1
EXHIBIT 10x
-------------------------------------------------------------------------------
BRIDGE CREDIT AGREEMENT
dated as of January 3, 1997
Among
MSX INTERNATIONAL, INC.,
CITICORP VENTURE CAPITAL, LTD.
and
MASCOTECH, INC.,
as Bridge Lenders
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.01 Defined Terms . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 Terms Generally . . . . . . . . . . . . . . . . . 17
ARTICLE II
The Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.01 Commitments . . . . . . . . . . . . . . . . . . . 17
SECTION 2.02 Loans . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.03 Borrowing Procedure . . . . . . . . . . . . . . . 18
SECTION 2.04 Evidence of Debt, Repayment of Loans . . . . . . 19
SECTION 2.05 Fees . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.06 Interest on Loans . . . . . . . . . . . . . . . . 20
SECTION 2.07 Default Interest . . . . . . . . . . . . . . . . 20
SECTION 2.08 Termination and Reduction of Commitments . . . . 20
SECTION 2.09 Repayment of Term Borrowings . . . . . . . . . . 21
SECTION 2.10 Optional Prepayment . . . . . . . . . . . . . . . 21
SECTION 2.11 Mandatory Prepayments . . . . . . . . . . . . . . 22
SECTION 2.12 Pro Rata Treatment . . . . . . . . . . . . . . . 23
SECTION 2.13 Sharing of Setoffs . . . . . . . . . . . . . . . 23
SECTION 2.14 Payments . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.15 Additional Credit Exposure . . . . . . . . . . . 24
ARTICLE III
Representations and Warranties . . . . . . . . . . . . . . . . . . 26
SECTION 3.01 Organization; Powers . . . . . . . . . . . . . . 26
SECTION 3.02 Authorization . . . . . . . . . . . . . . . . . . 26
SECTION 3.03 Enforceability . . . . . . . . . . . . . . . . . 26
SECTION 3.04 Governmental Approvals . . . . . . . . . . . . . 27
SECTION 3.05 No Material Adverse Change . . . . . . . . . . . 27
SECTION 3.06 Title to Properties; Possession Under Leases . . 27
SECTION 3.07 Subsidiaries . . . . . . . . . . . . . . . . . . 27
SECTION 3.08 Litigation; Compliance with Laws . . . . . . . . 28
SECTION 3.09 Use of Proceeds . . . . . . . . . . . . . . . . . 28
SECTION 3.10 Tax Returns . . . . . . . . . . . . . . . . . . . 28
i
3
SECTION 3.11 No Material Misstatements . . . . . . . . . . . . 28
SECTION 3.12 Employee Benefit Plans . . . . . . . . . . . . . 29
SECTION 3.13 Environmental Matters . . . . . . . . . . . . . . 29
SECTION 3.14 Insurance . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.15 Security Documents . . . . . . . . . . . . . . . 30
SECTION 3.16 Location of Real Property and Leased Premises . . 30
SECTION 3.17 Labor Matters . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
Conditions of Lending . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.01 All Credit Events . . . . . . . . . . . . . . . . 31
SECTION 4.02 First Credit Event . . . . . . . . . . . . . . . 32
ARTICLE V
Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.01 Existence; Business and Properties;
Compliance with Laws . . . . . . . . . . . . . . 34
SECTION 5.02 Insurance . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.03 Obligations and Taxes . . . . . . . . . . . . . . 35
SECTION 5.04 Financial Statements, Reports, etc . . . . . . . 35
SECTION 5.05 Litigation and Other Notices . . . . . . . . . . 36
SECTION 5.06 Employee Benefits . . . . . . . . . . . . . . . . 37
SECTION 5.07 Maintaining Records; Access to Properties and
Inspections . . . . . . . . . . . . . . . . . . . 37
SECTION 5.08 Use of Proceeds . . . . . . . . . . . . . . . . . 37
SECTION 5.09 Compliance with Environmental Laws . . . . . . . 37
SECTION 5.10 Further Assurances . . . . . . . . . . . . . . . 38
ARTICLE VI
Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.01 Indebtedness . . . . . . . . . . . . . . . . . . 38
SECTION 6.02 Liens . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.03 Intentionally Omitted. . . . . . . . . . . . . . 42
SECTION 6.04 Investments, Loans and Advances . . . . . . . . . 42
SECTION 6.05 Mergers, Consolidations and Sales of Assets . . . 43
SECTION 6.06 Dividends and Distributions; Restrictions
on Ability of Subsidiaries to Pay Dividends . . . 44
SECTION 6.07 Transactions with Affiliates . . . . . . . . . . 46
SECTION 6.08 Other Indebtedness and Agreements . . . . . . . . 46
SECTION 6.09 Minimum EBITDA . . . . . . . . . . . . . . . . . 47
SECTION 6.10 Fixed Charge Coverage Ratio . . . . . . . . . . . 47
SECTION 6.11 Net Worth . . . . . . . . . . . . . . . . . . . . 47
ii
4
SECTION 6.12 Capital Expenditures . . . . . . . . . . . . . . 48
SECTION 6.13 Business of the Borrower and Subsidiaries . . . . 48
ARTICLE VII
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VIII
The Administrative Agent and the Collateral Agent. . . . . . . . . 51
ARTICLE IXMiscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.01 Notices . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.02 Survival of Agreement . . . . . . . . . . . . . . 54
SECTION 9.03 Binding Effect . . . . . . . . . . . . . . . . . 54
SECTION 9.04 Successors and Assigns . . . . . . . . . . . . . 54
SECTION 9.05 Expenses; Indemnity . . . . . . . . . . . . . . . 55
SECTION 9.06 Applicable Law . . . . . . . . . . . . . . . . . 56
SECTION 9.07 Waivers; Amendment . . . . . . . . . . . . . . . 56
SECTION 9.08 Interest Rate Limitation . . . . . . . . . . . . 57
SECTION 9.09 Entire Agreement . . . . . . . . . . . . . . . . 57
SECTION 9.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 57
SECTION 9.11 Severability . . . . . . . . . . . . . . . . . . 57
SECTION 9.12 Counterparts . . . . . . . . . . . . . . . . . . 58
SECTION 9.13 Headings . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.14 Consent to Service of Process . . . . . . . . . . 58
SECTION 9.15 Confidentiality . . . . . . . . . . . . . . . . . 58
SCHEDULES AND EXHIBITS
SCHEDULE I Subsidiary Guarantors
SCHEDULE II U.K. Credit Facilities
SCHEDULE 2.01 Commitments
SCHEDULE 2.15 Designated Guarantee Obligations and Letters of Credit
SCHEDULE 3.06 Exceptions to Performance
SCHEDULE 3.07 Ownership of Subsidiaries
SCHEDULE 3.08 Litigation
SCHEDULE 3.13 Environmental Matters
SCHEDULE 3.16 Real Property
SCHEDULE 3.17 Employment Matters
SCHEDULE 6.01 Indebtedness
iii
5
SCHEDULE 6.02 Liens
EXHIBIT A Form of Borrowing Request
EXHIBIT B Pledge Agreement
EXHIBIT C Security Agreement
EXHIBIT D Subsidiary Guarantee Agreement
EXHIBIT E Senior Subordinated Note
EXHIBIT F Form of Assignment and Acceptance
EXHIBIT G Administrative Questionnaire
iv
6
BRIDGE CREDIT AGREEMENT dated as of January 3, 1997, among MSX
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"); CITICORP VENTURE
CAPITAL, LTD., a New York corporation ("CVC") MASCOTECH, INC., a Delaware
corporation ("MascoTech"; and, collectively with CVC and their respective
permitted assignees, the "Bridge Lenders"); and a Bridge Lender or a bank or
other financial institution, in each case designated by the Bridge Lenders and
made a party hereto (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent") for the Bridge
Lenders.
Pursuant to the Acquisition Agreement dated as of November 12, 1996,
as amended (the "Acquisition Agreement"), among the Borrower, MascoTech and MSX
International, Inc., a Michigan corporation ("MSX"), the Borrower will acquire
from MascoTech and MSX, as applicable, directly and through certain
Subsidiaries, the Business (other than certain excluded assets), the APX
Continuing Business, the Limited Stock and the APX- Brazil Stock (as such terms
are defined in the Acquisition Agreement) (collectively, the "Acquisition"), all
for aggregate consideration of approximately $144,628,000, and also consisting
of the assumption by the Borrower and certain Subsidiaries of certain assumed
liabilities related to the Business and the APX Continuing Business.
In connection with the Acquisition, CVC and MascoTech, together with
members of management, will make a cash capital contribution to the Borrower in
an aggregate amount of approximately $40 million (the "Equity Contribution").
The Borrower has requested the Bridge Lenders to extend credit in the
form of (a) bridge term loans on the Closing Date, in an aggregate principal
amount of $40,000,000, and (b) bridge revolving loans at any time and from time
to time prior to the Final Maturity Date, in an aggregate principal amount at
any time outstanding not in excess of $60,000,000. The Borrower has requested
MascoTech to arrange for or guarantee the issuance of letters of credit and
other credit facilities to support payment obligations incurred in the ordinary
course of business by the Borrower and the Subsidiaries.
The proceeds of the Term Loans are to be used, together with a portion
of the proceeds of Revolving Loans to be made on the Closing Date, solely (a) to
pay the cash consideration to be paid in connection with the Acquisition and (b)
to pay related fees and expenses. The proceeds of the Revolving Loans (other
than the Revolving Loans used for the purposes specified in the immediately
preceding sentence) are to be used for working capital and other general
corporate purposes of the Borrower and the Subsidiaries.
The Bridge Lenders are willing to extend such credit to the Borrower
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
7
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"Additional Credit Disbursement" shall mean a payment or disbursement
made by any Bridge Lender in connection with a Designated Letter of Credit or
Designated Guarantee Obligation.
"Additional Credit Event" shall mean the incurrence by MascoTech of
any Guarantee obligation or Indebtedness in respect of (a) any Designated Letter
of Credit or (b) any Designated Guarantee Obligation.
"Additional Credit Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Designated Letters of Credit at such
time plus (b) the aggregate amount of all Additional Credit Disbursements that
have not yet been reimbursed at such time plus (c) the aggregate outstanding
commitment amount of the U.K. Credit Facility (without duplication of Additional
Credit Disbursements related thereto). The Additional Credit Exposure of any
Bridge Lender at any time shall mean its Pro Rata Percentage of the aggregate
Additional Credit Exposure at such time; provided that (i) the face amount of
Additional Credit Exposure in respect of Designated Letters of Credit shall not
exceed at any time $15,000,000 and (ii) the principal amount of Additional
Credit Exposure in respect of Designated Guarantee Obligations shall not exceed
at any time Pounds 5,000,000.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Bridge Lenders' Revolving Credit Exposures.
"Amount of Eligible Receivables" shall mean and include at any time,
without duplication, the amount of Eligible Receivables set forth on the most
recent financial statements of the Borrower and the Subsidiaries delivered to
the Bridge Lenders pursuant to Section 5.04(e).
"Asset Sale" shall mean the sale, transfer or other disposition (by
way of merger or otherwise) by any Loan Party or any of the Subsidiaries to any
person other than any Loan Party of (a) any Capital Stock of any of the
Subsidiaries or (b) any other assets of any Loan Party or any of the
Subsidiaries, provided that none of (i) any asset sale or series of related
asset sales described in clause (b) above for consideration, at fair market
value, of less than $250,000, (ii) any Equity Issuance (without giving effect to
the exceptions set forth in such defined term) or (iii) any sale,
2
8
transfer or other disposition of assets pursuant to Section 6.05(a), (b), (c),
(d) or (e) shall be deemed an "Asset Sale", for purposes of this Agreement.
"Assignment and Acceptance" shall have the meaning assigned to it in
Section 9.04(b) hereof.
"Associate" shall mean, with respect to any person, (i) any trust or
other estate in which such person has a substantial beneficial interest or as to
which such person serves as trustee or in a similar fiduciary capacity and (ii)
any relative or spouse of such person, or any relative of such spouse, who has
the same home as such person.
"Availability" shall mean at any time (i) the lesser at such time of
(x) the Revolving Credit Commitment and (y) the Borrowing Base, minus (ii) the
sum at such time of (u) the unpaid principal balance of the Revolving Loans, (v)
the Additional Credit Exposure and (w) the unpaid principal balance of any NBD
Revolving Loans.
"Borrowing" shall mean a group of Loans made by the Bridge Lenders on
a single date.
"Borrowing Base" shall have the meaning assigned to such term in
Section 2.01(b) hereof.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit A.
"Bridge Lenders" shall have the meaning assigned to such term in the
Recitals.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close.
"Capital Expenditures" shall mean, for any period, without
duplication, the aggregate of all expenditures (whether paid in cash or other
consideration) by the Borrower and its consolidated Subsidiaries during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the consolidated
statement of cash flows of the Borrower and the Subsidiaries for such period.
