in accordance with Section 2.3
above;
(e) upon completion of the Advance there shall be no more than three
(3) Interest Periods and Two (2) Applicable Interest Rates (including the
Prime-based Rate) in effect with respect to all of the Purchase Money Loans
then outstanding; and
(f) a Purchase Money Loan Rate Request, once delivered to Agent,
shall not be revocable by Company or the applicable Designated Borrower.
Each selection of an Interest Period, and the amount and date of any repayment
shall be noted on Agent's records, which records will be rebuttably presumptive
evidence thereof, absent demonstrable error.
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2.8C Purchase Money Loan Certifications. Each Purchase Money Loan Initial
Request and Purchase Money Loan Rate Request shall constitute and include a
certification by the Company or the applicable Designated Borrower as of the
date thereof that:
(a) both before and after the Advance so requested, the obligations
of the Company and its Subsidiaries set forth in this Agreement and the
other Purchase Money Loan Documents to which such Persons are parties are
valid, binding and enforceable obligations of the Company, its Subsidiaries
and the Designated Borrowers, as the case may be;
(b) all conditions to Advances of the applicable Purchase Money Loan
or Purchase Money Loans have been satisfied, and shall remain satisfied to
the date of the Advance (both before and after giving effect to such
Advance);
(c) there is no Default or Event of Default in existence, and none
will exist upon the making of the applicable Advance (both before and after
giving effect to such Advance);
(d) the representations and warranties contained in this Agreement
and the other Purchase Money Loan Documents are true and correct in all
material respects and shall be true and correct in all material respects as
of the making of the applicable Advance (both before and after giving
effect to such Advance);
(e) the execution of the applicable Purchase Money Loan Initial
Request or Purchase Money Loan Rate Request will not violate the material
terms and conditions of any material contract, agreement or other borrowing
of Company or any of its Subsidiaries; and
(f) Company or the applicable Designated Borrower, as the case may
be, requesting such Advance has good and marketable title to the particular
machinery, equipment or fixtures or other fixed assets to be funded with
the proceeds of such Advance or will acquire such good and marketable title
concurrently upon the making of the Advance with respect thereto, subject
to no liens, claims, security interests or encumbrances.
Each Purchase Money Loan Initial Request or Purchase Money Loan Rate Request, as
the case may be, shall be accompanied by such documents, instruments and other
materials required hereunder or otherwise necessary to evidence satisfaction of
all conditions to the applicable Advance or Advances of a specified Purchase
Money Loan or Purchase Money Loans.
2.8D Failure to Refund or Convert. In the event the Company shall fail with
respect to any Advance of a Purchase Money Loan or Loans (other than a
Prime-based Advance) to timely exercise its option to refund or convert such
Advance in accordance with this Section 2.8 (and such Advance has not been paid
in full on the last day of the Interest Period applicable thereto according to
the terms hereof) the principal amount of such Advance which has not been
prepaid shall be automatically converted to a Prime-based Advance.
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2.9 Disbursement of Advances.
(a) Upon receiving a Purchase Money Loan Initial Request from
Company or a Designated Borrower in compliance with Sections 2.1, 2.8A and
2.8B hereof, together with such other documents and instruments required
thereunder, Agent shall promptly notify each Bank by wire, telex or by
telephone (confirmed by wire, telecopy or telex) of the amount of such
Advance to be made and the date such Advance is to be made by said Bank
pursuant to its Percentage of the Advance. Unless such Bank's commitment to
make Advances hereunder shall have been suspended or terminated in
accordance with this Agreement, each Bank shall make available to Agent the
amount of its Percentage of the Advance in immediately available funds, as
follows:
(i) for Prime-based Advances, at the office of Agent
located at One Detroit Center, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not later than
2:00 p.m. (Detroit time) on the date of such
Advance; and
(ii) for Eurocurrency-based Advances, at the Agent's
Correspondent for the account of the Eurocurrency
Lending Office of the Agent, not later than 12
Noon (the time of the Agent's Correspondent) on
the date of such Advance.
(b) Subject to receipt of the Purchase Money Loan Initial Requests,
as applicable, and such other documents and instruments referred to in
Section 2.9(a) hereof (without exceptions noted in the compliance
certifications therein), Agent shall make available to Company or the
applicable Designated Borrower, as the case may be, the aggregate of the
amounts so received by it from the Banks in like funds:
(i) for Advances in respect of Purchase Money Loans
which refund prior purchases of machinery,
equipment, fixtures or other fixed assets, not
later than 4:00 p.m. (Detroit time, or the time of
the Agent's Correspondent, as the case may be) on
the date of such Advance by deposit to an account
of the Company or the applicable Designated
Borrower maintained with Agent, or Agent's
Correspondent, as the case may be, or to such
other account or third party as Company or the
applicable Designated Borrower may reasonably
direct;
(ii) in connection with all other Advances to purchase
machinery, equipment, fixtures or other fixed
assets hereunder, not later than 4:00 p.m.
(Detroit time or the time of the Agent's
Correspondent, as the case may be) on the date of
such Advance, directly to the vendor of such fixed
assets.
(c) Agent shall deliver the documents and papers received by it for
the account of each Bank to such Bank or upon its order. Unless Agent shall
have been notified by any
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Bank prior to the date of any proposed Advance that such Bank does not
intend to make available to Agent such Bank's Percentage of the Advance,
Agent may assume that such Bank has made such amount available to Agent on
such date, as aforesaid and may, in reliance upon such assumption, make
available to Company or the applicable Designated Borrower a corresponding
amount. If such amount is not in fact made available to Agent by such Bank,
as aforesaid, Agent shall be entitled to recover such amount on demand from
such Bank. If such Bank does not pay such amount forthwith upon Agent's
demand therefor, the Agent shall promptly notify Company and Company or the
applicable Designated Borrower shall pay such amount to Agent. Agent shall
also be entitled to recover from such Bank or Company (and the applicable
Designated Borrower), as the case may be, interest on such amount in
respect of each day from the date such amount was made available by Agent
to Company or the applicable Designated Borrower to the date such amount is
recovered by Agent, at a rate per annum equal to:
(i) in the case of such Bank, with respect to
Prime-based Advances, the Federal Funds Effective
Rate, and with respect to Eurocurrency-based
Advances, Agent's aggregate marginal cost
(including the cost of maintaining any required
reserves or deposit insurance and of any fees,
penalties, overdraft charges or other costs or
expenses incurred by Agent as a result of such
failure to deliver funds hereunder) of carrying
such amount; and
(ii) in the case of Company, the rate of interest then
applicable to the Purchase Money Loans.
The obligation of any Bank to make any Advance hereunder shall not be
affected by the failure of any other Bank to make any Advance hereunder,
and no Bank shall have any liability to the Company or its Subsidiaries,
the Agent, any other Bank, or any other party for another Bank's failure to
make any loan or Advance hereunder.
2.10 No Prepayment or Reduction of Commitment by Company. Unless and until
the Company has duly and irrevocably terminated the Revolving Credit Agreement,
and all of its obligations thereunder and under the other Loan Documents (as
such term is defined in the Revolving Credit Agreement) (or does so concurrently
therewith), the Company shall not be entitled to prepay all or any portion of
the Purchase Money Indebtedness, and the Banks shall have no obligation
whatsoever to accept any such prepayment. Nor shall Company or any Designated
Borrower be entitled to reduce the amount of the Purchase Money Loan Aggregate
Commitment available to be advanced hereunder. Notwithstanding the foregoing
however, if on the proposed date of prepayment there are no outstanding Advances
under the Revolving Credit Agreement and the Company has maintained such
Advances at zero (0) for a period of not less than thirty (30) consecutive days
through the proposed date of prepayment, then the Company may, subject to
Article 8 and the other terms and conditions hereof, prepay all or any portion
of the Purchase Money Indebtedness outstanding at such time and the Banks shall
accept such prepayment.
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2.11 Termination or Reduction of Commitment by Banks. At any time and from
time to time, and whether or not a Default or Event of Default has occurred and
is continuing, the Majority Banks may elect, by written notice to the Company,
to terminate the Banks' commitment to fund Purchase Money Loans under Section
2.1 hereof which then remains unfunded, provided that any Purchase Money Loans
funded prior to the effective date of such termination shall not be affected by
termination of such commitment. Termination shall be effective immediately upon
the giving of notice by Agent (at the direction of with the concurrence of the
Majority Banks) to Company and the Designated Borrowers.
2.12 Purpose. Purchase Money Loans shall be available, subject to the terms
hereof, to fund the purchase of machinery, equipment, fixtures and other fixed
assets by the Company and the Designated Borrowers or refinancings of such
purchases pursuant to Section 2.1(d) hereof.
3. CONDITIONS. The obligations of Banks to make Advances or loans pursuant
to this Agreement are subject to the following conditions, provided however that
Sections 3.1 through 3.10 below shall only apply to the initial Advances or
loans hereunder:
3.1 Execution of Purchase Money Notes, this Agreement and the other
Purchase Money Loan Documents. The Company (on or before the Effective Date),
each Guarantor and the Designated Borrowers (prior to requesting any Advance
hereunder), as applicable, shall have executed and delivered to the Agent for
the account of each Bank, the Purchase Money Notes and this Agreement (including
all schedules, exhibits, certificates, opinions, financial statements and other
documents to be delivered pursuant hereto) and the other Purchase Money Loan
Documents, and, as applicable, this Agreement and the other Purchase Money Loan
Documents shall be in full force and effect.
3.2 Corporate Authority. Agent shall have received, with a counterpart
thereof for each Bank: (i) certified copies of resolutions of the Board of
Directors of the Company, each of the Designated Borrowers (prior to requesting
any Advance hereunder) and each Guarantor evidencing approval of this Agreement,
the Purchase Money Notes and the other Purchase Money Loan Documents to which
such Person is a party and (if applicable) authorizing the execution and
delivery thereof and the borrowing of Advances hereunder; (ii) (A) certified
copies of the Company's, each Designated Borrower's and each Guarantor's
articles of incorporation and bylaws or other constitutional documents certified
as true and complete as of a recent date by the appropriate official of the
jurisdiction of incorporation of each such entity (or, if unavailable in such
jurisdiction, by a responsible officer of such entity); and (B) certificates of
good standing for Company, the Designated Borrowers and the Guarantors
satisfying the requirements set forth in Section 6.2 of the Revolving Credit
Agreement, as applicable.
3.3 Perfection of Liens Under Purchase Money Collateral Documents. In
addition, the Agent shall have received, concurrently with or prior to the
making of any Purchase Money Loan hereunder, proof that appropriate financing
statements, collateral and other documents covering such collateral, have been
executed and delivered by the appropriate parties and recorded, registered or
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filed in such jurisdictions and such other steps have been taken as necessary to
perfect the security interests or other liens granted thereby.
3.4 Representations and Warranties. The representations and warranties made
by the Company, the Designated Borrowers, the Guarantors and any other party to
any of the Purchase Money Loan Documents under this Agreement or any of the
other Purchase Money Loan Documents (excluding the Agent and the Banks), and the
representations and warranties of any of the foregoing which are contained in
any certificate, document or financial or other statement furnished at any time
hereunder or thereunder or in connection herewith or therewith shall have been
true and correct in all material respects when made and shall be true and
correct in all material respects on and as of the date of the making of the
initial Advance hereunder.