"Capital Lease Obligations" of any person shall mean an obligation of
such person that is required to be classified and accounted for as a capital
lease for financial reporting purposes in accordance with GAAP, and the amount
of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" shall mean, with respect to any person, any and all
shares, interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however
3
9
designated) equity of such person, including any preferred stock, any limited
or general partnership interest and any limited liability company membership
interest, but excluding any debt securities convertible into such equity.
"Cash Interest Expense" shall mean, for any period, the Interest
Expense of the Borrower and the Subsidiaries for such period less all non- cash
items constituting Interest Expense during such period, all calculated on a
consolidated basis in accordance with GAAP.
"Charges" shall have the meaning given to it in Section 9.08.
"Closing Date" shall mean the date of the first Credit Event.
"Closing Date Net Worth" shall mean Consolidated Net Worth as of the
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document.
"Commitment" shall mean, with respect to any Bridge Lender, such
Bridge Lender's Revolving Credit Commitment and/or Term Loan Commitment.
"Consolidated EBITDA" shall mean, for any period, the Consolidated Net
Income for such period, plus, without duplication, to the extent deducted in
computing Consolidated Net Income, the sum of (a) income tax expense, (b)
Interest Expense, (c) depreciation and amortization expense and (d) any
extraordinary losses, minus, without duplication, to the extent added in
computing such Consolidated Net Income, (i) any interest income and (ii) any
extraordinary gains, all as determined on a consolidated basis with respect to
the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, subject to all applicable purchase
accounting adjustments.
"Consolidated Net Worth" shall mean, as at any date of determination,
the consolidated stockholders' equity of the Borrower and the Subsidiaries, as
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
4
10
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CVC" shall have the meaning assigned to such term in the Recitals.
"Debentures" shall mean any junior subordinated debentures issued or
issuable by the Borrower in exchange for shares of Series A Preferred Stock of
the Borrower on the terms and subject to the conditions set forth in the
Certificate of Incorporation of the Borrower or in payment of interest on such
debentures.
"Default" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"Designated Guarantee Obligations" shall mean the Guarantee
obligations, not to exceed L.5,000,000 in principal amount, of MascoTech (in
which the other Bridge Lenders shall have a participation hereunder) in respect
of the U.K. Credit Facilities.
"Designated Letter of Credit" shall mean standby and trade letters of
credit described on Schedule 2.15 hereto and additional standby and trade
letters of credit issued after the Closing Date of a nature substantially
similar to those described on Schedule 2.15 the reimbursement obligations of
which are Guaranteed by MascoTech (and in which the other Bridge Lenders shall
have a participation hereunder).
"Disqualified Stock" shall mean, with respect to any person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (i) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to 366 days after
the Final Maturity Date.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean any Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Eligible Receivables" shall mean Receivables created by the Borrower
and the Subsidiaries in the ordinary course of business arising out of the sale
of goods or rendition of services by the Borrower and the Subsidiaries, which
are and at all times shall continue to be acceptable to each of the Bridge
Lenders in all respects. Standards of eligibility may be fixed and revised form
time to time solely by the Bridge Lenders.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
5
11
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, property damage, natural
resource damages, nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or restrictions,
resulting from or based upon (a) the existence, or the continuation of the
existence, of a Release (including sudden or non-sudden, accidental or
non-accidental Releases), (b) exposure to any Hazardous Material, (c) the
presence, use, handling, transportation, storage, treatment or disposal of any
Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Section Section 9601 et seq.
(collectively "CERCLA"), the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. Section Section 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
Section Section 1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C.
Section Section 7401 et seq., the Toxic Substances Control Act of 1976, 15
U.S.C. Section Section 2601 et seq., the Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. Section Section 651 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Section Section 11001 et
seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. Section Section
300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section
Section 5101 et seq., and any similar or implementing state or local law, and
all amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance or filing required by or from any Governmental
Authority pursuant to any Environmental Law.
"Equity Contribution" shall have the meaning assigned to such term in
the Recitals.
"Equity Issuance" shall mean any issuance or sale by the Borrower of
any shares of Capital Stock of the Borrower, except for (a) any issuance or sale
to the Borrower or any Subsidiary, (b) sales or issuances of Capital Stock to
management, directors or key employees of the Borrower or any Subsidiary under
any stock option, stock purchase, stock grant or other similar incentive or
employee benefit plan in existence from time to time or (c) issuances of Capital
Stock by the Borrower upon the conversion, exercise or exchange of any class or
series of the Borrower's Capital Stock pursuant to the terms thereof as set
forth in the Certificate of Incorporation of the Borrower as the same may be in
effect at such time.
6
12
"ERISA" shall mean the Employee Retirement Income Security Act of 1974
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with any Loan Party, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of any Loan Party or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by any Loan Party or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by any Loan Party or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (h) the occurrence of a "prohibited
transaction" with respect to which any Loan Party or any of its Subsidiaries is
a "disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which any Loan Party or any such Subsidiary could otherwise be
liable; and (i) any other event or condition with respect to a Plan or
Multiemployer Plan or any plan subject to Title IV of ERISA maintained, or
contributed to, by any ERISA Affiliate that could reasonably be expected to
result in liability of any Loan Party.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, Consolidated
EBITDA of the Borrower and the Subsidiaries on a consolidated basis for such
fiscal year, minus, without duplication, (a) Cash Interest Expense paid during
such fiscal year, (b) scheduled principal repayments of Indebtedness made by the
Borrower and the Subsidiaries on a consolidated basis during such year, (c)
voluntary prepayments of Term Loans during such fiscal year, (d) permitted
Capital Expenditures by the Borrower and the Subsidiaries on a consolidated
basis during such fiscal year that are paid in cash and (e) cash tax liability
of the Borrower and the Subsidiaries on a consolidated basis during such fiscal
year.
"Fees" shall mean the Administrative Agent Fees.
"Final Maturity Date" shall mean December 31, 2002.
7
13
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such
corporation.
"Fixed Charge Coverage Ratio" at the end of any period shall mean the
ratio of (i) Consolidated EBITDA divided by (ii) the sum of, without
duplication, (a) Cash Interest Expense plus (b) scheduled payments of principal
with respect to all Indebtedness (including scheduled payment of Capital Lease
Obligations) plus (c) Capital Expenditures, in each case for the Borrower and
the Subsidiaries calculated on a consolidated basis in accordance with GAAP for
such period.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on
a consistent basis for all periods after the date hereof. All accounting terms
shall be interpreted and all accounting determinations hereunder shall be made
in accordance with Section 1.02.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The amount of any Guarantee of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee, unless
such primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the amount of
such Guarantee shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
8
14
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed; provided, however, that the amount of Indebtedness of such person
shall be the lesser of (i) the fair market value of such asset at such date of
determination and (ii) the amount of such Indebtedness, (f) all Guarantees by
such person of Indebtedness of others, (g) all Capital Lease Obligations of such
person, (h) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements and (i) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such person in respect thereof.
"Indemnitee" shall have the meaning given such term in Section
9.05(b).
"Information" shall have the meaning given to it in Section 9.15.
"Interest Expense" shall mean, for any period, the interest expense of
the Borrower during such period determined on a consolidated basis in accordance
with GAAP.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of each June and December and at maturity.
"Joint Venture" shall mean any person of which securities or other
ownership interests representing at least 20% but no greater than 50% of the
equity or ordinary voting power are owned, controlled or held by the Borrower or
any of its Subsidiaries.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest (or agreement
to give a security interest) in or on such asset and (b) the interest of a
vendor or a lessor under any conditional sale agreement, lease or title
retention agreement relating to such asset.
"Loan Documents" shall mean this Agreement, the Senior Subordinated
Note, the Subsidiary Guarantee Agreement and the Security Documents.
"Loan Parties" shall mean the Borrower and the Subsidiary Guarantors.
9
15
"Loan Rate" shall mean, for any day, a rate per annum equal to (a)
10.0% through June 30, 1997, (b) thereafter, 11.0% through September 30, 1997,
(c) thereafter, 12.0% through December 31, 1997 and (d) thereafter, 13.0%.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Management Investors" shall mean any officers, directors or employees
of the Borrower or its Subsidiaries who acquire Capital Stock of the Borrower on
or after the Closing Date and any of their direct or indirect Permitted
Transferees.
"MascoTech" shall have the meaning assigned to such term in the
Recitals.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, properties or financial condition of the
Borrower and its consolidated Subsidiaries, taken as a whole, or (b) material
impairment of the rights of or remedies available to the Bridge Lenders under
any Loan Document.
"Maximum Rate" shall have the meaning given to it in Section 9.08.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any Loan Party is obligated to contribute.
"NBD Revolving Loans" means the revolving or line of credit loans
owing by the Borrower under the $60,000,000 revolving line of credit entered
into by the Borrower on the Closing Date with NBD Bank, and any such loans made
pursuant to any renewal, refinancing or replacement of such facility.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds thereof (including deferred cash payments as and when received
(collectively, "Deferred Cash")) net of (i) costs of sale (including payment of
the outstanding principal amount of, premium or penalty, if any, interest and
other amounts on any Indebtedness (other than Loans) required to be repaid under
the terms thereof or by applicable law as a result of such Asset Sale), (ii)
taxes paid or payable in the year such Asset Sale occurs or in the following
year as a result thereof, (iii) amounts (A) provided as a reserve, in accordance
with GAAP, against any liabilities under any indemnification obligations
associated with such Asset Sale or (B) held in escrow pursuant to an agreement
relating to such Asset Sale (provided that, to the extent and at the time any
such amounts are released from such reserve or escrow, such amounts shall
constitute Net Cash Proceeds (net of any taxes paid or payable)) and (iv)
payments to holders of minority interests in the asset subject to such Asset
Sale or in the entity selling the asset and (b) with respect to any Equity
Issuance or any issuance or other disposition of Indebtedness for borrowed
money, the cash proceeds thereof (including Deferred Cash) net of underwriting
discounts and commissions or placement fees,
10
16
attorneys' fees, accountants' fees, filing and registration fees, trustee fees
and other fees and expenses directly incurred in connection therewith net of
any taxes paid or payable as a result thereof.
"90%-Owned Foreign Subsidiary" shall mean a Foreign Subsidiary of
which securities (except for directors' qualifying shares) or other ownership
interests representing at least 90% of the equity or at least 90% of the
ordinary voting power are, at the time any determination is being made, owned,
controlled or held by the Borrower or any wholly owned subsidiary.
"Obligations" shall mean (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) fees, costs,
expenses and indemnities, (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Secured Parties under this Agreement and the other Loan
Documents, and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
this Agreement or the other Loan Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex I to the Security Agreement.
"Permitted Foreign Indebtedness" shall mean, without duplication,
Indebtedness under U.K. Credit Facility in an aggregate principal amount not to
exceed L.5,000,000 and unsecured Indebtedness of MascoTech Engineering Gmblt in
an aggregate principal amount not to exceed DM1,500,000.
"Permitted Foreign Investments" shall mean (a) any investments in, or
loans or advances to, any Foreign Subsidiary by the Borrower or any Domestic
Subsidiary or (b) any letters of credit or Guarantees to support Permitted
Foreign Indebtedness issued by or for the account of the Borrower or any
Domestic Subsidiary. For purposes of determining the amount of any Permitted
Foreign Investment outstanding at any time, (i) the amount of any investment,
loan or advance made pursuant to clause (a) above shall equal the aggregate
amount of the consideration (whether in cash or property, valued at the time
each such investment, loan or advance is made) paid for such investment, loan or
advance (net of any return of capital or principal of (but not dividends or
interest
11
17
on) such investment, loan or advance) and (ii) the amount of any Permitted
Foreign Investment pursuant to clause (b) above shall be the face amount of any
such letter of credit or Guarantee.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in (i) certificates of deposit, banker's acceptances
and time deposits maturity within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof that has a combined
capital and surplus profits of not less than $250,000,000 or (ii) Eurocurrency
time deposits maturing within 360 days from the date of acquisition thereof with
any branch or office of (A) any commercial bank organized under the laws of a
country that is a member of the Organization for Economic Cooperation and
Development, and comparable in credit quality to the investments permitted under
the preceding clause (i), or (B) any Bridge Lender;
(d) repurchase obligations with a term of not more than 30 days for,
and secured by, underlying securities of the types described in clause (a) above
entered into with a bank meeting the qualifications described in clause (c)
above;
(e) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P or "A-1"
by Moody's;
(f) investments in money market funds complying with the risk limiting
conditions of Rule 2a-7 (or any successor rule) of the Securities and Exchange
Commission under the Investment Company Act of 1940, as amended;
(g) in the case of any Foreign Subsidiary, investments comparable in
credit quality and tenor to those referred to above and customarily used by
corporations for cash management purposes in any jurisdiction outside the United
States of America; and
(h) other investment instruments approved in writing by the Required
Bridge Lenders.