3.5 Compliance with Certain Documents and Agreements. The Company, the
Designated Borrowers and the Guarantors (and any of their respective
Subsidiaries or Affiliates) shall have each performed and complied with all
agreements and conditions contained in this Agreement, the other Purchase Money
Loan Documents, or any agreement or other document executed hereunder or
thereunder and required to be performed or complied with by each of them (as of
the applicable date) and none of such parties shall be in default in the
performance or compliance with any of the terms or provisions hereof or thereof.
3.6 Opinion of Counsel. The Company, the Designated Borrowers and the
Guarantors shall have furnished Agent with signed copies for each Bank (and
addressed to each of the Banks) opinions of counsel given upon the express
instructions of the Company, the Designated Borrowers and the Guarantors, dated
as of the applicable dates of delivery thereof, and covering such matters as
required by and otherwise satisfactory in form and substance to the Agent and
each of the Banks.
3.7 Company's Certificate. The Agent shall have received, with a signed
counterpart for each Bank, a certificate of a responsible senior officer of
Company, dated the date of the making of the initial Advances hereunder, stating
that the conditions of paragraphs 3.1, 3.4, 3.5 and 3.10(a) through (c) hereof
have been fully satisfied.
3.8 Payment of Agent's and Other Fees. Company shall have paid to the Agent
all fees, costs and expenses required hereunder.
3.9 Other Documents and Instruments. The Agent shall have received, with a
photocopy for each Bank, such other instruments and documents as the Majority
Banks may reasonably request in connection with the making of Advances
hereunder, and all such instruments and documents shall be satisfactory in form
and substance to the Majority Banks.
3.10 Continuing Conditions. Subject to the terms hereof, the obligations of
the Banks to make any of the Advances or loans under this Agreement shall be
subject to the following continuing conditions:
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(a) No Default or Event of Default shall have occurred and be
continuing as of the making of the proposed Advance (both before and after
giving effect thereto);
(b) There shall have been no material adverse change in the
condition (financial or otherwise), properties, business, results or operations
of the Company and its Subsidiaries, taken as a whole, from December 31, 1996,
except changes in the ordinary course of business (including without limitation
the information set forth in the Consolidated financial statements of the
Company and its Subsidiaries as of December 31, 1996), or any subsequent
December 31st, if the Agent determines, with the concurrence of the Majority
Banks, based on the Company's financial statements for such subsequent fiscal
year that no material adverse change has occurred during such year, such
determination being made solely for purposes of determining the applicable date
under this paragraph to the date of the proposed Advance hereunder;
(c) The representations and warranties contained in this Agreement
and the other Purchase Money Loan Documents are true and correct in all material
respects as of the making of the applicable Advance; and
(d) All documents executed or submitted pursuant hereto shall be
reasonably satisfactory in form and substance (consistent with the terms hereof)
to Agent and its counsel and to each of the Banks; Agent and its counsel and
each of the Banks and their respective counsel shall have received all
information, and such counterpart originals or such certified or other copies of
such materials, as Agent or its counsel and each of the Banks and their
respective counsel may reasonably request; and all other legal matters relating
to the transactions contemplated by this Agreement (including, without
limitation, matters arising from time to time as a result of changes occurring
with respect to any statutory, regulatory or decisional law applicable hereto)
shall be satisfactory to counsel to Agent and counsel to each of the Banks.
4. REPRESENTATIONS AND WARRANTIES
Each of the Company and the Designated Borrowers ratify, confirm and by
reference thereto, represent and warrant to Agent and the Banks with respect to
themselves and with respect to this Agreement those matters set forth in
Sections 7.1 through 7.20, inclusive, of the Revolving Credit Agreement (and,
for purposes of this Agreement, but not otherwise, each reference in the
Revolving Credit Agreement to the Loan Documents shall include the Purchase
Money Loan Documents), and such representations and warranties shall be deemed
to be continuing representations and warranties during the entire life of this
Agreement.
5. INCORPORATION OF COVENANTS OF REVOLVING CREDIT
AGREEMENT; ADDITIONAL COVENANTS
5.1 Incorporation of Covenants in Credit Agreement. For the benefit of the
Banks, Company and the Designated Borrowers shall comply with all covenants
contained in the Revolving Credit Agreement, as fully as though such covenants
were set forth herein in their entirety. The provisions of the Revolving Credit
Agreement, as amended, modified restated, or supplemented
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from time to time according to the terms thereof, and subject to any waiver or
consent granted by the Majority Banks or the Banks, as the case may be,
thereunder, are incorporated herein by reference in accordance with the
foregoing and shall remain in full force and effect for the benefit of the
Banks, notwithstanding any termination of the Revolving Credit Aggregate
Commitment after the date hereof.
5.2 Required Appraisals; and Reductions of Purchase Money Indebtedness.
(a) Commencing on June 1, 1999, and on June 1st of every third year
thereafter and, at the sole discretion of the Majority Banks, more frequently
if an Event of Default has occurred and is continuing so long as this Agreement
remains in effect, Company shall deliver or cause to be delivered to the Agent
(with copies for each of the Banks) a personal property appraisal in form and
substance satisfactory to the Majority Banks performed by an appraiser
satisfactory to Agent and the Majority Banks (and addressing such matters as
Agent or the Majority Banks shall specify in writing from time to time to the
Company) covering each item of the Collateral and setting forth, among other
things, the "forced sale value" thereof. In addition, subject to the consent of
its insurance carriers (and any appraisers retained by such insurance
carriers), Company shall deliver or cause to be delivered to Agent (with copies
for each of the Banks), promptly upon Company's receipt thereof, copies of any
insurance appraisals performed from time to time. The appraisals required
hereunder shall be delivered at the sole expense of the Company.
(b) In addition, in the event of the receipt by Company, any
Designated Borrower or any other Subsidiary of the proceeds of any sale,
condemnation, insurance, loss or casualty of or affecting any item of Collateral
(or any other proceeds of any kind or nature in respect thereof), the amount of
such proceeds shall be immediately paid to Agent, for application by Agent
against the Purchase Money Loan used to fund the acquisition of such item of
Collateral, in the order and manner as determined by the Majority Banks in their
sole discretion.
5.3 Additional Reporting and Indemnification. In addition to the report and
other information required to be provided under Section 8.3 of the Revolving
Credit Agreement, Company shall be obligated to provide promptly, and in form to
be satisfactory to Agent and the requesting Bank or Banks, such other
information as Agent or any of the Banks (acting through Agent) may reasonably
request from time to time with respect to the purchase of any machinery,
equipment, fixtures or other fixed assets, or with respect to the Collateral,
this Agreement or the other Purchase Money Loan Documents. Furthermore, Company
and each of the Designated Borrowers shall also indemnify and save Agent and
each of the Banks (and their respective officers, directors, agents, employees
and other representatives) harmless from all reasonable loss, cost, damage,
liability or other expenses, including reasonable attorney fees and
disbursements, incurred by Agent and each of the Banks with respect to this
Agreement and the other Purchase Money Loan Documents on the same basis and to
the full extent as set forth in Section 8.11 of the Revolving Credit Agreement
for the Revolving Credit Agreement and the other Loan Documents (as defined
therein).
5.4 Joinder of Future Significant Domestic Subsidiaries. Company shall (a)
cause each Domestic Subsidiary which becomes a Significant Domestic Subsidiary
(as determined under Section 8.17 of the Revolving Credit Agreement) to promptly
(but in any event within thirty days
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of the date such Domestic Subsidiary becomes a Significant Domestic Subsidiary)
execute and deliver to Agent, for and on behalf of each of the Banks, a joinder
agreement whereby such Significant Domestic Subsidiary becomes obligated as a
Guarantor under the Purchase Money Guaranty (in the form of joinder agreement
attached thereto) and (b) cause each Significant Domestic Subsidiary which
becomes a Designated Borrower after the date hereof, concurrently with the
delivery by such Designated Borrower of Notes hereunder, to execute and deliver
to Agent, for and on behalf of the Banks, a joinder agreement whereby such
Designated Borrower becomes obligated as a Debtor under the Purchase Money
Security Agreement (in the form of joinder agreement attached thereto),
together, in the case of clauses (a) and (b) hereof, as applicable, with such
financing statements and other supporting documentation, including without
limitation corporate authority items, certificates and opinions of counsel, as
reasonably required by Agent and the Majority Banks.
5.5 Disposition of Collateral. Notwithstanding the provision of Section 9.3
of the Revolving Credit Agreement, the Company shall not sell, lease, transfer,
relocate or dispose of any of the Collateral except as expressly permitted under
the Purchase Money Loan Documents.
6. DEFAULTS
6.1 Events of Default. Any of the following events is an "Event of
Default":
(a) non-payment when due of the principal or interest under any of
the Purchase Money Notes issued hereunder in accordance with the terms
thereof, and in the case of interest payments, continuance thereof for
three (3) Business Days;
(b) default in the payment of any money by Company or any of the
Designated Borrowers under this Agreement (other than as set forth in
subsection (a), above), within three (3) days of the date the same is due
and payable;
(c) default in the observance or performance of any of the other
conditions, covenants or agreements set forth in this Agreement or any of
the other Purchase Money Loan Documents by any party thereto or the
occurrence of any other default or event of default, as the case may be,
hereunder or thereunder;
(d) any representation or warranty made by Company or any of the
Designated Borrowers herein or in any instrument submitted pursuant hereto
or by any other party to the Purchase Money Loan Documents proves untrue in
any material adverse respect when made or deemed made;
(e) default in the observance or performance of or failure to comply
with any of the conditions, covenants or agreements of Company, the
Designated Borrowers or any Guarantor set forth in any of the other
Purchase Money Loan Documents, and the continuance thereof beyond any
period of grace or cure specified in any such document;
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(f) any provision of the Purchase Money Guaranty shall at any time
for any reason cease to be valid and binding and enforceable against the
Company or any of the Guarantors, as applicable, or the validity, binding
effect or enforceability thereof shall be contested by any Person, or the
Company or any of the Guarantors shall deny that it has any or further
liability or obligation under the Purchase Money Guaranty, or the Purchase
Money Guaranty shall be terminated, invalidated, revoked or set aside or in
any way cease to give or provide to the Banks and the Agent the benefits
purported to be created thereby; or
(g) the occurrence of an Event of Default under the Revolving Credit
Agreement or the other Loan Documents.
6.2 Exercise of Remedies. If an Event of Default has occurred and is
continuing hereunder: (a) the Agent shall, if directed to do so by the Majority
Banks, declare any commitment of the Banks to lend hereunder immediately
terminated; (b) the Agent shall, if directed to do so by the Majority Banks,
declare the entire unpaid principal Purchase Money Indebtedness, including the
Purchase Money Notes, immediately due and payable, without presentment, notice
or demand, all of which are hereby expressly waived by Company and each of the
Designated Borrowers; (c) upon the occurrence of any Event of Default specified
in Section 10.1 (l) of the Revolving Credit Agreement and notwithstanding the
lack of any declaration by Agent under preceding clause (b) hereof, the entire
unpaid principal Purchase Money Indebtedness, including the Purchase Money
Notes, shall become automatically due and payable; and (d) the Agent shall, if
directed to do so by the Majority Banks or the Banks, as applicable (subject to
the terms hereof), exercise any remedy permitted by this Agreement, the other
Purchase Money Loan Documents or law.
6.3 Rights Cumulative. No delay or failure of Agent and/or Banks in
exercising any right, power or privilege hereunder shall affect such right,
power or privilege, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof, or the exercise of any other power, right
or privilege. The rights of Banks under this Agreement are cumulative and not
exclusive of any right or remedies which Banks would otherwise have.
6.4 Waiver by Company and the Designated Borrowers of Certain Laws; WAIVER
OF JURY TRIAL. To the extent permitted by applicable law, Company and the
Designated Borrowers hereby agree to waive, and do hereby absolutely and
irrevocably waive and relinquish the benefit and advantage of any valuation,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist, which, but for this provision, might be applicable to any sale
made under the judgment, order or decree of any court, on any claim for interest
on the Purchase Money Notes, AND FURTHER HEREBY IRREVOCABLY AGREE TO WAIVE THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY AND ALL ACTIONS OR PROCEEDINGS IN
WHICH AGENT OR THE BANKS (OR ANY OF THEM), ON ONE HAND, AND THE COMPANY OR THE
DESIGNATED BORROWERS (OR ANY OF THEM), ON THE OTHER HAND, ARE PARTIES, WHETHER
OR NOT SUCH ACTIONS OR PROCEEDINGS ARISE OUT OF THIS AGREEMENT OR THE OTHER
PURCHASE MONEY LOAN DOCUMENTS, OR OTHERWISE. These waivers have been voluntarily
given, with full knowledge of the consequences thereof.
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6.5 Waiver of Defaults. No Event of Default shall be waived by the Banks
except in a writing signed by an officer of the Agent in accordance with Section
9.13 hereof. No single or partial exercise of any right, power or privilege
hereunder, nor any delay in the exercise thereof, shall preclude other or
further exercise of the Banks' rights by Agent. No waiver of any Event of
Default shall extend to any other or further Event of Default. No forbearance on
the part of the Agent in enforcing any of the Banks' rights shall constitute a
waiver of any of their rights. Company and each of the Designated Borrowers
expressly agree that this Section may not be waived or modified by the Banks or
Agent by course of performance, estoppel or otherwise.
7. PAYMENTS, RECOVERIES AND COLLECTIONS; MARGIN
ADJUSTMENTS.
7.1 Payment Procedure.
(a) All payments by Company and/or by the Designated Borrowers of
principal of, or interest on, the Purchase Money Notes or of fees shall be
made without setoff or counterclaim on the date specified for payment under
this Agreement not later than 12:00 noon (Detroit time) in immediately
available funds to Agent, for the ratable account of the Banks, at Agent's
office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or, in the
case of Eurocurrency-based Advances, at Agent's Eurocurrency Lending
Office. Upon receipt of each such payment, the Agent shall make prompt
payment to each Bank, or, in respect of Eurocurrency-based Advances, such
Bank's Eurocurrency Lending Office, in like funds, of all amounts received
by it for the account of such Bank.
(b) Unless the Agent shall have been notified by the Company prior
to the date on which any payment to be made by the Company or a Designated
Borrower is due that the Company or such Designated Borrower does not
intend to remit such payment, the Agent may, in its discretion, assume that
the Company or the applicable Designated Borrower has remitted such payment
when so due and the Agent may, in reliance upon such assumption, make
available to each Bank on such payment date an amount equal to such Bank's
share of such assumed payment. If the Company or such Designated Borrower
has not in fact remitted such payment to the Agent, each Bank shall
forthwith on demand repay to the Agent the amount of such assumed payment
made available to such Bank, together with the interest thereon, in respect
of each day from and including the date such amount was made available by
the Agent to such Bank to the date such amount is repaid to the Agent at a
rate per annum equal to (i) for Domestic Advances, the Federal Funds
Effective Rate, as the same may vary from time to time, and (ii) with
respect to Eurocurrency-based Advances, Agent's aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance and of any fees, penalties, overdraft charges or other costs or
expenses incurred by Agent) of carrying such amount.
(c) Whenever any payment to be made hereunder (other than payments
in respect of any Eurocurrency-based Advance) shall otherwise be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such
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extension of time shall be included in computing interest, if any, in
connection with such payment. Whenever any payment of principal of, or
interest on, a Eurocurrency-based Advance shall be due on a day which is
not a Business Day the date of payment thereof shall be extended to the
next succeeding Business Day unless as a result thereof it would fall in
the next calendar month, in which case it shall be shortened to the next
preceding Business Day and, in the case of a payment of principal, interest
thereon shall be payable for such extended or shortened time, if any.
(d) All payments to be made by the Company or any of the Designated
Borrowers under this Agreement or any of the Purchase Money Notes shall be
made without set-off or counterclaim, as aforesaid, and without deduction
for or on account of any present or future withholding or other taxes of
any nature imposed by any governmental authority or of any political
subdivision thereof or any federation or manner as determined by the
Majority Banks (subject, however, to the applicable Percentages of the
Purchase Money Indebtedness held by each of the Banks), next, to any other
Purchase Money Indebtedness on a pro rata basis, and then, if there is any
excess, to the Company or the Designated Borrowers, as the case may be. The
application of such proceeds and other sums to the Purchase Money Notes
shall be based on each Bank's Percentage of the aggregate Purchase Money
Indebtedness.
7.2 Pro-rata Recovery. If any Bank shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or otherwise)
on account of principal of, or interest on, any of the Purchase Money Notes in
excess of its pro rata share of payments then or thereafter obtained by all
Banks upon principal of and interest on all Purchase Money Notes, such Bank
shall purchase from the other Banks such participations in the Purchase Money
Notes held by them as shall be necessary to cause such purchasing Bank to share
the excess payment or other recovery ratably in accordance with the Percentages
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing holder,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
7.3 Setoff. In addition to and not in limitation of any rights of any Bank
or other holder of any of the Purchase Money Notes under applicable law, each
Bank and each other such holder shall, upon acceleration of the Purchase Money
Indebtedness under the Purchase Money Notes and without notice or demand of any
kind, have the right to set-off, appropriate and apply to the payment of the
Purchase Money Notes owing to it (whether or not then due) any and all balances,
credits, deposits, accounts or moneys of Company or any of the Designated
Borrowers then or thereafter with such Bank or other holder; provided, however,
that any such amount so applied by any Bank or other holder on any of the
Purchase Money Notes owing to it shall be subject to the provisions of Section
7.3 hereof.
7.4 Margin Adjustments. Adjustments to the Applicable Margin, based on
Schedule 5.1 to the Revolving Credit Agreement shall be implemented as follows:
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(i) Such adjustments to the Applicable Margin shall be
given prospective effect only, effective (A) as to all Prime-based Advances
outstanding hereunder, immediately upon the required date of delivery of the
financial statements required to be delivered under Section 8.3(b) and 8.3(c) of
the Revolving Credit Agreement establishing applicability of the appropriate
adjustments, if any, and (B) as to each Eurocurrency-based Advance outstanding
hereunder, effective upon the expiration of the applicable Interest Period(s),
if any, in effect on the required date of delivery of the latest of such
financial statements required to be delivered thereunder during such Interest
Period(s), as applicable, in each case with no retroactivity or claw-back.
(ii) With respect to Eurocurrency-based Advances
outstanding hereunder, an adjustment hereunder, after becoming effective, shall
remain in effect only through the end of the applicable Interest Period(s) for
such Eurocurrency-based Advances if any; provided, however, that upon the
delivery of quarterly financial statements demonstrating any change in the
Funded Debt Ratio established under the Revolving Credit Agreement, as
aforesaid, or the occurrence of any other event which under the terms hereof
causes such adjustment no longer to be applicable, then any such subsequent
adjustment or no adjustment, as the case may be, shall be effective (and said
pricing shall thereby be adjusted up or down, as applicable) with the
commencement of each Interest Period following such change or event, all in
accordance with the preceding subparagraph.
8. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.
8.1 Reimbursement of Prepayment Costs. If Company or any of the Designated
Borrowers (a) makes any payment of principal with respect to any
Eurocurrency-based Advance on any day other than the last day of the Interest
Period applicable thereto (whether voluntarily, by acceleration, or otherwise),
or (b) converts or refunds (or attempts to convert or refund), any such Advance,
or (c) fails to borrow, refund or convert any Eurocurrency-based Advance after
notice has been given by Company or such Designated Borrower to Agent in
accordance with the terms hereof requesting such Advance, or (d) fails to make
any payment of principal or interest in respect of a Eurocurrency-based Advance
when due, then Company and the applicable Designated Borrower shall reimburse
Agent and Banks, as the case may be on demand for any resulting loss, cost or
expense incurred by Agent or any of the Banks, as the case may be as a result
thereof, including, without limitation, any such loss, cost or expense incurred
in obtaining, liquidating, employing or redeploying deposits from third parties,
whether or not Agent and such Banks, as the case may be, shall have funded or
committed to fund such Advance, but excluding loss of the Applicable Margin.
Such amount payable by Company and the applicable Designated Borrower to Agent
and Banks, as the case may be, may include, without limitation, an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, refunded or converted, for the period
from the date of such prepayment or of such failure to borrow, refund or
convert, through the last day of the relevant Interest Period, at the applicable
rate of interest for said Advance(s) provided under this Agreement (excluding
the Applicable Margin, if any), over (ii) the amount of interest (as reasonably
determined by Agent and or any of the Banks, as the case may be) which would
have accrued to Agent or such Bank(s), as the case may be, on such amount by
placing such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. Calculation of any amounts payable to any Bank
under this
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paragraph shall be made as though each such Bank shall have actually funded or
committed to fund the relevant Advance through the purchase of an underlying
deposit in an amount equal to the amount of such Advance and having a maturity
comparable to the relevant Interest Period; provided, however, that any Bank may
fund any Eurocurrency-based Advance in any manner it deems fit and the foregoing
assumptions shall be utilized only for the purpose of the calculation of amounts
payable under this paragraph. Upon the written request of Company, Agent and the
applicable Bank(s) shall deliver to Company a certificate setting forth in
reasonable detail the basis for determining such losses, costs and expenses,
which certificate shall be rebuttably presumptive evidence thereof, absent
demonstrable error.
8.2 Eurocurrency Lending Office. For any Advance to which the
Eurocurrency-based Rate is applicable, if Agent or a Bank, as applicable, shall
designate a Eurocurrency Lending Office which maintains books separate from
those of the rest of Agent or such Bank, Agent or such Bank, as the case may be,
shall have the option of maintaining and carrying the relevant Advance on the
books of such Eurocurrency Lending Office.