12
18
"Permitted Transferee" shall have the meaning assigned to such term in
the Stockholders' Agreement.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which any Loan Party
is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit B, among the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Prime Rate" shall mean for any applicable day, the rate of interest
from time to time announced by Chemical Bank at its principal office located in
New York, New York as its prime commercial lending rate as publicly announced
from time to time. Each change in any interest rate provided for herein based
upon the Prime Rate resulting from a change in the Prime Rate shall take effect
at the time of such change in the Prime Rate.
"Properties" shall have the meaning given such term in Section 3.13.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Bridge Lender's Revolving Credit Commitment.
"Receivables" shall mean and include all of the Borrower's and the
Subsidiaries' accounts, instruments, documents, chattel paper and general
intangibles, whether secured or unsecured, whether now existing or hereafter
created or arising, and whether or not specifically assigned to the Collateral
Agent for the ratable benefit of the Bridge Lenders.
"Refinancing Indebtedness" shall have the meaning given such term is
Section 6.01(1).
"Register" shall have the meaning given such term in Section 9.04(c).
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental
13
19
Authority or voluntarily undertaken to: (i) cleanup, remove, treat, ▇▇▇▇▇ or in
any other way address any Hazardous Material in the environment; (ii) prevent
the Release or threat of Release, or minimize the further Release of any
Hazardous Material so it does not migrate or endanger or threaten to endanger
public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Bridge Lenders" shall mean, at any time, each of the Bridge
Lenders.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Bridge
Lender, the commitment of such Bridge Lender to make Revolving Loans hereunder
and Guarantee and Indebtedness obligations (including through participations
under this Agreement) in respect of (a) Designated Letters of Credit and (b)
Designated Guarantee Obligations in an aggregate amount at any time outstanding
not in excess of the amount opposite the name of such Bridge Lender in the
column entitled "Revolving Credit Commitment" in the table appearing in Schedule
2.01, or the amount in the Assignment and Acceptance pursuant to which such
Bridge Lender assumed its Revolving Credit Commitment, as applicable, as such
amount may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Bridge Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Revolving
Credit Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Loans made by such Bridge Lender, plus the aggregate
amount at such time of such Bridge Lender's Additional Credit Exposure.
"Revolving Credit Lender" shall mean a Bridge Lender with a Revolving
Credit Commitment.
"Revolving Credit Note" means a note issued by the Borrower in
connection with a Revolving Loan.
"Revolving Loans" shall mean the loans made or deemed made by the
Bridge Lenders to the Borrower pursuant to clause (b) of Section 2.01.
"S&P" shall mean Standard and Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., and its successors.
14
20
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit C, among the Borrower and the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 5.10.
"Senior Subordinated Note" shall mean the Senior Subordinated Note due
2006 issued to MascoTech by the Borrower on the Closing Date in an aggregate
principal amount of not less than $30,000,000 and shall include any
substantially identical notes issued in the exchange therefor after the Closing
Date, pursuant to the agreement governing such notes.
"Stockholders' Agreement" shall mean the Stockholders' Agreement dated
as of the date hereof, among the Borrower, MascoTech, the Institutional Investor
and the Management Investors, as the same may be amended, supplemented or
otherwise renewed or replaced from time to time in accordance with the terms
thereof and hereof.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent, provided that the term "subsidiary," when used in respect of the
Borrower or any of its subsidiaries, shall not include any foreign joint venture
in which the Borrower or any such subsidiary owns less than or equal to 50% of
the equity interest in such joint venture.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary party to the
Subsidiary Guarantee Agreement.
"Term Loan Borrowing" shall mean a Borrowing comprised of Term Loans.
15
21
"Term Loan Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitment" shall mean, with respect to each Bridge Lender,
the commitment of such Bridge Lender to make Term Loans hereunder in an
aggregate amount at any time outstanding not in excess of the amount opposite
the name of such Bridge Lender in the column entitled "Term Loan Commitment" in
the table appearing in Schedule 2.01 or the amount in the Assignment and
Acceptance pursuant to which such Bridge Lender assumed its Term Loan
Commitment, as applicable.
"Term Loan Repayment Amount" shall have the meaning assigned to such
term in Section 2.09(a)(i).
"Term Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.09(a)(i).
"Term Note" means a note issued by the Borrower in connection with a
Term Loan.
"Term Loans" shall mean the loans made by the Bridge Lenders to the
Borrower pursuant to Section 2.01(a).
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Lenders' Revolving Credit Commitments,
as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"U.K. Credit Facility" shall mean the credit facilities described in
Schedule I hereto.
"Upstream Payment" shall have the meaning assigned to such term in
Section 6.06(b).
"wholly owned subsidiary" of any person shall mean a subsidiary of
such person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity or 100% of the
ordinary voting power or 100% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by such person
or one or more wholly owned subsidiaries of such person or by such person and
one or more wholly owned subsidiaries of such person. The term "wholly owned",
when used to modify the term "Subsidiary" or "Domestic Subsidiary", shall have a
correlative meaning.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
16
22
SECTION 1.02 Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time, (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI or Section 2.11(d), all accounting
terms herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with GAAP as in effect on the date of this Agreement
and applied on a basis consistent with the application used in the financial
statements referred to in Section 3.05(a) and (c) all references herein to the
Borrower on an unconsolidated basis shall be deemed to exclude any investment by
the Borrower in any of its subsidiaries.
ARTICLE II
The Credits
SECTION 2.01 Commitments. Subject to the terms and conditions relying
upon the representations and warranties herein set forth, each Bridge Lender
agrees, severally and not jointly, (a) to make a Term Loan to the Borrower on
the Closing Date in a principal amount not to exceed its Term Loan Commitment
and (b) to make Revolving Loans (which shall be deemed to include unpaid or
unreimbursed Additional Credit Disbursements) to the Borrower, at any time and
from time to time on or after the date hereof, and until the earlier of the
Final Maturity Date and the termination of the Revolving Credit Commitment of
such Bridge Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in (i) such Bridge
Lender's Revolving Credit Exposure exceeding (ii) such Bridge Lender's Revolving
Credit Commitment. Notwithstanding the foregoing, the aggregate principal
amount of Revolving Loans outstanding at any time to the Borrower shall not
exceed (1) the lesser of (A) the Total Revolving Credit Commitment (as such
amount may be reduced pursuant to Section 2.08 hereto) and (B) an amount equal
to up to eighty percent (80%) of the amount of Eligible Receivables, (this
clause (1) (B) referred to herein as the "Borrowing Base"), minus (2) the
Additional Credit Exposure at such time (excluding any unpaid or unreimbursed
Additional Credit Disbursements). Within the limits set forth in the two
immediately preceding sentences and subject to the terms, conditions and
limitations set forth herein, including, without limitation, the requirement
that no Revolving Loan shall be made hereunder if the amount thereof exceeds the
Availability outstanding at such time, the Borrower may borrow, pay or prepay
and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans
may not be reborrowed.
17
23
SECTION 2.02 Loans.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Bridge Lenders ratably in accordance with their respective Term Loan
Commitments or Revolving Credit Commitments, as applicable; provided, however,
that the failure of any Bridge Lender to make any Loan shall not in itself
relieve any other Bridge Lender of its obligation to lend hereunder (it being
understood, however, that no Bridge Lender shall be responsible for the failure
of any other Bridge Lender to make any Loan required to be made by such other
Bridge Lender). The Loans comprising any Borrowing shall be in an aggregate
principal amount that is (i) not less than $5,000,000 and, in each case, in an
integral multiple of $1,000,000 or (ii) equal to the remaining available balance
of the applicable Commitment.
(b) Each Bridge Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds to
such account in New York City as the Administrative Agent may designate not
later than 12:00 (noon), New York City time, and the Administrative Agent shall
by 1:00 p.m., New York City time, credit the amounts so received to an account
in the name of the Borrower, maintained with the Administrative Agent and
designated in the applicable Borrowing Request or, if a Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, return the amounts so received to the respective Bridge Lenders.
(c) If a Bridge Lender does not, prior to the date of any Borrowing,
make available to the Administrative Agent such Bridge Lender's portion of such
Borrowing, the Administrative Agent shall not be obligated to make available to
the Borrower on such date a corresponding amount.
SECTION 2.03 Borrowing Procedure. In order to request a Borrowing,
the Borrower shall notify the Administrative Agent by telephone of its intent to
request a Borrowing and shall hand deliver or telecopy to the Administrative
Agent a duly completed Borrowing Request not later than 11:00 a.m., New York
City time, five (5) Business Days before a proposed Borrowing. Each Borrowing
Request shall be irrevocable, shall be signed by or on behalf of the Borrower
and shall specify the following information: (i) whether the Borrowing then
being requested is to be a Term Borrowing or a Revolving Credit Borrowing; (ii)
the date of such Borrowing (which shall be a Business Day); (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(b)); and (iv) the
amount of such Borrowing; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. The Administrative Agent shall
promptly advise the applicable Bridge Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Bridge Lender's
portion of the requested Borrowing.
18
24
SECTION 2.04 Evidence of Debt, Repayment of Loans.
(a) The Borrower unconditionally promises to pay to the Administrative
Agent for the account of each Bridge Lender (i) the principal amount of each
Term Loan of such Bridge Lender as provided in Section 2.11 and (ii) the then
unpaid principal amount of each Revolving Loan on the Final Maturity Date.
(b) On the date of any termination or reduction of the Revolving
Credit Commitment pursuant to Section 2.08(b) hereof or elsewhere in this
Agreement, the Borrower shall pay or prepay so much of the Revolving Loans as
shall be necessary in order that the Availability equals or exceeds zero
following such termination or reduction.
(c) The Borrower shall make prepayments of the Revolving Credit Loans
from time to time such that the Availability equals or exceeds zero at all
times.
(d) Each Bridge Lender shall maintain an account or accounts
evidencing the Indebtedness of the Borrower to such Bridge Lender resulting from
each Loan made by such Bridge Lender from time to time, including the amounts of
principal and interest payable and paid such Bridge Lender from time to time
under this Agreement.
(e) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bridge Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from the Borrower or any
Subsidiary Guarantor and each Bridge Lender's share thereof. Notwithstanding
any other provision of this Agreement, it is understood and agreed that each
Loan made hereunder shall be deemed made for the account of the Borrower, and
the Administrative Agent and the Bridge Lenders shall not have any obligation to
maintain any accounts with respect to any Borrowing (or any portion thereof)
made by the Borrower.
(f) The entries made in the accounts maintained pursuant to paragraphs
(b) and (e) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Bridge Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with their terms.
(g) Notwithstanding any other provision of this Agreement, in the
event any Bridge Lender shall request and receive a promissory note payable to
such Bridge Lender and its permitted registered assigns, the interests
represented by such note shall at all times be represented by one or more
promissory notes payable to the payee named therein or its permitted registered
assigns.
19
25
SECTION 2.05 Fees. (a) The Borrower agrees to pay to the
Administrative Agent, for its own account, the administration fee, as agreed to
by such parties, at the times and in the amounts specified therein (the
"Administrative Agent Fees").
(b) The Borrower agrees to pay to each Bridge Lender on each Interest
Payment Date a fee calculated on such Bridge Lender's Pro Rata Percentage of the
average daily Additional Credit Exposure (excluding the portion thereof
attributable to unpaid or unreimbursed Additional Credit Disbursements) during
the preceding two quarters (or applicable shorter period) at a rate per annum
equal to 1.25%, computed on the basis of actual number of days elapsed in a
360-day year.
(c) All of the above fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent and Bridge Lenders, as
applicable. Once paid, none of such fees shall be refundable under any
circumstances.
SECTION 2.06 Interest on Loans.
(a) Subject to the provisions of Section 2.07, the Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to the Loan Rate in effect for such
Borrowing.
(b) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The Loan Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.07 Default Interest. If the Borrower shall default in the payment of
the principal of, or interest on, any Loan or any other amount becoming due
hereunder, by acceleration or otherwise, or under any other Loan Document, the
Borrower agrees to pay on demand from time to time interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) at the rate otherwise applicable to
such Loan pursuant to Section 2.06 plus 2.00% per annum.
SECTION 2.08 Termination and Reduction of Commitments.
(a) The Term Loan Commitments shall automatically terminate at 5:00
p.m., New York City time, on the Closing Date. The Revolving Credit Commitments
shall automatically terminate on the Final Maturity Date.
(b) Upon at least three Business Days' prior irrevocable notice to the
Administrative Agent given by telephone (promptly confirmed by written or
telecopy notice), the Borrower may at any time in whole permanently terminate,
or from time to time in part permanently reduce the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Revolving
Credit Commitments shall be in an integral multiple of $1,000,000 and in a
minimum
20
26
amount of $2,000,000 and (ii) the Total Revolving Credit Commitment shall not
be reduced to an amount that is less than the Aggregate Revolving Credit
Exposure at the time.
(c) Each reduction in the Total Revolving Credit Commitment hereunder
shall be made ratably among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitment.
SECTION 2.09 Repayment of Term Borrowings.
(a) The Borrower shall pay to the Administrative Agent, for the
account of the Bridge Lenders, on the dates set forth below, or if any such date
is not a Business Day, on the next succeeding Business Day (each such date being
a "Term Loan Repayment Date"), a principal amount of the Term Loans equal to the
amount set forth below for such date, as such amount may be adjusted from time
to time pursuant to Sections 2.09(b), 2.10 and 2.11 (such amount, as adjusted,
being called the "Term Loan Repayment Amount"), together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment:
Date Amount
December 31, 1997 $5,000,000
December 31, 1998 5,000,000
December 31, 1999 6,000,000
December 31, 2000 7,000,000
December 31, 2001 8,000,000
December 31, 2002 9,000,000
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Final Maturity Date, together with accrued and unpaid interest on
the principal amount to be paid to but excluding the date of payment.
(c) All repayments pursuant to this Section 2.09 shall be subject to
Section 2.12, but shall otherwise be without premium or penalty.
SECTION 2.10 Optional Prepayment.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, upon at least three Business
Days' prior notice to the Administrative Agent given by telephone (promptly
confirmed by written or telecopy notice) before 11:00 a.m., New York City time;
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $2,000,000.
21
27
(b) Optional prepayments of Term Loans shall be allocated pro
rata between the then outstanding Term Loans and applied in the inverse order of
the remaining scheduled installments of principal due in respect of the Term
Loans under Section 2.09(a).
(c) Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such Borrowings by
the amount stated therein on the date stated therein. All prepayments under
this Section 2.10 shall be subject to Section 2.12 but otherwise without premium
or penalty.
SECTION 2.11 Mandatory Prepayments.
(a) In the event of any termination of all the Revolving Credit
Commitments, the Borrower shall repay or prepay all its outstanding Revolving
Credit Borrowings on the date of such termination. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) at or prior to the
effective date of such reduction, the Administrative Agent shall notify the
Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit
Exposure after giving effect thereto and (ii) if the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment after giving effect
to such reduction or termination, then the Borrower shall, on the date of such
reduction or termination, repay or prepay Revolving Credit Borrowings in an
amount sufficient to eliminate such excess.
(b) Not later than the third Business Day following the receipt
of any Net Cash Proceeds from any Asset Sale, the Borrower shall apply 100% of
the Net Cash Proceeds received with respect thereto to prepay outstanding Term
Loans in accordance with Section 2.11(f).
(c) In the event and on each occasion that an Equity Issuance
occurs, the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the occurrence of such
Equity Issuance, apply 100% of the Net Cash Proceeds therefrom to prepay
outstanding Term Loans in accordance with Section 2.11(f).
(d) No later than the earlier of (i) 90 days after the end of
each fiscal year of the Borrower commencing with the fiscal year ending on
December 31, 1997, and (ii) the date on which the financial statements with
respect to such fiscal year are delivered pursuant to Section 5.04(a), the
Borrower shall prepay outstanding Term Loans in accordance with Section 2.11(f)
in an aggregate principal amount equal to 75% of the Excess Cash Flow for such
fiscal year.
(e) In the event that the Borrower or any Subsidiary shall
receive Net Cash Proceeds from the issuance of Indebtedness for money borrowed
of the Borrower or any Subsidiary (other than Indebtedness for money borrowed
permitted pursuant to Section 6.01), the Borrower shall, substantially
simultaneously with (and in any event not later than the third Business Day next
following) the receipt of such Net Cash Proceeds by such Loan Party or such
Subsidiary, apply an
22
28
amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans
in accordance with Section 2.11(f).
(f) Subject to paragraph (h) below, mandatory prepayments of
outstanding Term Loans under this Agreement shall be allocated pro rata between
the then outstanding Term Loans, and applied in the inverse order of the
remaining scheduled installments of principal due in respect of Term Loans under
Section 2.09(a).
(g) The Borrower shall deliver to the Administrative Agent, at
the time of each prepayment required under this Section 2.11, (i) a certificate
signed by a Financial Officer of the Borrower setting forth in reasonable detail
the calculation of the amount of such prepayment and (ii) to the extent
reasonably practicable, at least three days prior written notice of such
prepayment. Each notice of prepayment shall specify the prepayment date, the
principal amount of each Loan (or portion thereof) to be prepaid and the amount,
if any, to be deposited in the account or accounts designated by the Bridge
Lenders from time to time. All prepayments of Borrowings under this Section
2.11 shall be subject to Section 2.11(h) and Section 2.12, but shall otherwise
be without premium or penalty.
(h) Amounts to be applied pursuant to this Section 2.11 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding Term Loans. Any amounts remaining after each such
application shall, at the option of the Parent Borrower, be applied to repay
Revolving Loans immediately.
SECTION 2.12 Pro Rata Treatment. Each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans,
and each reduction of the Revolving Credit Commitments shall be allocated pro
rata among the Bridge Lenders, in the case of principal and interest payments,
in accordance with their respective applicable outstanding Loans and, in the
case of all other payments, the Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Loans). Each Bridge Lender agrees that in computing such
Bridge Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bridge Lender's
percentage of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.13 Sharing of Setoffs. Each Bridge Lender agrees that
if it shall, through the exercise of a right of lien, setoff or counterclaim
against the Borrower or any other Loan Party, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Bridge Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Loan or Loans or Additional Credit Disbursement as a result of
which the unpaid principal portion of its Term Loans and Revolving Loans and
participations held by such Bridge Lender in Additional Credit Disbursements
shall be proportionately less than the unpaid principal portion of the Term
Loans and Revolving
23
29
Loans and participations held by any other Bridge Lender, it shall be deemed
simultaneously to have purchased from such other Bridge Lender at face value,
and shall promptly pay to such other Bridge Lender the purchase price for, a
participation or interest in the Term Loans and Revolving Loans and
participations in Additional Credit Disbursements, as the case may be, of such
other Bridge Lender, so that the aggregate unpaid principal amount of the Term
Loans and Revolving Loans and participations in Additional Credit Disbursements
held by each Bridge Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Term Loans and Revolving Loans and
participations in Additional Credit Disbursements then outstanding as the
principal amount of its Term Loans and Revolving Loans and interests in
Additional Credit Disbursements prior to such exercise of lien, setoff or
counterclaim or other event was to the principal amount of all Term Loans and
Revolving Loans and interests in Additional Credit Disbursements outstanding
prior to such exercise of lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.13 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Bridge Lender holding a
participation or interest in a Term Loan or Revolving Loan or Additional Credit
Disbursement deemed to have been so purchased, to the fullest extent provided
by law, may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Bridge Lender by reason thereof as fully as if such Bridge Lender had made a
Loan directly to the Borrower in the amount of such participation.
SECTION 2.14 Payments.
(a) The Borrower shall make each payment (including principal of
or interest on any Borrowing or any Additional Credit Disbursement or any Fees
or other amounts) hereunder and under any other Loan Document not later than
12:00 (noon), New York City time, on the date when due in immediately available
dollars, without setoff or counterclaim. Each such payment shall be made to
each of the Bridge Lenders, pro rata, or to the Administrative Agent, if any, at
the offices or to the accounts indicated to the Borrower from time to time.
(b) Whenever any payment (including principal of or interest on
any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.15 Additional Credit Exposure.
(a) Facility. Masco Tech has prior to the Closing Date, issued
Guarantees and incurred Indebtedness in respect to (i) Designated Guarantee
Obligations and (ii) Designated Letters of Credit identified in Schedule 2.15
hereto, and subject to the terms and conditions and relying upon the
representations and warranties herein set forth, MascoTech may, in its sole
discretion, from time
24
30
to time issue Guarantees or incur Indebtedness in respect of (x) Designated
Guarantee Obligations and (y) Designated Letters of Credit at any time and from
time to time on and after the Closing Date and until the earlier of the Final
Maturity Date and the termination of the Revolving Credit Commitments in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in the Aggregate Revolving Credit Exposure,
after giving effect to any Additional Credit Exposure, exceeding the Total
Revolving Credit Commitment.
(b) Participations. MascoTech shall give prompt written notice
to the Administrative Agent and each other Revolving Credit Lender of the
occurrence of (a) any Additional Credit Event and (b) any Additional Credit
Disbursement. Such notice shall specify the aggregate principal or face amount
of the Additional Credit Event in which each such other Revolving Credit Lender
will participate. On the Closing Date, each other Revolving Credit Lender will
acquire a Pro Rata Percentage participation in all Additional Credit Exposures
identified on Schedule 2.15 hereto. Automatically and contemporaneously with
each Additional Credit Event occurring on or after the Closing Date, each such
other Revolving Credit Lender will acquire a Pro Rata Percentage participation
in all of the Additional Credit Exposure represented by each Additional Credit
Event. In furtherance of the foregoing, each such other Revolving Credit Lender
will hereby absolutely and unconditionally agree, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of
MascoTech, such other Revolving Credit Lender's Pro Rata Percentage of each
Additional Credit Disbursement. Each such other Revolving Credit Lender
acknowledges and agrees that its obligation to acquire a participation in each
Additional Credit Exposure pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each payment made in respect of each Additional Credit Disbursement
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each such other Revolving Credit Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.02(b) with respect to Loans made by
such other Revolving Credit Lender (and Section 2.02(b) shall apply, mutatis
mutandis, to the payment obligations of such other Revolving Credit Lender) and
the Administrative Agent shall promptly pay to MascoTech the amounts so received
by it from such other Revolving Credit Lender. Any amounts received by
MascoTech from the Borrower (or other party on behalf of the Borrower) in
respect of an Additional Credit Disbursement after receipt by MascoTech of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to such other Revolving
Credit Lenders that shall have made their payments pursuant to this paragraph
and to MascoTech, as their interests may appear. In furtherance of the
foregoing, each such other Revolving Credit Lender agrees that (i) the
Administrative Agent may (y) set off against the fees payable to such Revolving
Credit Lender under Section 2.05(b) such Revolving Credit Lender's Pro Rata
Percentage of the fees paid, and out-of-pocket costs incurred, by MascoTech
pursuant to its Guarantees in respect of Designated Letters of Credit, and (z)
pay such set off amount to MascoTech and (ii) it shall participate in and be
obligated to pay, in accordance with its Pro Rata Percentage, all such fees and
costs to the extent such Revolving Credit lender does not fully pay its Pro Rata
Percentage of such fees and costs pursuant to clause (i) above.
25
31
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Bridge Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where the nature
of its business so requires and (d) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated hereby to which it is or
will be a party and, in the case of the Borrower, to borrow hereunder, except in
each case where the failure to satisfy any of the above could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.02 Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents to which such Loan
Party is a party, and in the case of the Borrower, the borrowings hereunder and
the Acquisition and the other transactions contemplated hereby and by the
Acquisition Agreement (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action on
the part of such Loan Party and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
Subsidiary, (B) any order of any Governmental Authority or (C) any provision of
any indenture, agreement or other instrument to which the Borrower or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under any such indenture, agreement or other instrument, except
where any such conflict, violation, breach, default or right referred to in
clause (i) or (ii), individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by the Borrower or any Subsidiary (other than any Lien
created hereunder or under the Security Documents).
SECTION 3.03 Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party thereto will constitute,
a legal, valid and binding obligation of such Loan Party enforceable against
such Loan Party in accordance with its respective terms, subject (a) as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and
26
32
other similar laws affecting the enforcement of creditors' rights generally,
from time to time in effect and (b) to general principles of equity (whether
enforcement is sought by a proceeding in equity or at law) .
SECTION 3.04 Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions or the
other transactions contemplated hereby, except for (a) the filing of appropriate
Uniform Commercial Code financing statements and filings with the United States
Patent and Trademark Office and the United States Copyright Office, (b) such as
have been made or obtained and are in full force and effect, (c) filings by the
Borrower pursuant to the Small Business Investment Act of 1958, as amended, and
(d) such actions, consents, approvals and filings the failure of which to obtain
or make could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05 No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, properties,
financial condition, contingent liabilities or material agreements of MSX and/or
the Limited Companies, taken as a whole, since the December 31 Balance Sheet (as
such terms are defined in the Acquisition Agreement).
SECTION 3.06 Title to Properties; Possession Under Leases.
(a) Each of the Borrower and the Subsidiaries has good title to
(and with respect to real property good and marketable title to), or valid
leasehold interests in, all its material properties and assets (including all
properties listed on Schedule 3.16(b)), except where lack of such title or valid
leasehold interest does not materially interfere with its ability to conduct its
business as currently conducted. All interests of such persons in such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Except as set forth on Schedule 3.06(b), each of the Borrower
and the Subsidiaries has complied with all material obligations under all
material leases to which it is a party and all such leases are in full force and
effect. Each of the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases, except where failure to
enjoy such possession does not materially interfere with its ability to conduct
its business as currently conducted.