8.3 Circumstances Affecting Eurocurrency-based Rate. If with respect to any
Interest Period Agent shall determine that, by reason of circumstances affecting
the foreign exchange and interbank markets generally, deposits in eurodollars in
the applicable amounts are not being offered to the Agent or such Bank for such
Interest Period, then Agent shall forthwith give notice thereof to the Company
and the applicable Designated Borrower. Thereafter, until Agent notifies Company
and the applicable Designated Borrower that such circumstances no longer exist,
(i) the obligation of Banks to make Eurocurrency-based Advances, and the right
of Company or any Designated Borrower to convert an Advance to or refund an
Advance as a Eurocurrency-based Advance, as the case may be, shall be suspended,
and (ii) the Company and the applicable Designated Borrower shall repay in full
(or cause to be repaid in full) the then outstanding principal amount of each
such Eurocurrency-based Advance, together with accrued interest thereon, any
amounts payable under Sections 8.1 and 8.4, hereof, and all other amounts
payable hereunder on the last day of the then current Interest Period applicable
to such Advance. Upon the date for repayment as aforesaid and unless Company or
the applicable Designated Borrower notifies Agent to the contrary within two (2)
Business Days after receiving a notice from Agent pursuant to this Section, such
outstanding principal amount shall be converted to a Prime-based Advance as of
the last day of such Interest Period.
8.4 Laws Affecting Eurocurrency-based Availability. If, after the date
hereof, the introduction of, or any change in, any applicable law, rule or
regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any of the Banks (or any of their respective
Eurocurrency Lending Offices) with any request or directive (whether or not
having the force of law) of any such authority, shall make it unlawful or
impossible for any of the Banks (or any of their respective Eurocurrency Lending
Offices) to honor its obligations hereunder to make or maintain any Advance with
interest at the Eurocurrency-based Rate, such Bank shall forthwith give notice
thereof to Company and to Agent. Thereafter, (a) the obligations of Banks to
make Eurocurrency-based Advances and the right of Company or any Designated
Borrower to convert an Advance into or
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refund an Advance as a Eurocurrency-based Advance shall be suspended and
thereafter Company or the applicable Designated Borrower may select as
Applicable Interest Rates only those which remain available and which are
permitted to be selected hereunder, and (b) if any of the Banks may not lawfully
continue to maintain an Advance to the end of the then current Interest Period
applicable thereto as a Eurocurrency-based Advance, the applicable Advance shall
immediately be converted to a Prime-based Advance and the Prime-based Rate shall
be applicable thereto for the remainder of such Interest Period. For purposes of
this Section, a change in law, rule, regulation, interpretation or
administration shall include, without limitation, any change made or which
becomes effective on the basis of a law, rule, regulation, interpretation or
administration presently in force, the effective date of which change is delayed
by the terms of such law, rule, regulation, interpretation or administration.
8.5 Increased Cost of Eurocurrency-based Advances. If the adoption after
the date hereof, or any change after the date hereof in, any applicable law,
rule or regulation of or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Agent or any of the
Banks (or any of their respective Eurocurrency Lending Offices) with any request
or directive (whether or not having the force of law) made by any such
authority, central bank or comparable agency after the date hereof:
(a) shall subject any of the Banks (or any of their respective
Eurocurrency Lending Offices) to any tax, duty or other charge with respect
to any Advance or any Purchase Money Note or shall change the basis of
taxation of payments to any of the Banks (or any of their respective
Eurocurrency Lending Offices) of the principal of or interest on any
Advance or any Purchase Money Note or any other amounts due under this
Agreement in respect thereof (except for changes in the rate of tax on the
overall net income of any of the Banks or any of their respective
Eurocurrency Lending Offices imposed by the jurisdiction in which such
Bank's principal executive office or Eurocurrency Lending Office is
located); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by any of the Banks
(or any of their respective Eurocurrency Lending Offices) or shall impose
on any of the Banks (or any of their respective Eurocurrency Lending
Offices) or the foreign exchange and interbank markets any other condition
affecting any Advance or any of the Purchase Money Notes;
and the result of any of the foregoing is to increase the costs to any of the
Banks of maintaining any part of the Purchase Money Indebtedness hereunder as a
Eurocurrency-based Advance or to reduce the amount of any sum received or
receivable by any of the Banks under this Agreement or under the Purchase Money
Notes in respect of a Eurocurrency-based Advance, whether with respect to
Advances to Company or to any of the Designated Borrowers, then such Bank shall
promptly notify Agent and Agent (or such Bank, as aforesaid) shall promptly
notify Company and the applicable
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Designated Borrowers of such fact and demand compensation therefor and, within
thirty (30) days after such notice, Company and the applicable Designated
Borrowers agree to pay to such Bank such additional amount or amounts as will
compensate such Bank or Banks for such increased cost or reduction. Agent will
promptly notify Company and the applicable Designated Borrowers of any event of
which it has knowledge which will entitle Banks to compensation pursuant to this
Section, or which will cause Company or Designated Borrower to incur additional
liability under Sections 8.1 and 8.6 hereof, provided that Agent shall incur no
liability whatsoever to the Banks, Company or any of the Designated Borrowers in
the event it fails to do so. A certificate of Agent (or such Bank, if
applicable) setting forth in reasonable detail the basis for determining such
additional amount or amounts necessary to compensate such Bank or Banks shall be
presumed to be correct, save for demonstrable error. For purposes of this
Section, a change in law, rule, regulation, interpretation, administration,
request or directive shall include, without limitation, any change made or which
becomes effective on the basis of a law, rule, regulation, interpretation,
administration, request or directive presently in force, the effective date of
which change is delayed by the terms of such law, rule, regulation,
interpretation, administration, request or directive.
8.6 Indemnity. The Company and each of the Designated Borrowers will
indemnify Agent and each of the Banks against any loss or expense which may
arise or be attributable to the Agent's and each Bank's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or maintain the
Advances (a) as a consequence of any failure by the Company or the applicable
Designated Borrower to make any payment when due of any amount due hereunder in
connection with a Eurocurrency-based Advance, (b) due to any failure of the
Company or the applicable Designated Borrower to borrow, refund or convert on a
date specified therefor in a
Request for Advance or (c) due to any payment, prepayment or conversion of any
Eurocurrency-based Advance on a date other than the last day of the Interest
Period for such Advance. Such loss or expense shall be calculated based upon the
present value, as applicable, of payments due from the Company or the applicable
Designated Borrower with respect to a deposit obtained by the Agent or any of
the Banks in order to fund such Advance to the Company or to the applicable
Designated Borrower. The Agent's and each Bank's, as applicable, calculations of
any such loss or expense shall be furnished to the Company in reasonable detail
and shall be presumed correct, absent demonstrable error.
8.7 Other Increased Costs. In the event that at any time after the date of
this Agreement any change in law such as described in Section 8.5 hereof, shall
require that the Banks' commitments to fund Purchase Money Loans hereunder or
any other Purchase Money Indebtedness or commitment under this Agreement or any
of the other Purchase Money Loan Documents be treated as an asset or otherwise
be included for purposes of calculating the appropriate amount of capital to be
maintained by each of the Banks or any corporation controlling such Banks, as
the case may be (or shall increase the amount of capital required under such
law, as of the date hereof, to be so maintained), the Agent, in consultation
with the Banks, shall notify the Company. The Company and the Agent shall
thereafter negotiate in good faith an agreement to assess new fees or increase
the existing fees payable to the Agent, for the benefit of the Banks, under this
Agreement, which in the opinion of the Agent (in consultation with the Banks),
will adequately compensate the Banks for the costs associated with such change
in law. If such new fees or increased fees are approved in
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writing by the Company within thirty (30) days from the date of the notice to
the Company from the Agent, the other fees, if applicable, payable by the
Company under this Agreement shall, effective from the date of such agreement,
include the amount of such agreed new or increased fees. If the Company and the
Agent are unable to agree on such fees within thirty (30) days from the date of
the notice to the Company, the Company shall have the option (subject to the
terms hereof), exercised by written notice to the Agent within forty-five (45)
days from the date of the aforesaid notice to the Company from the Agent, to
terminate any commitments to fund Purchase Money Loans hereunder, or other
commitments if applicable, in which event, all sums then outstanding to Banks
and to Agent hereunder shall be due and payable in full. If (a) the Company and
the Agent (in consultation with the Banks) fail to agree on such fees and (b)
the Company fails to give timely notice that it has elected to exercise its
option to terminate any commitments to fund Purchase Money Loans hereunder or
other commitments, if applicable, as set forth above, then any commitments to
fund Purchase Money Loans hereunder and/or such other commitments shall
automatically terminate as of the last day of the aforesaid forty-five (45) day
period, in which event all sums then outstanding to Banks and to Agent hereunder
shall be due and payable in full.
9. AGENT
9.1 Appointment of Agent. Each Bank and the holder of each Purchase Money
Note appoints and authorizes Agent to act on behalf of such Bank or holder under
the Purchase Money Loan Documents and to exercise such powers hereunder and
thereunder as are specifically delegated to or required of Agent by the terms
hereof and thereof, together with such powers as may be reasonably incidental
thereto. Each Bank agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket expenses
(including in-house and outside attorneys' fees) incurred by Agent hereunder or
in connection herewith or with an Event of Default or in enforcing the
obligations of Company or any of the Designated Borrowers under this Agreement
or the other Purchase Money Loan Documents or any other instrument executed
pursuant hereto, and for which Agent is not reimbursed by Company or the
Designated Borrowers, pro rata according to such Bank's Percentage, but
excluding any such expenses resulting from Agent's gross negligence or willful
misconduct. Agent shall not be required to take any action under the Purchase
Money Loan Documents, or to prosecute or defend any suit in respect of the
Purchase Money Loan Documents, unless indemnified to its satisfaction by the
Banks against loss, costs, liability and expense (excluding liability resulting
from its gross negligence or willful misconduct). If any indemnity furnished to
Agent shall become impaired, it may call for additional indemnity and cease to
do the acts indemnified against until such additional indemnity is given.
9.2 Deposit Account with Agent. Company and each of the Designated
Borrowers may, by written notice to Agent, authorize Agent to charge their
respective general deposit accounts, if any, maintained with Agent for the
amount of any principal, interest, or other amounts or costs due under this
Agreement when the same shall become due and payable under the terms of this
Agreement or the Purchase Money Notes.
9.3 Exculpatory Provisions. Agent agrees to exercise its rights and powers,
and to perform its duties, as Agent hereunder and under the other Purchase Money
Loan Documents in
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accordance with its usual customs and practices in bank-agency transactions, but
only upon and subject to the express terms and conditions of this Section 9 (and
no implied covenants or other obligations shall be read into this Agreement
against the Agent); neither Agent nor any of its directors, officers, employees
or agents shall be liable to any Bank for any action taken or omitted to be
taken by it or them under this Agreement or any document executed pursuant
hereto, or in connection herewith or therewith, except for its or their own
willful misconduct or gross negligence, nor be responsible for any recitals or
warranties herein or therein, or for the effectiveness, enforceability, validity
or due execution of this Agreement or any document executed pursuant hereto, or
any security thereunder, or to make any inquiry respecting the performance by
Company, any of its Subsidiaries or the Designated Borrowers of their respective
obligations hereunder or thereunder. Nor shall Agent have, or be deemed to have,
a fiduciary relationship with any Bank by reason of this Agreement. Agent shall
be entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which it believes to be
genuine and to have been presented by a proper person.