SECTION 3.07 Subsidiaries.
(a) Schedule 3.07 sets forth as of the Closing Date (after giving
effect to the Transactions) a list of all Subsidiaries and the percentage
ownership interest of the Borrower and any other person therein. The shares of
Capital Stock or other ownership interests so indicated on Schedule 3.07 are
fully paid and nonassessable and are owned, as of the Closing Date, by the
Borrower or a subsidiary of the Borrower, as applicable, directly or indirectly,
free and clear of all Liens (other than Liens permitted under the Loan
Documents). The Borrower owns directly or
27
33
indirectly 100% of the issued and outstanding shares of Capital Stock of each
Subsidiary Guarantor.
(b) As of the Closing Date, except as set forth in Schedule 3.07,
none of the Subsidiaries is subject to a consensual encumbrance or restriction
that limits such Subsidiary's ability to make an Upstream Payment.
SECTION 3.08 Litigation; Compliance with Laws.
(a) Except as set forth on Schedule 3.08, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of the Borrower, threatened against
or affecting the Borrower or any Subsidiary or any business, property or rights
of any such person (i) that involve any Loan Document or the Transactions or
(ii) as to which there is a reasonable likelihood of an adverse determination
and that could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits), or is
in default with respect to any judgment, writ, injunction, decree or order of
any Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.09 Use of Proceeds. The Borrower will use the proceeds
of the Loans only for the purposes specified in the preamble to this Agreement.
No part of the proceeds of the Loans will be used directly or indirectly for any
purpose which would violate or be inconsistent with Regulations G, T or X of the
Board of Governors of the Federal System of the United States of America.
SECTION 3.10 Tax Returns. Each of the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state or other
material tax returns required to have been filed by it and has paid or caused to
be paid all taxes due and payable by it and all assessments received by it to
the extent that such failure to file or nonpayment could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.11 No Material Misstatements. None of the information,
reports, financial statements, exhibits or schedules, taken as a whole,
furnished by or on behalf of the Borrower to the Administrative Agent or any
Bridge Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not materially
misleading, provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection,
28
34
the Borrower represents only that it acted in good faith and utilized
reasonable assumptions and due care in the preparation of such information,
report, financial statement, exhibit or schedule.
SECTION 3.12 Employee Benefit Plans. Except to the extent failure
to comply could not reasonably be expected to result in a Material Adverse
Effect, each of the Borrower and the Subsidiaries is in compliance with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. The Borrower is not aware of any circumstances or
event with respect to any employee benefit plan maintained or contributed to by
an ERISA Affiliate that could result in a liability that could reasonably be
expected to have a Material Adverse Effect. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.13 Environmental Matters. Except as set forth on
Schedule 3.13:
(a) The properties owned or operated by the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations that (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could reasonably be expected to
give rise to liability under, Environmental Laws, which violations, Remedial
Actions and liabilities, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last three years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not be reasonably expected to result in a Material Adverse Effect.
(c) There have been no Releases or threatened Releases at, from,
under or proximate to the Properties or otherwise in connection with the
operations of the Borrower or the Subsidiaries, which Releases or threatened
Releases, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.
(d) None of the Borrower or any of the Subsidiaries has received
any notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters the Borrower or the Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could reasonably be expected to result in a
Material Adverse Effect; and
(e) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of the Properties in a manner that could
reasonably be expected to give rise to liability under any Environmental Law,
nor have the Borrower or the Subsidiaries retained or assumed any liability,
29
35
contractually, by operation of law or otherwise, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, in each
case, which transportation, generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.14 Insurance. As of the date hereof and the Closing
Date, all insurance maintained by the Borrower and the Subsidiaries is in full
force and effect and all premiums that have become due and payable have been
duly paid. The Borrower and the Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.15 Security Documents.
(a) The Pledge Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Pledge
Agreement) and, when such Collateral is delivered to the Collateral Agent, the
Pledge Agreement shall constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Collateral, in each case prior and superior in right to any other
person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 3 to the Perfection Certificate (as defined in the
Security Agreement), the Security Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral (other than the Intellectual Property, as defined
in the Security Agreement) that may be perfected by filing, recording or
registering a financing statement under the Uniform Commercial Code as in effect
in the United States (or any political subdivision thereof) and its territories
and possessions, in each case prior and superior in right to any other Lien on
any Collateral other than Liens expressly permitted by Section 6.02.
SECTION 3.16 Location of Real Property and Leased Premises.
(a) As of the Closing Date, none of the Borrower or any Subsidiary
owns any real property.
(b) Schedule 3.16(b) lists completely and correctly in all
material respects as of the Closing Date the address of all real property leased
by the Borrower and the Subsidiaries.
SECTION 3.17 Labor Matters. As of the date hereof and the Closing
Date, there are no organizational efforts, representation campaigns, elections
or proceedings, demands for recognition or collective bargaining, strikes,
lock-outs, work stoppages or slowdowns presently
30
36
being made, undertaken or, to the knowledge of the Borrower or any Subsidiary,
threatened involving any employees of the Borrower or any Subsidiary. The
hours worked by and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters
in any case where a Material Adverse Effect could reasonably be expected to
occur as a result of such violations. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which the
Borrower or any Subsidiary is bound.
ARTICLE IV
Conditions of Lending
The obligations of the Bridge Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.01 All Credit Events. On the date of each Borrowing
(each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03).
(b) The representations and warranties set forth in Article III
hereof (other than these set forth in Sections 3.05 and 3.08 (a)) shall be true
and correct in all material respects on and as of the date of such Credit Event
with the same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on such earlier date).
(c) Each Loan Party shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to be
observed or performed, and at the time of and immediately after such Credit
Event, no Event of Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty
by the Borrower on the date of such Credit Event as to the matters specified in
paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
31
37
SECTION 4.02 First Credit Event. On the Closing Date:
(a) All legal matters incident to this Agreement, the Borrowings
and extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Bridge Lenders.
(b) The Bridge Lenders shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such Loan Party is a
party and, in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment thereto shown
on the certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection therewith on behalf
of such Loan Party; and (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above.
(c) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder or under any other Loan
Document.
(d) The Pledge Agreement shall have been duly executed by the
Loan Parties party thereto and delivered to the Bridge Lenders, and all the
outstanding Capital Stock of the Subsidiaries shall have been duly and validly
pledged thereunder to the Collateral Agent for the ratable benefit of the
Secured Parties and certificates representing such shares, accompanied by
instruments of transfer or stock powers endorsed in blank, shall be in the
actual possession of the Collateral Agent, provided that (i) neither the
Borrower nor any Domestic Subsidiary shall be required to pledge more than 65%
of the Capital Stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary
shall be required to pledge the Capital Stock of any of its Subsidiaries.
(e) The Security Agreement shall have been duly executed by the
Loan Parties party thereto and shall have been delivered to the Bridge Lenders
and each document (including each Uniform Commercial Code financing statement)
required by law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Collateral
32
38
Agent for the benefit of the Secured Parties a valid, legal and perfected
first-priority security interest in and lien on the Collateral described in
such agreement, subject to Liens permitted by Section 6.02, shall have been
delivered to the Collateral Agent.
(f) The Bridge Lenders shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings made with
respect to the Loan Parties in the states (or other jurisdictions) in which the
chief executive office of each such person is located, any offices of such
persons in which records have been kept relating to Accounts (as defined in the
Security Agreement) and the other jurisdictions in which Uniform Commercial Code
filings (or equivalent filings) are to be made pursuant to the preceding
paragraph, together with copies of the financing statements (or similar
documents) disclosed by such search, and accompanied by evidence satisfactory to
the Bridge Lenders that the Liens indicated in any such financing statement (or
similar document) would be permitted under Section 6.02 or have been released.
(g) The Bridge Lenders shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and duly
executed by a Responsible Officer of the Borrower.
(h) The Subsidiary Guarantee Agreement shall have been duly
executed by the Loan Parties party thereto and shall have been delivered to the
Bridge Lenders.
(i) The Collateral Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by Section
5.02 and the applicable provisions of the Security Documents, each of which
shall be endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement (in the case of each property or boiler
policy) and to name the Collateral Agent as additional insured, in form and
substance reasonably satisfactory to the Collateral Agent.
(j) The Acquisition shall have been consummated or shall be
consummated simultaneously with the first Credit Event in accordance with
applicable law, in accordance with the Acquisition Agreement.
(k) The Equity Contribution shall have been made prior to or
simultaneously with the first Credit Event.
(l) The Senior Subordinated Note and related documents shall be
duly executed and delivered by all parties in the form substantially as set
forth on Exhibit E attached hereto.
(m) All governmental consents and approvals and all material
third party consents shall have been obtained with respect to the Transactions
and the other transactions contemplated hereby to the extent required, all
applicable appeal periods shall have expired and there shall be no governmental
or judicial action, actual or threatened, that has or could have a reasonable
likelihood
33
39
ARTICLE V
Affirmative Covenants
of restraining, preventing or imposing burdensome conditions on the
Transactions or the other transactions contemplated hereby.
The Borrower covenants and agrees with each Bridge Lender that so long
as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in
full, unless the Required Bridge Lenders shall otherwise consent in writing, the
Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01 Existence; Business and Properties; Compliance with
Laws.
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names material to the conduct of its business; comply in all material respects
with all applicable laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted except where
noncompliance could not reasonably be expected to result in a Material Adverse
Effect; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition (reasonable wear and tear excepted) and from time to time make, or
cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted in all material
respects at all times.
SECTION 5.02 Insurance.
(a) Keep its insurable properties adequately insured at all times
by financially sound and reputable insurers; maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations, including
commercial general liability insurance against claims for bodily injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) In connection with the covenants set forth in this Section
5.02, it is understood and agreed that:
34
40
(i) none of the Collateral Agent or any Bridge Lender, or their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) the Borrower and the other
Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or
damage and (B) the Borrower shall use reasonable efforts to cause such
insurance policies to waive the insurer's rights of subrogation against
the Collateral Agent and the Bridge Lenders or their agents or employees.
If, however, any such insurance policy does not provide waiver of
subrogation rights against such parties, as required above, then the
Borrower hereby agrees, to the extent permitted by law, to waive its right
of recovery, if any, against the Collateral Agent and the Bridge Lenders
and their agents and employees in respect of any such loss or damage; and
(ii) the designation of any form, type or amount of insurance
coverage by the Collateral Agent under this Section 5.02 shall in no event
be deemed a representation, warranty or advice by the Collateral Agent that
such insurance is adequate for the purposes of the business of the Borrower
and the Subsidiaries or the protection of their properties.
SECTION 5.03 Obligations and Taxes. Pay its Indebtedness and
other monetary obligations promptly and in accordance with their terms and pay
and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or in respect of its
property, before such taxes, assessments and governmental charges shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to (i) any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien and (ii) any
Indebtedness or other obligation or any tax, assessment, charge, levy or claims,
the failure to pay and discharge when due which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.04 Financial Statements, Reports, etc. Furnish to each
Bridge Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income, stockholders'
equity and cash flows showing the consolidated financial condition of the
Borrower and its consolidated subsidiaries as of the close of such fiscal year
and the consolidated results of its operations and the operations of such
subsidiaries during such year (and showing, on a comparative basis, the figures
for the previous year), all audited by Coopers & ▇▇▇▇▇▇▇ or other independent
public accountants of recognized national standing acceptable to the Required
Bridge Lenders and accompanied by an opinion of such accountants (which shall
not be qualified in any material respect) to the effect that such consolidated
financial statements fairly
35
41
present in all material respects the financial condition and results of
operations of the Borrower and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its unaudited consolidated balance sheet
and related statements of income, stockholders' equity and cash flows showing
the consolidated financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal quarter and the consolidated results
of its operations and the operations of such subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year (and showing, on a
comparative basis, such information as of and for the corresponding dates and
periods of the preceding fiscal year), all certified by a Financial Officer of
the Borrower as fairly presenting in all material respects the consolidated
financial condition and results of operations of the Borrower and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP
(except for the absence of footnote disclosure) consistently applied, subject to
year-end audit adjustments;
(c) within 30 days after the end of each month (other than the
last month of any fiscal quarter), its unaudited consolidated balance sheet and
related statements of income, stockholders' equity and cash flows, showing the
consolidated financial condition of the Borrower and its consolidated
subsidiaries as of the close of such month and the consolidated results of its
operations and the operations of such subsidiaries during such month and the
then-elapsed portion of the fiscal year;
(d) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a certificate of the Financial Officer
certifying such statements and (i) certifying that no Event of Default or
Default has occurred or, if an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto, and (ii) setting forth computations
in reasonable detail satisfactory to the Bridge Lenders demonstrating compliance
(A) with the covenants contained in Sections 6.09, 6.10 and 6.11 and (B) with
the maximum limitation amounts contained in the several clauses in Sections
6.01, 6.04, 6.05 and 6.06; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, in each case as
any Bridge Lender may reasonably request.
SECTION 5.05 Litigation and Other Notices. Furnish to each
Bridge Lender written notice of the following promptly after (and, in any event,
no later than five days after) any Responsible Officer of the Borrower obtains
knowledge thereof:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto; and
36
42
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Subsidiary that could reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.06 Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code to the extent
failure to comply could reasonably be expected to result in a Material Adverse
Effect and (b) furnish to the Administrative Agent promptly, and in any event
within 10 days after any Responsible Officer of the Borrower knows or has reason
to know that, any ERISA Event has occurred that, alone or together with any
other ERISA Event could reasonably be expected to result in liability of the
Borrower or any Subsidiary in an aggregate amount exceeding $5,000,000, a
statement of a Financial Officer of the Borrower setting forth details as to
such ERISA Event and the action, if any, that the Borrower has taken or proposes
to take with respect thereto.
SECTION 5.07 Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made in
relation to its business and activities. Each Loan Party and each Subsidiary
(a) will permit any representatives designated by the Required Bridge Lenders to
visit and inspect the financial records and the properties of the Borrower or
any Subsidiary at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and (b) will permit any
representatives designated by the Required Bridge Lenders to discuss the
affairs, finances and condition of the Borrower or any Subsidiary with the
officers thereof and independent accountants therefor; provided, however, that
the number of visits pursuant to clause (a) above in any year shall not exceed
two, unless (i) a Default or Event of Default shall have occurred and be
continuing or (ii) the Collateral Agent, or any Bridge Lender, determines in
good faith that any material event or material change has occurred with respect
to the Borrower and the Subsidiaries and that as a result of such event or
change more frequent visits are necessary or prudent.
SECTION 5.08 Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
SECTION 5.09 Compliance with Environmental Laws. Comply, and
cause all lessees and other persons occupying its Properties to comply, in all
material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties and the operations conducted
thereon; obtain and renew all material Environmental Permits necessary for its
Properties; and conduct any Remedial Action in accordance with Environmental
Laws, except where noncompliance with Environmental Laws and Environmental
Permits or the failure to obtain or renew such Environmental Permits or conduct
such Remedial Action, in the aggregate, could not be reasonably expected to
result in a Material Adverse Effect.
37
43
SECTION 5.10 Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements) that may be required under applicable law, or that the Required
Bridge Lenders, the Administrative Agent or the Collateral Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and
first priority of the security interests created or intended to be created by
the Security Documents (subject to Liens permitted by Section 6.02). The
Borrower will cause any subsequently acquired or organized Domestic Subsidiary
to execute a Subsidiary Guarantee Agreement and each applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, the
Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its assets and properties as the Collateral
Agent or the Required Bridge Lenders shall designate (it being understood that
it is the intent of the parties that the Obligations shall be secured by, among
other things, substantially all the assets of the Borrower and the Domestic
Subsidiaries, including real and other properties acquired subsequent to the
Closing Date). Such security interests and Liens will be created under the
Security Documents and other security agreements, and other instruments and
documents in form and substance satisfactory to the Bridge Lenders, and the
Borrower shall deliver or cause to be delivered to the Bridge Lenders all such
instruments and documents (including legal opinions, title insurance policies,
lien searches and surveys) as the Bridge Lenders shall reasonably request to
evidence compliance with this Section. The Borrower agrees to provide such
evidence as the Bridge Lenders shall reasonably request as to the perfection
and priority status of each such security interest and Lien. Each Loan Party
agrees promptly to notify the Bridge Lender if any material portion of the
Collateral owned or held by such Loan Party is damaged or destroyed.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Bridge Lender that, so
long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, any Fee and any
other expense or amount payable under any Loan Document have been paid in full,
unless the Required Bridge Lenders shall otherwise consent in writing, the
Borrower will not, and will neither cause nor permit any of the Subsidiaries to:
SECTION 6.01 Indebtedness. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness in respect of NBD Revolving Loans and other
Indebtedness existing on the date hereof and set forth on Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
38
44
(c) (i) in the case of the Borrower, the Senior Subordinated Note
and the Debentures and (ii) in the case of the Subsidiary Guarantors, the
Guarantees guaranteeing the Senior Subordinated Note;
(d) Permitted Foreign Indebtedness and the aggregate outstanding
amount of Permitted Foreign Investments made pursuant to Section 6.04(i);
(e) intercompany loans and letters of credit and guarantees in
support of Indebtedness and advances permitted by Section 6.04(b), (h), (i) and
(k).
(f) Indebtedness consisting of purchase money Indebtedness
(including purchase money Indebtedness that is in existence with respect to any
asset or other property at the time such asset or other property is acquired),
industrial revenue bonds or Capital Lease Obligations incurred in the ordinary
course of business after the Closing Date to finance Capital Expenditures,
provided that (i) the Indebtedness incurred shall not exceed the purchase price
of the assets financed thereby and (ii) the aggregate principal amount of any
Indebtedness or Capital Lease Obligations incurred during each fiscal year
pursuant to this paragraph (g) shall not exceed $10,000,000;
(g) Indebtedness of the Borrower and the Subsidiaries owed to
(including obligations in respect of letters of credit for the benefit of) any
person (i) providing worker's compensation, health, disability or other employee
benefits or property, casualty or liability insurance to any Loan Party or (ii)
supporting real estate lease payments of any Loan Party, or pursuant to
reimbursement or indemnification obligations to such person, in each case
incurred in the ordinary course of business;
(h) Indebtedness of the Borrower or any Subsidiary in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations
and trade related letters of credit, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(i) Indebtedness issued by the Borrower, in lieu of the payment
of cash, in connection with the purchase or redemption of Capital Stock held by
officers, directors or employees (or Permitted Transferees (as such term is
defined in the Stockholders' Agreement) of any such person) of the Borrower or
any Subsidiary, subject to the proviso in Section 6.06(a)(iv);
(j) Indebtedness incurred pursuant to any sale and lease-back
transaction made in accordance with Section 4.12;
(k) unsecured Indebtedness in addition to that permitted by
clauses (a) through (j) above in an aggregate principal amount not to exceed
$1,000,000 at any time outstanding; and
(l) extensions, renewals or refinancings of Indebtedness under
paragraphs (a) and (g) (subject to the proviso contained in such clause (g)) so
long as (A) such Indebtedness
39
45
("Refinancing Indebtedness") is in an aggregate principal amount not greater
than the aggregate principal amount of the Indebtedness being extended,
renewed or refinanced plus the amount of any premiums required to be paid
thereon and fees and expenses associated therewith, (B) such Refinancing
Indebtedness has a later or equal final maturity and a longer or equal weighted
average life than the Indebtedness being extended, renewed or refinanced, (C)
the interest rate applicable to such Refinancing Indebtedness is a market
interest rate (as determined in good faith by the Board of Directors of the
Borrower) as of the time of such extension, renewal or refinancing, (D) if the
Indebtedness being extended, renewed or refinanced is subordinated to the
Obligations, such Refinancing Indebtedness is subordinated to the Obligations
to the same extent as the Indebtedness being extended, renewed or refinanced
and (E) at the time and after giving effect to such extension, renewal or
refinancing, no Default or Event of Default shall have occurred and be
continuing.
SECTION 6.02 Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and the
Subsidiaries existing on the date hereof and set forth on Schedule 6.02(a),
provided that such Liens shall secure only those obligations which they secure
on the date hereof (and extensions, renewals and refinancings of such
obligations permitted by Section 6.01);
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary, provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition
and (ii) such Lien does not apply to any other property or assets of the
Borrower or any Subsidiary;
(d) Liens for taxes, assessments, governmental charges and levies
not yet due or which are being contested or are unpaid in compliance with
Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens arising in the ordinary course of business and
securing obligations that are not due and payable or which are being contested
in compliance with Section 5.03;
(f) Liens of landlords or of mortgagees of landlords arising by
operation of law, provided that the rental payments secured thereby are not yet
due and payable;
(g) pledges and deposits made in the ordinary course of business
in compliance with workmen's compensation, unemployment insurance and other
social security or similar laws or regulations;
40
46
(h) pledges and deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(i) zoning restrictions, easements, rights-of-way, minor defects
or irregularities in title, restrictions on use of real property and other
similar encumbrances which, in the aggregate, do not materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or the Subsidiaries;
(j) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case of
improvements, constructed) by the Borrower or any Subsidiary, provided that (i)
such security interests secure Indebtedness permitted by Section 6.01(f), (ii)
such security interests are incurred, and the Indebtedness secured thereby is
created, within 120 days after such acquisition (or construction) or are
incurred to extend, renew or refinance such security interests and Indebtedness
incurred within such 120- day period, (iii) the Indebtedness secured thereby
does not exceed the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary;
(k) attachment or judgment Liens securing judgments, unless the
aggregate amount of such judgments shall (A) exceed $500,000 (except to the
extent the Administrative Agent shall have received satisfactory evidence that
such judgments are covered by insurance) and (B) remain undischarged for a
period of more than 30 consecutive days during which execution shall not be
effectively stayed;
(l) Liens to secure Capital Lease Obligations, industrial revenue
bonds or Indebtedness permitted by Section 6.01(f), provided that such Liens do
not extend to any property or assets of the Borrower or any Subsidiary other
than the property or assets financed thereby;
(m) UCC filings that relate to the preservation of claims in
respect of interests in property subject to operating leases (it being agreed
that the permissiveness of such filing hereunder shall not be considered a
waiver of any claim that the Bridge Lenders or the Collateral Agent may have on
the property to which such interest relates);
(n) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of custom duties in connection with the
importation of goods in the ordinary course of business; and
(o) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Borrower or any of the Subsidiaries in the ordinary course of business.
41
47
SECTION 6.03 Intentionally Omitted.
SECTION 6.04 Investments, Loans and Advances. Purchase, hold or
acquire any Capital Stock, evidences of Indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other person, except:
(a) investments by the Borrower or any Subsidiary existing on the
Closing Date in the Capital Stock of any Subsidiary;
(b) investments, loans or advances made by (i) any Subsidiary in
or to the Borrower or (ii) the Borrower or any Subsidiary in or to the Borrower
or any other Subsidiary;
(c) Permitted Investments, and purchases and repurchases of
Capital Stock pursuant to Article IV, Section 2.5 or Section 2.6 of the
Stockholders' Agreement;
(d) investments consisting of non-cash consideration received in
connection with a sale of assets permitted by Section 6.05;
(e) investments arising from transactions by any Loan Party or
any of the Subsidiaries with customers or suppliers (including Affiliates to the
extent permitted by Section 6.07) in the ordinary course of business, including
endorsements of negotiable instruments and debt obligations and other
investments received in connection with the bankruptcy or reorganization of
customers and suppliers and in settlement of delinquent obligations of, and
other disputes with, customers or suppliers, arising in the ordinary course of
business, and in the exercise of the reasonable business judgment of such
Borrower or such Subsidiary;
(f) advances not exceeding $250,000 in the aggregate outstanding
at any time to employees made to cover payroll, travel and similar expenses that
are expected at the time of such advances ultimately to be treated as expenses
in accordance with GAAP and that are made in the ordinary course of business;
(g) loans or advances to employees made in the ordinary course of
business not exceeding $250,000 in the aggregate outstanding at any time;
(h) investments, loans or advances made by any Foreign Subsidiary
in or to any other Foreign Subsidiary;
(i) Permitted Foreign Investments in APX-Brazil (as such term is
defined in the Acquisition Agreement) not to exceed $3,000,000 in any fiscal
year of the Borrower;
(j) Capital Expenditures and other purchases permitted hereunder;
42
48
(k) investments, loans and advances existing on the date hereof
and as set forth on Schedule 6.04(k) and renewals, replacements and extensions
thereof, provided that the amount of any such renewed, replaced or extended
investment, loan or advance shall be for an amount no greater than the amount of
the investment, loan or advance being renewed or extended;
(l) investments, loans and advances in or to Joint Ventures not
exceeding in the aggregate $1,000,000 at any time outstanding; and
(m) investments, loans or advances in addition to those permitted
by clauses (a) through (l) above not exceeding in the aggregate $1,000,000 at
any time outstanding.