9.4 Successor Agents. Agent may resign as such at any time upon at least 30
days prior notice to Company and all Banks. If Agent at any time shall resign or
if the office of Agent shall become vacant for any other reason, Majority Banks
shall, by written instrument, appoint a successor Agent (consisting of Co-Agent,
or of any other Bank or financial institution satisfactory to such Majority
Banks and, provided that no Default or Event of Default has occurred and is
continuing, to Company, such approval of Company not to be unreasonably withheld
or delayed) which shall thereupon become Agent hereunder and shall be entitled
to receive from the prior Agent such documents of transfer and assignment as
such successor Agent may reasonably request. Such successor Agent shall succeed
to all of the rights and obligations of the retiring Agent as if originally
named. The retiring Agent shall duly assign, transfer and deliver to such
successor Agent all moneys at the time held by the retiring or removed Agent
hereunder after deducting therefrom its expenses for which it is entitled to be
reimbursed. Upon such succession of any such successor Agent, the retiring agent
shall be discharged from its duties and obligations hereunder, except for its
gross negligence or willful misconduct arising prior to its retirement
hereunder, and the provisions of this Section 9 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
9.5 Loans by Agent. Agent shall have the same rights and powers with
respect to the credit extended by it and the Purchase Money Notes held by it as
any Bank and may exercise the same as if it were not Agent, and the term "Bank"
and, when appropriate, "holder" shall include Agent in its individual capacity.
9.6 Credit Decisions. Each Bank acknowledges that it has, independently of
Agent and each other Bank and based on the financial statements of Company, the
Designated Borrowers and their respective Subsidiaries and such other documents,
information and investigations as it has deemed appropriate, made its own credit
decision to extend credit hereunder from time to time. Each Bank also
acknowledges that it will, independently of Agent and each other Bank and based
on such other documents, information and investigations as it shall deem
appropriate at any time, continue
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to make its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under this Agreement or any
document executed pursuant hereto.
9.7 Notices by Agent. Agent shall give prompt notice to each Bank of its
receipt of each notice or request required or permitted to be given to Agent by
Company or any of the Designated Borrowers pursuant to the terms of this
Agreement and shall promptly distribute to the Banks any reports received from
the Company or any of its Subsidiaries or the Designated Borrowers under the
terms hereof, or other material information or documents received by Agent, in
its capacity as Agent, from the Company, its Subsidiaries or the Designated
Borrowers.
9.8 Nature of Agency. The appointment of Agent as agent hereunder is for
the convenience of Banks, Company and the Designated Borrowers in making
Advances of Purchase Money Loans and any other Purchase Money Indebtedness of
Company or the Designated Borrowers hereunder, and collecting fees and principal
and interest on the Purchase Money Indebtedness. No Bank is purchasing any
Purchase Money Indebtedness from Agent and this Agreement is not intended to be,
and shall not constitute, a purchase or participation agreement.
9.9 Actions; Confirmation of Agent's Authority to Act in Event of Default.
Subject to the terms and conditions of this Agreement (including without
limitation any required approval or direction of the Majority Banks or Banks, as
applicable, to be obtained by or given to Agent hereunder) Agent, in its
capacity as Agent, is hereby expressly authorized to act in all litigation by or
against Agent and in all other respects as the representative of the Banks to
the full extent of any approval or direction of the Majority Banks or the Banks,
as applicable, obtained by or given to Agent hereunder. Without necessarily
accepting service of process or designating Agent to do so in its stead, each
Bank hereby agrees with each other Bank and with Agent, but without intending to
confer or conferring any rights on any other party, (a) that it shall be bound
by any litigation brought by or against Agent by the Company, any Subsidiary,
any of the Designated Borrowers or any other party in connection with the
Purchase Money Indebtedness or any other rights, duties or obligations arising
hereunder or under this Agreement or the other Purchase Money Loan Documents and
(b) that it now irrevocably waives the defense of procedural impediment or
failure to name or join such Bank as an indispensable party. In conducting such
litigation hereunder on behalf of the Banks, Agent shall at all times be
indemnified by the Banks as provided herein. Agent shall undertake to give each
Bank prompt written notice of any litigation commenced against Agent and/or the
Banks with respect to this Agreement or the other Purchase Money Loan Documents
or any matter referred to herein or therein.
9.10 Authority of Agent to Enforce Purchase Money Notes and This Agreement.
Each Bank, subject to the terms and conditions of this Agreement (including
without limitation any required approval or direction of the Majority Banks or
the Banks, as applicable, to be obtained by or given to the Agent hereunder),
authorizes the Agent with full power and authority as attorney-in-fact to
institute and maintain actions, suits or proceedings for the collection and
enforcement of the Purchase Money Notes, this Agreement and the other Purchase
Money Loan Documents and to file such proofs of debt or other documents as may
be necessary to have the claims of the Banks allowed in any proceeding relative
to the Company, any of its Subsidiaries, any of the Designated Borrowers
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or each such party's creditors or affecting each such party's properties, and to
take such other actions which Agent considers to be necessary or desirable for
the protection, collection and enforcement of the Purchase Money Notes, this
Agreement or the other Purchase Money Loan Documents, but in each case only to
the extent of any required approval or direction of the Majority Banks or the
Banks, as applicable, obtained by or given to the Agent hereunder.
9.11 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such, to the extent not reimbursed by the Company or the Designated
Borrowers, pro rata according to their respective Percentages, from and against
any and all claims, liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any of the
other Purchase Money Loan Documents or any action taken or omitted to be taken
or suffered in good faith by the Agent hereunder, provided that no Bank shall be
liable for any portion of any of the foregoing items resulting from the gross
negligence or willful misconduct of the Agent or any of its officers, employees,
directors or agents.
9.12 Knowledge of Default. It is expressly understood and agreed that the
Agent shall be entitled to assume that no Default or Event of Default has
occurred and is continuing, unless the officers of the Agent immediately
responsible for matters concerning this Agreement shall have actual (rather than
constructive) knowledge of such occurrence or shall have been notified in
writing by a Bank that such Bank considers that a Default or an Event of Default
has occurred and is continuing, and specifying the nature thereof. Upon
obtaining actual knowledge of any Default or Event of Default as described
above, the Agent shall promptly, but in any event within three (3) Business Days
after obtaining knowledge thereof, notify each Bank of such Default or Event of
Default and the action, if any, the Agent proposes be taken with respect
thereto.
9.13 Agent's Authorization; Action by Banks. Except as otherwise expressly
provided herein, whenever the Agent is authorized and empowered hereunder on
behalf of the Banks to give any approval or consent, or to make any request, or
to take any other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other Purchase Money
Loan Documents), the Agent shall be required to give such approval or consent,
or to make such request or to take such other action only when so requested in
writing by the Majority Banks or the Banks, as applicable hereunder. Action that
may be taken by Majority Banks or all of the Banks, as the case may be (as
provided for hereunder), may be taken (i) pursuant to a vote at a meeting (which
may be held by telephone conference call) as to which all of the Banks have been
given reasonable advance notice (subject to the requirement that amendments,
waivers or consents under Section 10.11 hereof be made in writing by the
Majority Banks or all of the Banks, as applicable), or (ii) pursuant to the
written consent of the requisite Percentages of the Banks as required hereunder,
provided that all of the Banks are given reasonable advance notice of the
requests for such consent.
9.14 Enforcement Actions by the Agent. Except as otherwise expressly
provided under this Agreement or in any of the other Purchase Money Loan
Documents and subject to the terms hereof, Agent will take such action, assert
such rights and pursue such remedies under this
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Agreement and the other Purchase Money Loan Documents as the Majority Banks or
all of the Banks, as the case may be (as provided for hereunder), shall direct.
Except as otherwise expressly provided in any of the Purchase Money Loan
Documents, Agent will not (and will not be obligated to) take any action, assert
any rights or pursue any remedies under this Agreement or any of the other
Purchase Money Loan Documents in violation or contravention of any express
direction or instruction of the Majority Banks or all of the Banks, as the case
may be (as provided for hereunder). Agent may refuse (and will not be obligated)
to take any action, assert any rights or pursue any remedies under this
Agreement or any of the other Purchase Money Loan Documents in the absence of
the express written direction and instruction of the Majority Banks or all of
the Banks, as the case may be (as provided for hereunder). In the event Agent
fails, within a commercially reasonable time, to take such action, assert such
rights, or pursue such remedies as the Majority Banks or all of the Banks, as
the case may be (as provided for hereunder), shall direct in conformity with
this Agreement, the Majority Banks or all of the Banks, as the case may be (as
provided for hereunder), shall have the right to take such action, to assert
such rights, or pursue such remedies on behalf of all of the Banks unless the
terms hereof otherwise require the consent of all the Banks to the taking of
such actions (in which event all of the Banks must join in such action).
9.15 Co-Agent. ▇▇▇▇▇▇ Bank has been designated by the Company as "Co-Agent"
under this Agreement. Other than its rights and remedies as a Bank hereunder,
Co-Agent shall have no administrative, collateral or other rights or
responsibilities, provided, however, that Co-Agent shall be entitled to the
benefits afforded to Agent under Sections 9.5 and 9.6 hereof.
10. MISCELLANEOUS
10.1 Accounting Principles. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done in accordance with GAAP.
10.2 Consent to Jurisdiction. The Company and each of the Designated
Borrowers hereby irrevocably submit to the non-exclusive jurisdiction of any
United States Federal or Michigan state court sitting in Detroit in any action
or proceeding arising out of or relating to this Agreement or any of the other
Purchase Money Loan Documents and the Company and each of the Designated
Borrowers hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in any such United States Federal or
Michigan state court. Each of the Designated Borrowers irrevocably appoints the
Company as its agent for service of process. The Company and each of the
Designated Borrowers irrevocably consent to the service of any and all process
in any such action or proceeding brought in any court in or of the State of
Michigan by the delivery of copies of such process to the Company at its address
specified on the signature page hereto or by certified mail directed to such
address. Nothing in this Section shall affect the right of the Banks and the
Agent to serve process in any other manner permitted by law or limit the right
of the Banks or the Agent (or any of them) to bring any such action or
proceeding against the Company or any of the Designated Borrowers or any of its
or their property in the courts of any other jurisdiction. The Company and each
of the Designated Borrowers hereby irrevocably
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waive any objection to the laying of venue of any such suit or proceeding in the
above described courts.
10.3 Law of Michigan. This Agreement, the Purchase Money Notes and the
other Purchase Money Loan Documents have been delivered at Detroit, Michigan,
and shall be governed by and construed and enforced in accordance with the laws
of the State of Michigan, except to the extent that the Uniform Commercial Code,
other personal property law or real property law of a jurisdiction where
Collateral is located is applicable and except as and to the extent expressed to
the contrary in any of the Purchase Money Loan Documents. Whenever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
10.4 Interest. In the event the obligation of the Company or the Designated
Borrowers to pay interest on the principal balance of any of the Purchase Money
Notes is or becomes in excess of the maximum interest rate which the Company or
any of the Designated Borrowers is permitted by law to contract or agree to pay,
giving due consideration to the execution date of this Agreement, then, in that
event, the rate of interest applicable with respect to such Bank's Percentage
shall be deemed to be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to have been payments in
reduction of principal and not of interest.