SECTION 6.05 Mergers, Consolidations and Sales of Assets. Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or any of its assets
(whether now owned or hereafter acquired) or any Capital Stock of any
Subsidiary, except that:
(a) the Borrower and any Subsidiary may sell inventory and
Permitted Investments and sell obsolete or worn-out assets in the ordinary
course of business;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing,
(i) any wholly owned subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any wholly owned
subsidiary may merge into or consolidate with any other wholly owned Domestic
Subsidiary in a transaction in which the surviving entity is a wholly owned
Domestic Subsidiary; (iii) any 90%-Owned Foreign Subsidiary may merge into any
other 90%-Owned Foreign Subsidiary in a transaction in which the surviving
entity is a 90%-Owned Foreign Subsidiary and no person other than the Borrower,
a wholly owned Domestic Subsidiary or a 90%-Owned Foreign Subsidiary receives
any consideration other than interests in the surviving entity to any applicable
minority interest holder not exceeding the proportionate interests of such
minority interest holder in the applicable Subsidiary and (iv) any direct wholly
owned subsidiary of any Foreign Subsidiary may merge into such Foreign
Subsidiary or into another direct wholly owned subsidiary of such Foreign
Subsidiary so long as no person other than such Foreign Subsidiary receives any
consideration;
(c) (i) any Subsidiary Guarantor or any Subsidiary may sell,
transfer, lease or otherwise dispose of any of its assets to any Loan Party,
(ii) any 90%-Owned Foreign Subsidiary may sell, transfer, lease or otherwise
dispose of any of its assets to any 90%-Owned Foreign Subsidiary and (iii) any
direct wholly owned subsidiary of any Foreign Subsidiary may sell, transfer,
lease or otherwise dispose of any of its assets to such Foreign Subsidiary or
another wholly owned subsidiary of such Foreign Subsidiary;
(d) any sale and lease-back transaction may be effected;
43
49
(e) any Loan Party or any Subsidiary may sell any assets,
provided that (i) the aggregate fair market value of all such assets sold
pursuant to this clause (e) shall not exceed $1,000,000 in any fiscal year and
(ii) within 60 days after any such asset sale, such Loan Party or Subsidiary
shall apply the Net Cash Proceeds thereof to purchase assets used in the
business of such Loan Party or Subsidiary or to make an investment in another
Loan Party that within such 60-day period uses the proceeds of such investment
to purchase assets used in the business of such other Loan Party;
(f) any Loan Party or any Subsidiary may lease or sublease
properties in which it has interests or lease any other property in the ordinary
course of business; and
(g) a Foreign Subsidiary may issue (i) any director qualifying
shares and (ii) its Capital Stock (A) to the extent it is required to do so
pursuant to local ownership laws in the applicable foreign country and (B) to
the management of such Foreign Subsidiary under any employee stock option, stock
purchase, stock grant or other similar incentive or employee benefit plan in
existence from time to time.
provided, however, that any sale, transfer or other disposition of assets or
stock otherwise permitted by this Section 6.05 (other than pursuant to clauses
(a), (b) and (c) above) shall not be permitted unless (A) such sale, transfer
or other disposition is for consideration at least 80% (or 100% in the case of
lease payments) of which is cash and (B) such consideration is at least equal
to the fair market value of the assets sold, transferred or disposed of (as
determined in good faith by the board of directors of the Borrower) and
provided, further that for purposes of the immediately preceding proviso, (i)
any proceeds from such sale used to pay the outstanding principal amount of,
premium or penalty, if any, interest and other amounts on any Indebtedness
required to be repaid under the terms thereof or by applicable law as a result
of such sale, transfer or other disposition and (ii) in the case of a sale of a
distinct business unit that is structured as a sale of assets, the assumption
of liabilities (other than Indebtedness) of such business unit by the purchaser
thereof shall, in each case, be deemed cash.
SECTION 6.06 Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly,
any dividend or make any other distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, with
respect to any shares of its Capital Stock or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permit any Subsidiary to
purchase or acquire for value) any shares of any class of its Capital Stock or
set aside any amount for any such purpose; provided, however, that:
(i) any Subsidiary may declare and pay dividends to, repurchase
its Capital Stock from, or make other distributions to, the Borrower or any
of its wholly owned Subsidiary (or, in the case of non-wholly owned
Subsidiaries, to or from the Borrower or any Subsidiary and each other
owner of Capital Stock of such Subsidiary on a pro rata basis (or more
favorable
44
50
basis from the perspective of the Borrower or such Subsidiary) based on
their relative ownership interests);
(ii) the Borrower may declare and pay dividends solely in shares
of Capital Stock (other than Disqualified Stock) of the Borrower and may
exchange any shares of its Capital Stock for other shares of its Capital
Stock;
(iii) (A) the Borrower or a Subsidiary may purchase or redeem, and
the Borrower may make payments of principal and interest on Indebtedness
issued pursuant to Section 6.01(i) to purchase or redeem, shares of Capital
Stock (or options or warrants in respect of such shares) of the Borrower or
any Subsidiary (including related stock appreciation rights or similar
securities) pursuant to Article IV, Section 2.5 or Section 2.6 of the
Stockholders' Agreement and (B) any Subsidiary may declare and pay
dividends or make other distributions to the Borrower the proceeds of which
are to be used by the Borrower pursuant to clause (A);
(iv) the Borrower shall be permitted to issue Debentures to any
person in exchange for shares of Series A Preferred Stock of Holdings in
accordance with the articles of incorporation of Holdings if no Default or
Event of Default shall have occurred and be continuing.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other equity interest
or (ii) make or repay any loans or advances to the Borrower or the parent of
such subsidiary (subclauses (i) and (ii) are collectively referred to as an
"Upstream Payment") other than encumbrances and restrictions:
(A) pursuant to the Loan Documents or the Senior Subordinated
Note documents;
(B) existing under, or by reason of, applicable law;
(C) contained in any debt instrument relating to a person
acquired after the date hereof, provided that (x) such
instrument was in existence at the time of such acquisition
and was not created in contemplation of or in connection
with such acquisition, (y) the officers of the Borrower
reasonably believe at the time of such acquisition that the
terms of such instrument will not encumber or restrict the
ability of such acquired person to make an Upstream Payment
and (z) such instrument contains no express encumbrances or
restrictions on the ability of such acquired person to make
an Upstream Payment, provided that such instrument contains
no express encumbrances or restrictions on the ability of
the applicable obligor thereon to make an Upstream Payment;
45
51
(D) contained in or required by Permitted Foreign Indebtedness;
and
(E) contained in agreements for Asset Sales permitted under
Section 6.05.
SECTION 6.07 Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that the Borrower or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties; provided,
however, that the foregoing restriction shall not apply to (i) any transactions
expressly permitted by this Agreement, including those permitted by Section
6.06, (ii) transactions among Foreign Subsidiaries, (iii) transactions pursuant
to agreements entered into or in effect on the Closing Date and set forth on
Schedule 6.07, including amendments thereto entered into after the Closing
Date, provided that the terms of any such amendment are not, in the aggregate,
less favorable to the Bridge Lenders than the terms of such agreement prior to
such amendment or (iv) any transactions among the Loan Parties.
SECTION 6.08 Other Indebtedness and Agreements.
(a) (i) Make any distribution, whether in cash, property,
securities or a combination thereof, other than scheduled payments of principal
and interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any of the
Senior Subordinated Note, the Debentures or any other Indebtedness for borrowed
money (other than Indebtedness under the Loan Documents and Indebtedness
incurred pursuant to ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇) or (k) or any
Refinancing Indebtedness in respect thereof) of any Loan Party or any
Subsidiary, (ii) make any payment or prepayment of any such Indebtedness that
would violate the terms of this Agreement or of such Indebtedness, any agreement
or document evidencing, related to or securing the payment or performance of
such Indebtedness or any subordination agreement or provision applicable to such
Indebtedness or (iii) pay in cash any amount in respect of such Indebtedness
that may at the applicable Loan Party's or Subsidiary's option be paid in kind
thereunder.
(b) Notwithstanding anything contained in this Section 6.08 to
the contrary,
(i) the Borrower and the Subsidiaries shall be permitted to
refinance any Indebtedness to the extent permitted by Section 6.01; and
(ii) the Borrower shall be permitted to make payments in respect
of any Senior Subordinated Note in accordance with the terms thereof and to
pay interest on the Debentures solely in the form of additional Debentures
in accordance with the terms thereof.
46
52
(c) Permit any waiver, supplement, modification, amendment,
termination or release of any indenture, instrument or agreement governing the
Debentures, the Senior Subordinated Note (or any Indebtedness issued to
refinance such Indebtedness in accordance with this Agreement), to the extent
that any such waiver, supplement, modification, amendment, termination or
release would be adverse to the Bridge Lenders in any material respect.
SECTION 6.09 Minimum EBITDA. Permit Consolidated EBITDA on the
last day of each applicable period indicated below for the applicable period
indicated below to be less than the corresponding cumulative amount indicated
below:
Period Amount
Quarter ending March 31, 1997 $ 5,100,000
Six months ending June 30, 1997 $12,600,000
Nine months ending September 30, 1997 $20,800,000
SECTION 6.10 Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio of the Borrower and its Subsidiaries to be less than the
respective ratios indicated below on the last day of each period indicated
below:
Period Ratio
January 1, 1997 through December 31, 1997 1.00 : 1.00
January 1, 1998 through December 31, 1998 1.10 : 1.00
January 1, 1999 through December 31, 1999 1.15 : 1.00
January 1, 2000 through December 31, 2000
and each December 31, thereafter 1.20 : 1.00
SECTION 6.11 Net Worth. Permit Consolidated Net Worth at any time
to be less than the respective amounts indicated below for the respective
periods indicated below (taken as a single accounting period):
Period Amount
Closing Date through December 31, 1997 Closing Date Net
Worth less $1,000,000
47
53
January 1, 1998 through December 31, 1998 Closing Date Net
Worth plus $4,000,000
January 1, 1999 through December 31, 1999 Closing Date Net
Worth plus $11,500,000
January 1, 2000 through December 31, 2000
and thereafter Closing Date Net
Worth plus $16,500,000
SECTION 6.12 Capital Expenditures. Incur Capital Expenditures in
excess of $10,000,000 in any fiscal year commencing with the fiscal year ending
December 31, 1997.
SECTION 6.13 Business of the Borrower and Subsidiaries. Engage at
any time in any business or business activity other than the business currently
conducted by it and business activities reasonably incidental thereto.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made by a Loan
Party in or in connection with any Loan Document or the borrowings hereunder, or
any representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any Additional Credit Disbursement
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any
Loan or any Fee or any Additional Credit Disbursement or any other amount (other
than an amount referred to in (b) above) due under any Loan Document, when and
as the same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a) or 5.08 or in Article VI;
48
54
(e) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or any Bridge Lender to the Borrower;
(f) the Borrower or any Subsidiary shall (A) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
in a principal amount in excess of $1,000,000 when and as the same shall become
due and payable, or (B) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to in this
clause (B) is to cause, or to permit the holder or holders of such Indebtedness
or a trustee on its or their behalf (with or without the giving of notice, the
lapse of time or both) to cause, such Indebtedness to become due prior to its
stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Borrower or any Subsidiary, or of a substantial
part of the property or assets of the Borrower or any Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of the property or assets of the Borrower or any Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
or for a substantial part of the property or assets of the Borrower or any
Subsidiary, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000, which amount is not covered by
insurance (provided that in the event such a judgment is covered by insurance,
the Bridge Lenders are provided with satisfactory evidence that the insurance
provider will provide the coverage relating thereto) shall be rendered against
the Borrower and/or any Subsidiary and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be
49
55
legally taken by a judgment creditor to levy upon assets or properties of the
Borrower or any Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Bridge Lenders, when taken together with all other such
ERISA Events, could reasonably be expected to result in liability of the
Borrower or any Subsidiary in an aggregate amount exceeding $1,000,000;
(k) any security interest purported to be created by any Security
Document and to extend to assets that are not immaterial to the Borrower and the
Subsidiaries shall cease to be, or shall be asserted by any Loan Party not to
be, a valid, perfected, first priority (except as otherwise expressly provided
in this Agreement or such Security Document) security interest in the
securities, assets or properties covered thereby, except to the extent that any
such loss of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is covered by
a lender's title insurance policy and the Collateral Agent is provided with
satisfactory evidence that related insurance provider will provide the coverage
relating thereto; or
(l) any Loan Document shall not be for any reason, or shall be
asserted by any Loan Party not to be, in full force and effect and enforceable
in accordance with its terms;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent shall, only at the request
of the Required Bridge Lenders, by written notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid Fees and all other liabilities of any Loan Party accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Loan Parties, anything
contained herein or in any other Loan Document to the contrary notwithstanding;
and in any event with respect to the Borrower or any Subsidiary described in
paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid Fees and all other liabilities of the Loan Parties
accrued hereunder and under any other Loan Document, shall automatically become
due and payable, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived by the Loan Parties,
anything contained herein or in any other Loan Document to the contrary
notwithstanding.