10.5 Closing Costs; Other Costs. Each of the Company and the Designated
Borrowers, jointly and severally, shall pay or reimburse (a) Agent for payment
of, on demand, all reasonable closing costs and expenses, including, by way of
description and not limitation, reasonable in-house and outside attorney fees
and advances, appraisal and accounting fees, lien search fees, and required
travel costs, incurred by Agent in connection with the commitment, consummation
and closing of the loans or advances contemplated hereby, or in connection with
any refinancing or restructuring of the loans or Advances provided under this
Agreement or the other Purchase Money Loan Documents, or any amendment thereof
requested by Company or any of the Designated Borrowers, and (b) Agent and each
of the Banks, as the case may be, for all stamp and other taxes and duties
payable or determined to be payable in connection with the execution, delivery,
filing or recording of this Agreement and the other Purchase Money Loan
Documents and the consummation of the transactions contemplated hereby, and any
and all liabilities with respect to or resulting from any delay in paying or
omitting to pay such taxes or duties. Furthermore, all reasonable costs and
expenses, including without limitation attorney fees, incurred by Agent and,
after the occurrence and during the continuance of an Event of Default, by the
Banks, in revising, preserving, protecting, exercising or enforcing any of its
or any of the Banks' rights against Company or any of the Designated Borrowers,
or otherwise incurred by Agent and the Banks in connection with any Event of
Default or the enforcement of the loans (whether incurred through negotiations,
legal proceedings or otherwise), including by way of description and not
limitation, such charges in any court or bankruptcy proceedings or arising out
of any claim or action by any person against Agent or any Bank which would not
have been asserted were it not for Agent's or such Bank's relationship with
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Company and the Designated Borrowers hereunder or otherwise, shall also be paid
by Company and each of the Designated Borrowers. All of the amounts required to
be paid by Company and Designated Borrowers hereunder and not paid forthwith
upon demand, as aforesaid, shall bear interest, from the date incurred to the
date payment is received by Agent, at the Prime-based Rate, plus two percent
(2%).
10.6 Notices. Except as otherwise provided herein, all notices or demands
hereunder to the parties hereto shall be sufficient if made in writing and
delivered by messenger or deposited in the mail, postage prepaid, certified
mail, and addressed to the parties as set forth on the signature pages of this
Agreement and to each of the Designated Borrowers at the Company's address. Any
notice or demand given to the Company hereunder shall be deemed given to each of
the Designated Borrowers, whether or not said notice or demand is addressed to
or received by such Designated Borrowers.
10.7 Further Action. Company and each of the Designated Borrowers, from
time to time, upon written request of Agent, will make, execute, acknowledge and
deliver or cause to be made, executed, acknowledged and delivered, all such
further and additional instruments, and take all such further action, as may be
reasonably required to carry out the intent and purpose of this Agreement, and
to provide for Advances under and payment of the Purchase Money Notes, according
to the intent and purpose herein and therein expressed.
10.8 Successors and Assigns; Assignments and Participations.
(a) This Agreement shall be binding upon and shall inure to the
benefit of Company and the Designated Borrowers and the Banks and their
respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company or
any of the Designated Borrowers, of its rights or duties hereunder, and no such
assignment shall be made (or effective) without the prior written approval of
the Banks.
(c) The Company, the Designated Borrowers and Agent acknowledge that
each of the Banks may at any time and from time to time, subject to the terms
and conditions hereof, assign or grant participations in such Bank's rights and
obligations hereunder and under the other Purchase Money Loan Documents to any
commercial bank, the identity of which institution is approved by Company and
Agent, such approval not to be unreasonably withheld or delayed; provided,
however, that (i) the approval of Company shall not be required upon the
occurrence and during the continuance of a Default or Event of Default and (ii)
the approval of Company and Agent shall not be required for any such sale,
transfer, assignment or participation to the Affiliate of an assigning Bank, any
other Bank or any such sale, transfer, assignment, participation or pledge to
any Federal Reserve Bank ("Federal Reserve Transfer"). The Company and each of
the Designated Borrowers authorize each Bank to disclose to any prospective
assignee or participant, once approved by Company and Agent, any and all
financial information in such Bank's possession concerning the Company and the
Designated Borrowers which has been delivered to such Bank pursuant to this
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Agreement; provided that each such prospective participant shall execute a
confidentiality agreement consistent with the terms of Section 10.13 hereof.
(d) Each assignment by a Bank of any portion of its rights and
obligations hereunder and under the other Purchase Money Loan Documents (other
than any Federal Reserve Transfer) shall be made pursuant to an Assignment
Agreement substantially (as determined by Agent) in the form of Exhibit N to the
Revolving Credit Agreement (with appropriate conforming modifications and
insertions acceptable to Agent) and shall be subject to the terms and conditions
hereof, and to the following restrictions:
(i) each assignment shall cover all of the Purchase
Money Notes issued by Company and the Designated
Borrowers hereunder to the assigning Bank (and not
any particular note or notes), and shall be for a
fixed and not varying percentage thereof, with the
same percentage applicable to each such Purchase
Money Note and shall also cover all Notes and
other Indebtedness under the Revolving Credit
Agreement;
(ii) any assignment hereunder may be made only
concurrently with a permitted assignment of the
Indebtedness under the Revolving Credit Agreement
and the percentage of the Purchase Money
Indebtedness assigned hereunder shall be the same
percentage as the percentage of Indebtedness being
concurrently assigned under the Revolving Credit
Agreement; and
(iii) no assignment shall violate any "blue sky" or
other securities law of any jurisdiction or shall
require the Company, the Designated Borrowers or
any other Person to file a registration statement
or similar application with the United States
Securities and Exchange Commission (or similar
state regulatory body) or to qualify under the
"blue sky" or other securities laws of any
jurisdiction.
In connection with any such assignment, Company, the Designated Borrowers and
Agent shall be entitled to continue to deal solely and directly with the
assigning Bank in connection with the interest so assigned until (x) the Agent
shall have received a notice of assignment duly executed by the assigning Bank
and an Assignment Agreement (with respect thereto) duly executed by the
assigning Bank and each assignee; and (y) the assigning Bank shall have
delivered to the Agent the original of each Purchase Money Note held by the
assigning Bank under this Agreement. From and after the date on which the Agent
shall notify Company and the assigning Bank that the foregoing conditions shall
have been satisfied and all consents (if any) required shall have been given,
the assignee thereunder shall be deemed to be a party to this Agreement. To the
extent that rights and obligations hereunder shall have been assigned to such
assignee as provided in such notice of assignment (and Assignment Agreement),
such assignee shall have the rights and obligations of a Bank under this
Agreement and the other Purchase Money Loan Documents (including without
limitation the right to receive fees payable hereunder in respect of the period
following such
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assignment). In addition, the assigning Bank, to the extent that rights and
obligations hereunder shall have been assigned by it as provided in such notice
of assignment and the Assignment Agreement, but not otherwise, shall relinquish
its rights and be released from its obligations under this Agreement and the
other Purchase Money Loan Documents. It is acknowledged and agreed by the
parties hereto that any Bank which makes a Federal Reserve Transfer shall remain
fully obligated hereunder.
Within five (5) Business Days following Company's receipt of notice from the
Agent that Agent has accepted and executed a notice of assignment and the duly
executed Assignment Agreement, Company and the Designated Borrowers shall, to
the extent applicable, execute and deliver to the Agent in exchange for any
surrendered Purchase Money Note(s), new Purchase Money Note(s) payable to the
order of the assignee in an amount equal to the amount assigned to it pursuant
to such notice of assignment (and Assignment Agreement), and with respect to the
portion of the Purchase Money Indebtedness retained by the assigning Bank, to
the extent applicable, new Purchase Money Note(s) payable to the order of the
assigning Bank in an amount equal to the amount retained by such Bank hereunder
shall be executed and delivered by the Company and each of the Designated
Borrowers, and applicable Agent, the Banks and the Company and the Designated
Borrowers acknowledge and agree that any such new Purchase Money Note(s) shall
be given in renewal and replacement of the surrendered Purchase Money Notes and
shall not effect or constitute a novation or discharge of the Purchase Money
Indebtedness evidenced by any surrendered Purchase Money Note, and each such new
Purchase Money Note may contain a provision confirming such agreement. In
addition, promptly following receipt of such Purchase Money Notes, Agent shall
prepare and distribute to Company, the Designated Borrowers and each of the
Banks a revised Exhibit C to this Agreement setting forth the applicable new
Percentages of the Banks (including the assignee Bank), taking into account such
assignment.
(e) Each Bank agrees that any participation agreement permitted
hereunder shall comply with all applicable laws and shall be subject to the
following restrictions (which shall be set forth in the applicable participation
agreement):
(i) such Bank shall remain the holder of its Purchase
Money Notes hereunder, notwithstanding any such
participation;
(ii) except as expressly set forth in this Section
10.8(e) with respect to rights of setoff and the
benefits of Section 8 hereof, a participant shall
have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or
grant any sub-participations in its participation
interest hereunder or any part thereof; and
(iv) such Bank shall retain the sole right and
responsibility to enforce the obligations of the
Company and Designated Borrowers relating to the
Purchase Money Notes and the other Purchase Money
Loan
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Documents, including, without limitation, the
right to proceed against any of the Guarantors, or
cause Agent to do so (subject to the terms and
conditions hereof), and the right to approve any
amendment, modification or waiver of any provision
of this Agreement without the consent of the
participant, except for those matters covered by
Section 10.11(a) through (e) and (h) hereof
(provided that a participant may exercise approval
rights over such matters only on an indirect
basis, acting through such Bank, and Company, the
Designated Borrowers, Agent and the other Banks
may continue to deal directly with such Bank in
connection with such Bank's rights and duties
hereunder), and shall otherwise be in form
satisfactory to Agent.
Company and the Designated Borrowers each agrees that each participant shall be
deemed to have the right of setoff under Section 7.4 hereof in respect of its
participation interest in amounts owing under this Agreement and the other
Purchase Money Loan Documents to the same extent as if the Purchase Money
Indebtedness were owing directly to it as a Bank under this Agreement, shall be
subject to the pro rata recovery provisions of Section 7.3 hereof and that each
participant shall be entitled to the benefits of Section 8 hereof. The amount,
terms and conditions of any participation shall be as set forth in the
participation agreement between the issuing Bank and the Person purchasing such
participation, and none of the Company, the Designated Borrowers, the Agent and
the other Banks shall have any responsibility or obligation with respect
thereto, or to any Person to whom any such participation may be issued. No such
participation shall relieve any issuing Bank of any of its obligations under
this Agreement or any of the other Purchase Money Loan Documents, and all
actions hereunder shall be conducted as if no such participation had been
granted.
(f) Nothing in this Agreement, the Purchase Money Notes or the other
Purchase Money Loan Documents expressed or implied, is intended to or shall
confer on any Person other than the respective parties hereto and thereto and
their successors and assignees permitted hereunder and thereunder any benefit or
any legal or equitable right, remedy or other claim under this Agreement, the
Purchase Money Notes or the other Purchase Money Loan Documents.
10.9 Indulgence. No delay or failure of Agent and the Banks in exercising
any right, power or privilege hereunder shall affect such right, power or
privilege, nor shall any single or partial exercise thereof preclude any other
or further exercise thereof, or the exercise of any other right, power or
privilege. The rights of Agent and the Banks hereunder are cumulative and are
not exclusive of any rights or remedies which Agent and the Banks would
otherwise have.
10.10 Counterparts. This Agreement may be executed in several counterparts,
and each executed copy shall constitute an original instrument, but such
counterparts shall together constitute but one and the same instrument.
10.11 Amendment and Waiver. No amendment or waiver of any provision of this
Agreement or any other Purchase Money Loan Document, or consent to any departure
by the
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Company or any of the Designated Borrowers therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Majority Banks
(or signed by the Agent at the direction of the Majority Banks), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Banks (or signed by
the Agent at the direction of all the Banks), do any of the following: (a)
subject any of the Banks to any additional obligations, (b) reduce the principal
of, or interest on, the Purchase Money Notes or any fees or other amounts
payable hereunder, (c) postpone any date fixed for any payment of principal of,
or interest on, the Purchase Money Notes or any fees or other amounts payable
hereunder, (d) waive any Event of Default specified in or grace period provided
under Sections 6.1(a) or 6.1(b) hereof, (e) release or defer the granting or
perfecting of a lien or security interest in any Collateral or release any
Guarantor, any indemnity or similar undertaking provided by any Person, except
as shall be otherwise expressly provided in this Agreement or any other Purchase
Money Loan Document, (f) take any action which requires the signing of all Banks
pursuant to the terms of this Agreement or any other Purchase Money Loan
Document, (g) change the aggregate unpaid principal amount of the Purchase Money
Notes which shall be required for the Banks or any of them to take any action
under this Agreement or any other Purchase Money Loan Document, (h) change the
definition of "Majority Banks" or (i) change this Section 10.11, and provided
further, however, that no amendment, waiver, or consent shall, unless in writing
and signed by the Agent in addition to all the Banks, affect the rights or
duties of the Agent under this Agreement or any other Purchase Money Loan
Document, all references in this Agreement to "Banks" or "the Banks" shall refer
to all Banks, unless expressly stated to refer to Majority Banks.
10.12 Taxes and Fees. Should any tax (other than a tax based upon the net
income of any Bank or Agent by any jurisdiction where a Bank or Agent is
located), recording or filing fee become payable in respect of this Agreement or
any of the other Purchase Money Loan Documents or any amendment or modification
hereto or thereto, or supplement hereof or thereof, the Company and each of the
Designated Borrowers, jointly and severally, agrees to pay the same, together
with any interest or penalties thereon (unless the failure to pay such tax on a
timely basis is not due to the action or inaction of the Company or any of its
Subsidiaries) and agrees to hold the Agent and the Banks harmless with respect
thereto.
10.13 Confidentiality. Each Bank agrees that without the prior consent of
Company, it will not disclose (other than to its employees, to another Bank or
to its auditors or counsel) any information with respect to the Company or any
of its Subsidiaries or any of the Designated Borrowers which is furnished
pursuant to the terms and conditions of this Agreement or any of the other
Purchase Money Loan Documents or which is designated (in writing) by Company or
any of the Designated Borrowers to be confidential; provided that any Bank may
disclose any such information (a) as has become generally available to the
public or has been lawfully obtained by such Bank from any third party under no
duty of confidentiality to the Company, (b) as may be required in any report,
statement or testimony submitted to, or in respect of any inquiry, by, any
municipal, state or federal regulatory body having or claiming to have
jurisdiction over such Bank, including the Board of Governors of the Federal
Reserve System of the United States or the Federal Deposit Insurance Corporation
or similar organizations (whether in the United States or elsewhere)
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or their successors, (c) as may be required in respect of any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Bank, and (e) to any
permitted transferee or assignee or to any approved participant of, or with
respect to, the Purchase Money Notes, as aforesaid.
10.14 Withholding Taxes. If any Bank is not incorporated under the laws of
the United States or a state thereof, such Bank shall promptly deliver to the
Agent two executed copies of (i) Internal Revenue Service Form 1001 specifying
the applicable tax treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding on interest
payments to such Bank, (ii) Internal Revenue Service Form 4224 evidencing that
the income to be received by such Bank hereunder is effectively connected with
the conduct of a trade or business in the United States or (iii) other evidence
satisfactory to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or supplement any
such form or evidence as required to insure that it is accurate, complete and
non-misleading at all times. Promptly upon notice from the Agent of any
determination by the Internal Revenue Service that any payments previously made
to such Bank hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate amount
required to be withheld from such payments over the aggregate amount actually
withheld by the Agent. In addition, from time to time upon the reasonable
request and at the sole expense of the Company or any of the Designated
Borrowers, each Bank and the Agent shall (to the extent it is able to do so
based upon applicable facts and circumstances), complete and provide the Company
or any of the Designated Borrowers with such forms, certificates or other
documents as may be reasonably necessary to allow the Company or the Designated
Borrower, as applicable, to make any payment under this Agreement or the other
Purchase Money Loan Documents without any withholding for or on the account of
any tax under Section 7.1(d) hereof (or with such withholding at a reduced
rate), provided that the execution and delivery of such forms, certificates or
other documents does not adversely affect or otherwise restrict the right and
benefits (including without limitation economic benefits) available to such Bank
or the Agent, as the case may be, whether under this Agreement or any of the
other Purchase Money Loan Documents or otherwise, or whether under or in
connection with any transactions not related to the transactions contemplated
hereby.
10.15 Effective Upon Execution. This Agreement shall become effective upon
the Effective Date, and shall remain effective until the Purchase Money
Indebtedness has been repaid and discharged in full and no commitment to extend
any credit hereunder remains outstanding. By execution of the aforesaid Purchase
Money Notes, the Designated Borrowers shall become obligated hereunder.
10.16 Severability. In case any one or more of the obligations of the
Company or any of the Designated Borrowers under this Agreement, the Purchase
Money Notes or any of the other Purchase Money Loan Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Company or the Designated
Borrowers shall not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability in one jurisdiction shall not affect
the validity, legality or enforceability of the
39
45
obligations of the Company or the Designated Borrowers under this Agreement, the
Purchase Money Notes or any of the other Purchase Money Loan Documents in any
other jurisdiction.
10.17 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for convenience of reference
only and shall in no way modify or affect any of the terms or provisions hereof.
10.18 Construction of Certain Provisions. If any provision of this
Agreement or any of the other Purchase Money Loan Documents refers to any action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person, whether or not expressly specified in such provision.
10.19 Independence of Covenants. Each covenant hereunder shall be given
independent effect (subject to any exceptions stated in such covenant) so that
if a particular action or condition is not permitted by any such covenant
(taking into account any such stated exception), the fact that it would be
permitted by an exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or such condition exists.
10.20 Reliance on and Survival of Various Provisions. All terms, covenants,
agreements, representations and warranties of the Company or any party to any of
the Purchase Money Loan Documents made herein or in any of the other Purchase
Money Loan Documents or in any certificate, report, financial statement or other
document furnished by or on behalf of the Company, any such party in connection
with this Agreement or any of the other Purchase Money Loan Documents shall be
deemed to have been relied upon by the Banks, notwithstanding any investigation
heretofore or hereafter made by any Bank or on such Bank's behalf, and those
covenants and agreements of the Company and the Designated Borrowers set forth
in Section 8.8 hereof (together with any other indemnities of the Company or the
Designated Borrowers contained elsewhere in this Agreement or in any of the
other Purchase Money Loan Documents) and of Banks set forth in Section 10.13
hereof shall, notwithstanding anything to the contrary contained in this
Agreement, survive the repayment in full of the Purchase Money Indebtedness and
the termination of any commitments to make Advances hereunder.
10.21 Complete Agreement; Amendment and Restatement. This Agreement, the
Purchase Money Notes, any requests for Advances hereunder, the other Purchase
Money Loan Documents and any agreements, certificates, or other documents given
to secure the Purchase Money Indebtedness, and the Revolving Credit Agreement
and the other Loan Documents (as defined therein), to the extent referenced
herein or applicable hereunder, contain the entire agreement of the parties
hereto with respect to the transactions contemplated hereby, and none of the
parties hereto shall be bound by anything not expressed in writing.
* * *
[Signatures follow on succeeding pages]
40
46
WITNESS the due execution hereof as of the day and year first above
written.
COMPANY: AGENT:
WALBRO CORPORATION COMERICA BANK, As Agent
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- -------------------------
Its: Chief Financial Officer Its: Vice President
and Treasurer
------------------------ ------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
BANKS:
COMERICA BANK
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Its: Vice President
-----------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Vice President
-----------------------
(First Signature Page to Purchase Money Loan Agreement)
47
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Its: Vice President
-----------------------
THE BANK OF TOKYO-MITSUBISHI
LTD., CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Its: Deputy General Manager
-----------------------
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Its: Vice President
-----------------------
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Its: Vice President
-----------------------
(Second Signature Page to Purchase Money Loan Agreement)
48
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK NEDERLAND", NEW
YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Its: Vice President
--------------------------
And By: /s/ W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Its: Vice President
--------------------------
(Third Signature Page to Purchase Money Loan Agreement)
49
SCHEDULE 2.1
Purchase Money Loans to be funded on the Effective Date, including description
(with other identifying information) of Machinery, Equipment, Fixtures or other
Fixed Assets to be purchased with proceeds of Purchase Money Loan on the
Effective Date
(1) $154,437.50 Purchase Money Loan to Walbro Automotive Corporation
Collateral: Coordinate Measuring Machine
Serial No. 014108004
Purchase Price: $ 220,625
(x) Advance Rate .70
-----------
Loan Amount: $154,437.50
Location: Meriden, Connecticut (Fixture Filing)
(2) $146,797.00 Purchase Money Loan to Walbro Automotive Corporation
Collateral: HPM Model H400-32 Injection Molding Machine
(400 ton)
Serial No. 96429
Purchase Price: $208,727.20
(x) Advance Rate .70
-----------
Loan Amount: $146,109.00
Location: Meriden, Connecticut (Fixture Filing)
(3) $2,551,000 Purchase Money Loan to Walbro Automotive Corporation
Collateral: 5th ▇▇▇▇▇ Kautex KBS2-241D Robot Machine Serial No.
▇▇-▇▇▇-▇▇▇ (with mounting frame and other accoutrements)
Purchase Price: DM 6,632,783.29 @ DM 1.82/$1.00 [$3,644,386]
(x) Advance Rate .70
--------------------------------------------
Loan Amount: $2,551,000
Location: Ossian, ▇▇▇▇▇ County, Indiana (Fixture Filing)
50
EXHIBIT A
FORM OF NOTICE OF AND
PURCHASE MONEY LOAN INITIAL REQUEST
No. Dated:___________
TO: Comerica Bank ("Agent")
RE: Walbro Corporation Purchase Money Loan Agreement dated as of August ___,
1997 by and among Walbro Corporation (the "Company"), the Banks signatories
thereto and Comerica Bank, as Agent (as amended or otherwise modified from
time to time, the "Purchase Money Loan Agreement")
[The Company][The undersigned Designated Borrower, with the
countersignature of Company], pursuant to Sections 2.1 and 2.8A of the Purchase
Money Loan Agreement, requests a Purchase Money Loan from the Banks, as follows:
A. Attached hereto as Attachment I is a list of the specific machinery,
equipment, fixtures or other fixed assets to be purchased with the
proceeds of the requested Purchase Money Loan ("Collateral"), together
with, for each item on the list:
1. a description thereof, (including serial number(s));
2. sales brochures or other sales literature, if any;
3. the proposed invoice or purchase order;
4. proposed location after acquisition thereof of each such item;
5. whether such item may be affixed to real estate or otherwise
become a fixture under applicable law and the legal description
of the applicable real estate (together with ownership
information as to property owner(s) and/or mortgagees and
titlework in connection with such property) to which such item
may become affixed); and
6. completed UCC-1 and (if applicable) UCC-2 financing statements,
as required to perfect on each item on list.
B. The proposed Purchase Price [net of any discounts, shipping,
installation or other similar charges, and excluding capitalized
interest or finance charges] for the machinery, equipment, fixtures or
other fixed assets listed on Attachment I: $_____________.
51
.
C. 70% of proposed Purchase Price: $____________________.
D. Amount of Purchase Money Loan requested (which shall equal item C):
$________, to be disbursed as follows:
[ ] Comerica Bank Account No. ______________
[ ] Other:
_________________________________
C. Requested funding date (which shall be at least twenty (20) but not
more than sixty (60) Business Days after the date of this Request (the
"Funding Date")):______________
II. In furtherance of the foregoing, the undersigned [Company] [Designated
Borrower with countersignature of Company] represents, warrants and certifies to
the matters specified in Section 2.8C of the Purchase Money Loan Agreement and
to the matters specified in Section I of this Request.
Furthermore, the undersigned Company or Designated Borrower, as the case
may be, hereby pledges, assigns and transfers to Agent, for the benefit of the
Banks, and grants to Agent for the benefit of the Banks, a security interest in,
and a lien on the machinery, equipment, fixtures and/or fixed assets described
on Attachment I hereto, and all proceeds thereof, to the extent such undersigned
has (or will acquire) any rights, title or interest therein, all in accordance
with the terms and conditions of the Purchase Money Security Agreement to secure
the requested Purchase Money Loan and the associated Purchase Money
Indebtedness.
Upon the funding by the Banks of the requested Purchase Money Loan in
accordance with Section 2.1 of the Purchase Money Loan Agreement, this Purchase
Money Loan Initial Request shall constitute the grant of a security interest and
lien on the specific collateral described on Attachment 1 hereto, and the
proceeds and products thereof, all on the terms and conditions set forth in the
Purchase Money Security Agreement, which terms and conditions shall be
incorporated by reference herein; provided, however that the following terms as
used in this Request (after the incorporation by reference of the terms and
conditions of the Purchase Money Security Agreement) shall have the following
meanings: the term "Collateral" shall mean the machinery, equipment, fixtures
and fixed assets listed on Attachment I hereto and all substitutions therefor,
and all proceeds and all products thereof, including insurance proceeds; the
term "Purchase Money Loan Initial Request" shall mean this Purchase Money Loan
Initial Request; and the term "Purchase Money Loan" shall be the "Purchase Money
Loan" requested pursuant to this Purchase Money Loan Initial Request.
Capitalized terms used herein, except as defined to the contrary, have the
meanings given them in the Purchase Money Loan Agreement.
2
52
WALBRO CORPORATION
By:_________________________________________
Its:________________________________________
[Designated Borrower]
By:_______________________________________
Its:________________________________________
Acknowledged and Accepted
as of____________________ , 199__
COMERICA BANK, as Agent
By:________________________________
Its:________________________________
[To be signed by Agent upon funding of the Purchase
Money Loan]
3
53
Attachment I
to
Purchase Money Loan Initial Request
1. Describe Collateral, including serial numbers or attach a description and
attach sales brochures as sales incentive (if any) and invoice or purchase
order
2. Location of Collateral:__________________________________________
3. Will then become affixed to real estate
[ ] yes, may become a fixture
[ ] no, will not become a fixture
4. If yes to number 3, attach legal description of real estate, ownership
information (as to owners and mortgagees) and titlework.
4
54
EXHIBIT B-1
PURCHASE MONEY NOTE
[COMPANY]
$___________________ August ___, 1997
On or before the Purchase Money Loan Maturity Date, FOR VALUE RECEIVED,
Walbro Corporation, a Delaware corporation ("Company"), promises to pay to the
order of [insert Bank] ("Bank") at Detroit, Michigan, care of Agent, in lawful
money of the United States of America, the sum of [Insert Amount derived from
Percentages] Dollars ($___________), or so much as said sum as may from time to
time have been advanced and then be outstanding hereunder pursuant to the
Walbro Corporation Purchase Money Loan Agreement dated as of August ___, 1997,
made by and among the Company, certain Designated Borrowers and certain banks
signatory thereto, including the Bank, and Comerica Bank, as Agent for such
banks, as the same may be amended or otherwise modified from time to time (the
"Agreement"), together with interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the Applicable
Interest Rate from time to time applicable thereto under the Agreement or as
otherwise determined thereunder, and interest shall be computed, assessed and
payable as set forth in the Agreement.
This Note is a note under which advances (including refundings and
conversions), may be made from time to time, but only in accordance with the
terms and conditions of the Agreement. This Note evidences borrowings under, is
subject to, is secured in accordance with, and may be accelerated or matured
under, the terms of the Agreement, to which reference is hereby made.
Capitalized terms used herein, except as defined to the contrary, shall have the
meanings given them in the Agreement.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Company hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
55
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
WALBRO CORPORATION
By:_________________________________
Its:________________________________
2
56
EXHIBIT B-2
PURCHASE MONEY NOTE
(Designated Borrowers)
$_______________________ August ___, 1997
On or before the Purchase Money Loan Maturity Date, FOR VALUE RECEIVED,[___
_________________] [Designated Borrower] ("Borrower"), promises to pay to the
order of [Insert Bank] ("Bank") at Detroit, Michigan, care of Agent, in lawful
money of the United States of America so much of the sum of [insert amount
derived from Percentages] Dollars ($ ), as may from time to time have been
advanced and then be outstanding hereunder pursuant to the Walbro Corporation
Purchase Money Loan Agreement dated as of August ___, 1997, made by and among
Walbro Corporation, the Designated Borrowers, including the Borrower, and
certain banks signatory thereto, including the Bank, and Comerica Bank as Agent
for such banks, as the same may be amended or otherwise modified from time to
time ("Agreement"), together with interest thereon as hereinafter set forth.
By executing and delivering this Note to Bank, [ ] hereby assumes and
agrees, with respect to all Advances to it hereunder, to be bound by all of the
terms and conditions of the Agreement as fully as though such terms and
conditions were set forth herein.
Each of the Advances made hereunder shall bear interest at the Applicable
Interest Rate from time to time applicable thereto under the Agreement or as
otherwise determined thereunder, and interest shall be computed, assessed and
payable as set forth in the Agreement.
This Note is a note under which advances (including refundings and
conversions), may be made from time to time, but only in accordance with the
terms and conditions of the Agreement. This Note evidences borrowings under, is
subject to, is secured in accordance with, and may be accelerated or matured
under, the terms of the Agreement to which reference is hereby made. Capitalized
terms used herein, except as defined to the contrary, shall have the meanings
given them in the Agreement.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Borrower hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party
57
now or hereafter liable hereon or any present or subsequent owner of any
property, real or personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
[__________________________________ ]
By:___________________________________
Its:__________________________________
2
58
EXHIBIT C
BANKS PERCENTAGES
Comerica Bank 33.32%
▇▇▇▇▇▇ Trust and Savings Bank 14.81%
National City Bank 11.11%
Societe Generale 10.19%
The Bank of Tokyo Mitsubishi, 10.19%
Ltd.
Rabobank Nederland 10.19%
The Bank of New York 10.19%
Total 100%
3
59
EXHIBIT D
FORM OF PURCHASE MONEY RATE REQUEST
No.______________________ Dated:_____________
To: Comerica Bank - Agent
RE: Walbro Corporation Purchase Money Loan Agreement dated as of August ____,
1997 by and among Walbro Corporation (the "Company"), the Designated
Borrowers, the Banks signatories thereto and Comerica Bank, as Agent (as
amended or otherwise modified from time to time, the "Purchase Money Loan
Agreement")
Pursuant to the Purchase Money Loan Agreement, the [Company] [Designated
Borrower] in accordance with Section 2.8B of the Purchase Money Loan Agreement,
hereby requests that the Banks refund or convert, as applicable, an Advance of
the Purchase Money Loan from Banks to the undersigned, as follows:
A. Date of requested Refund or Conversion of Advance:____________________
_____
B. Amount of Advance:
$____________________
C. Type of Activity:
1. Refunding []
2. Conversion []
D. Interest Rate:
1. Prime-based Rate []
2. Eurocurrency-based Rate []
E. Interest Period (for Eurocurrency-based Advances only):
1. One (1) Month []
2. Two (2) Months []
3. Three (3) Months []
The Company certifies to the matters specified in Section 2.8C of the
Agreement.
60
F. Defined Terms
Capitalized terms used herein, unless specifically defined to the contrary
herein, have the meanings given them in the Purchase Money Loan Agreement.
Dated this_________day of____________, 199__.
WALBRO CORPORATION
By:_____________________________
Its:_____________________________
[DESIGNATED BORROWER]
By:_____________________________
Its:_____________________________
2
61
EXHIBIT E
FORM OF CALL OPTION NOTICE
Dated:_____________
TO: [Walbro Corporation]
[Designated Borrower]
From: Comerica Bank ("Agent")
Re: Walbro Corporation Purchase Money Loan Agreement dated as of August ___,
1997 by and among Walbro Corporation (the "Company"), the Banks
signatories thereto and Comerica Bank, as Agent (as amended or otherwise
modified from time to time, the "Purchase Money Loan Agreement").
Capitalized terms used herein but not otherwise defined are used herein
as in Purchase Money Loan Agreement
Ladies and Gentlemen:
Pursuant to Section 2.3 of the Purchase Money Loan Agreement, the Majority
Banks hereby notify you that they are exercising their Call Option in connection
with the Purchase Money Indebtedness specified below:
----------------------------------------------------------------------------------------
Date and initial Amount of Amount of such Loan Amount of such Loan being
Purchase Money Loan outstanding on the date of called by this Call Notice
Call Notice
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
The Purchase Money Indebtedness specified above shall become due and
payable within thirty (30) days following your receipt of this Call Notice. The
Majority Banks shall, unless they otherwise elect, apply sums received from you
in connection with this Call Notice as follows:
--------------------------------------------------------------------------------
Purchase Money Loan Amount to be repaid
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
62
This Call Option Notice shall be subject to the terms and conditions of the
Purchase Money Loan Agreement.
Very truly yours,
COMERICA BANK, as Agent
By:____________________________________
Its:___________________________________