50
56
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
a Bridge Lender or a bank or other financial institution, in each case
designated by the Bridge Lenders and made a party hereto, shall be appointed to
act as Administrative Agent and Collateral Agent on behalf of the Bridge Lenders
(for purposes of this Article VIII, the Administrative Agent and the Collateral
Agent are referred to collectively as the "Agents"). Each of the Bridge Lenders
and each assignee of any such Bridge Lender, hereby irrevocably authorizes the
Agents to take such actions on behalf of such Bridge Lender or assignee and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Bridge Lenders, without hereby
limiting any implied authority, (a) to receive on behalf of the Bridge Lenders
payments of principal of and interest on the Loans and all other amounts due to
the Bridge Lenders hereunder (other than payments that are specifically
required to be paid directly to a Bridge Lender), and promptly to distribute to
each Bridge Lender its proper share of each payment so received; (b) to give
notice on behalf of each of the Bridge Lenders to the Borrower of any Event of
Default specified in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Bridge Lender copies of all notices, financial statements
and other materials delivered by any Loan Party pursuant to this Agreement or
the other Loan Documents as received by the Administrative Agent. Without
limiting the generality of the foregoing, the Agents are hereby expressly
authorized to execute any and all documents (including releases) with respect
to the Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by any
Loan Party of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Agents shall not be responsible to the Bridge Lenders
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other Loan Documents, instruments or agreements. The
Agents shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Bridge
Lenders and, except as otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding on all the Bridge
Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to any Loan Party on account
of the failure of or delay in performance or breach by any Bridge Lender of any
of its
51
57
obligations hereunder or to any Bridge Lender on account of the failure
of or delay in performance or breach by any other Bridge Lender or the Borrower
or any other Loan Party of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
If any Administrative Agent and Collateral Agent is appointed after
the date of this Agreement, it shall, as a condition to its appointment, enter
into a joinder agreement with, upon such terms as are acceptable to, the parties
hereto and become a party to this Agreement and the Loan Documents.
The Bridge Lenders hereby acknowledge that neither Agent shall be
under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Bridge Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Bridge
Lenders and the Borrower. Upon any such resignation, the Required Bridge
Lenders shall have the right to appoint a successor, provided that such
appointment shall require the consent of the Borrower (which consent shall not
be unreasonably withheld), so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Bridge Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Bridge Lenders, appoint a successor Agent which
shall be a bank with an office in New York, New York, or Detroit, Michigan,
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 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.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Bridge Lender and may exercise the same as though it were not an
Agent, and the Agents and their Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Bridge Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on its Commitments hereunder, or if such
Commitments have expired or been terminated, based on its outstanding Loans) of
any expenses incurred for the benefit of the Bridge Lenders by the Agents,
including counsel fees and compensation of agents and employees
52
58
paid for services rendered on behalf of the Bridge Lenders, that are required
to be but shall not have been reimbursed by the Borrower and (b) to indemnify
and hold harmless each Agent and any of its directors, officers, employees or
agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or arising out of this
Agreement or any other Loan Document or any action taken or omitted by it or
any of them under this Agreement or any other Loan Document, to the extent the
same are required to be but shall not have been reimbursed by the Borrower or
any other Loan Party, provided that no Bridge Lender shall be liable to an
Agent or any such other indemnified person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that resulted from the gross
negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents.
Each Bridge Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Bridge Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bridge Lender also acknowledges
that it will, independently and without reliance upon the Agents or any other
Bridge Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Borrower or any Subsidiary Guarantor, to it at ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of President (Telecopy No.
810-299-1008) with a copy to the Attention of General Counsel, (Telecopy No.
810-299-1008).
(b) if to a Bridge Lender, to it at its address (or telecopy
number) set forth on Schedule 2.01.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or when receipt is acknowledged if sent by telecopy or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case
53
59
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Bridge Lenders shall survive the making by the
Bridge Lenders of the Loans, regardless of any investigation made by the Bridge
Lenders on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not been terminated. The
provisions of Sections 9.05 and 9.15 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative
Agent, the Collateral Agent or any Bridge Lender.
SECTION 9.03 Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 9.04 Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the permitted successors
and assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrower, the Administrative Agent or the Bridge Lenders that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Bridge Lender may assign to one or more assignees all or
a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided, however, that except in the case of an assignment to a Bridge
Lender or, in the case of CVC, to 399 Venture Partners Inc., the other Bridge
Lenders must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), and the parties to each such assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance in the form attached hereto as Exhibit F (the "Assignment and
Acceptance").
54
60
(c) The Administrative Agent shall maintain at one of its offices
in The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Bridge
Lenders, and the Commitments of, and principal amount of the Loans owing to,
each Bridge Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive and the Loan
Parties, the Administrative Agent, the Collateral Agent and the Bridge Lenders
shall treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Bridge Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Loan Parties, the Collateral Agent and any Bridge Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Bridge Lender may, in connection with any assignment or
proposed assignment pursuant to this Section 9.04, disclose to the assignee or
proposed assignee any information relating to the Borrower furnished to such
Bridge Lender by or on behalf of the Borrower provided that, prior to any such
disclosure of information, each such assignee or proposed assignee shall execute
an agreement in the form of Exhibit G.
(e) Neither the Borrower nor any other Loan Party shall assign or
delegate any of its rights or duties hereunder without the prior written consent
of each Bridge Lender, and any attempted assignment without such consent shall
be null and void.
SECTION 9.05 Expenses; Indemnity.
(a) The Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent and the
Bridge Lenders in connection with the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof or incurred by the
Administrative Agent, the Collateral Agent or any Bridge Lender in connection
with the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents or in connection with the Loans made
hereunder, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent and the Collateral Agent, and, in connection with
any such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral
Agent or any Bridge Lender.
(b) The Borrower agrees to indemnify the Administrative Agent,
the Collateral Agent and each Bridge Lender, each Affiliate of any of the
foregoing persons and each of their respective directors, trustees, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any lndemnitee arising out of, in
any way connected with, or as a result of (i) any claim, litigation,
investigation or proceeding, whether or not any Indemnitee is a party thereto,
relating to the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the
55
61
parties thereto of their respective obligations thereunder, the consummation
of the Transactions and the other transactions contemplated thereby or the use
of the proceeds of the Loans or (ii) any actual or alleged presence or Release
of Hazardous Materials on any property owned or operated by the Borrower or any
of the Subsidiaries, or any Environmental Claim related in any way to the
Borrower or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity
or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent or any Bridge Lender. All amounts due under this Section
9.05 shall be payable on written demand therefor.
SECTION 9.06 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07 Waivers; Amendment.
(a) No failure or delay of the Administrative Agent, the
Collateral Agent or any Bridge Lender in exercising any power or right hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent or the Collateral Agent and the
Bridge Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Bridge Lenders.
56
62
SECTION 9.8 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan
or participation in any Additional Credit Disbursement, together with all fees,
charges and other amounts which are treated as interest or loan charges on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Bridge Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Bridge
Lender in respect of other Loans or participations or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Prime Rate to the date of
repayment, shall have been received by such Bridge Lender.
SECTION 9.09 Entire Agreement. This Agreement, the other Loan
Documents and the confidentiality agreements previously signed by the Bridge
Lenders constitute the entire contract between the parties relative to the
subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.10.
SECTION 9.11 Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in
57
63
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.12 Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.13 Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.14 Consent to Service of Process.
Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.15 Confidentiality. The Administrative Agent, the
Collateral Agent and each of the Bridge Lenders agrees to keep confidential and
not to publish, disclose or otherwise divulge (and to cause its respective
officers, directors, employees, agents and representatives to keep confidential
and not publish, disclose or otherwise divulge) the Information (as defined
below), except that the Administrative Agent, the Collateral Agent or any Bridge
Lender shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives
(including counsel) as need to know such Information (who will be informed of
the confidential nature of the Information), (b) to the extent otherwise
required by applicable laws and regulations or by any subpoena or similar legal
process, or requested by any regulatory authority (in any which event notice
thereof will be provided to the Borrower and the applicable party to the extent
not prohibited by applicable law), (c) in connection with any suit, action or
proceeding relating to the enforcement of its rights hereunder or under the
other Loan Documents or (d) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 9.15 or (ii)
becomes available, or was available, to the Administrative Agent, any Bridge
Lender or the Collateral Agent on a nonconfidential basis from a source other
than the Borrower or any of its affiliates and such source is not bound by a
confidentiality agreement to the Borrower and is not otherwise prohibited from
transmitting the information to a third party. For the purposes of this
Section, the term "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Collateral
Agent or any Bridge Lender based on any of the foregoing) that are received from
the Borrower or any of its affiliates or representatives and related to the
Borrower or any of its affiliates, any shareholder of the Borrower or any
employee,
58
64
customer or supplier of the Borrower or any of its affiliates, other
than any of the foregoing that were available to the Administrative Agent, the
Collateral Agent or any Bridge Lender on a nonconfidential basis prior to its
disclosure thereto by the Borrower. The provisions of this Section 9.15 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
59
65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MSX INTERNATIONAL, INC.
as Borrower
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
CITICORP VENTURE CAPITAL, LTD.,
as Bridge Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MASCOTECH, INC.,
as Bridge Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Bridge Credit Agreement]
66
SCHEDULE I
67
Schedule I
to the Bridge Credit
Agreement
U.K. Credit Facilities
National Westminster Bank PLC Pound 2 million
NBD Bank Pound 2 million
68
SCHEDULE 2.01
69
Schedule 2.01
to the Bridge Credit
Agreement
Commitments
Term Loan Revolving Credit
Bridge Lender Commitment Commitment
Citicorp Venture Capital, Ltd. $20,000,000.00 $30,000,000.00
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No. 212-559-1000
Att: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
MascoTech, Inc. $20,000,000.00 $30,000,000.00
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇
Attention: President
with a copy to
Attention: General Counsel
70
SCHEDULE 2.15
71
Schedule 2.15
to the Bridge Credit
Agreement
Designated Guarantee Obligations and Letters of Credit
1. Obligations under Continuing Guaranty and Indemnity for International
Credits dated December 22, 1994 and Letter Amendment, dated March 22,
1996 and January 2, 1997, to the First National Bank of Chicago with
respect to MSX International in the amount of Pound 2 million.
2. Guarantee of National Westminster Bank Plc credit facility Pound 1.6
million.
72
SCHEDULE 3.06
73
Schedule 3.06
to the Bridge Credit
Agreement
Exceptions to Performance
None.
74
SCHEDULE 3.07
75
Schedule 3.07
to the Bridge Credit
Agreement
Ownership of Subsidiaries
Subsidiary Shareholder Ownership Interest (%)
MSX International (Holdings), MSX International, Inc. 100%
Inc. ("MSX (Holdings)")
MSX International Business MSX (Holdings) 100%
Services, Inc.
MSX International Engineering MSX(Holdings) 100%
Services, Inc.
MSX International (USA), Inc. MSX (Holdings) 100%
("MSX (USA)")
MSX International Holdings MSX (Holdings) 100%
Limited ("Limited")
MSX International Limited ("MSX Limited 100%
Limited")
MascoTech Engineering GmbH MSX (Limited) 100%
MascoTech Ingenierie MSX (Limited) 100%*
SARL
Canewdon Consultants Limited MSX (Limited) 100%**
Canewdon Consultants (USA) Inc. MSX (Limited) 100%
* 1/100 part registered in the name of ▇▇▇▇ ▇▇▇▇▇▇▇.
** One share registered collectively in the names of MSX (Limited) and
Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇.
76
SCHEDULE 3.08
77
Schedule 3.08
to the Bridge Credit
Agreement
Litigation
None
78
SCHEDULE 3.13
79
Schedule 3.13
to the Bridge Credit
Agreement
Environmental Matters
None
80
SCHEDULE 3.16
81
Schedule 3.16
to the Bridge Credit
Agreement
Leased Real Property
1. See Section 1.01(a)(i) of the Disclosure Schedule to the Business
Services Acquisition Agreement, dated January 3, 1997 by and between
MSX International, Inc., a Michigan corporation, and MSX International
Business Services, Inc., a Delaware corporation.
2. See Section 1.01(a)(i) of the Disclosure Schedule to the Engineering
Services Acquisition Agreement, dated January 3, 1997 by and between
MSX International, Inc., a Michigan corporation, and MSX International
Engineering Services, Inc., a Delaware corporation.
3. Foreign leases:
A. See Section 6.10 of the Disclosure Schedule to the Acquisition
Agreement ("Acquisition Agreement") by and among MascoTech,
Inc., MSX International, Inc., a Michigan corporation, and ASG
Holdings Inc., a Delaware corporation (now known as MSX
International, Inc.) Dated as of November 12, 1996, as amended
by Amendment No. 1 dated as of January 3, 1997.
B. See Schedule 1.1(a) of the Disclosure Schedule to the APX
Business Purchase Agreement (the "APX Business Purchase
Agreement"), dated as of November 6, 1996, among MSX
International, Inc., a Michigan Corporation, Pioneer
Acquisition Corporation, a Michigan corporation, Landmark
Holdings, Inc., a Michigan corporation, Aero-Detroit, Inc., a
Michigan corporation, TAD Technical Services Ltd., an English
limited company, APX International (Europe), Ltd., an English
limited company and TAD Resources International, Inc., a
Massachusetts corporation.
82
SCHEDULE 6.01
83
Schedule 6.01
to the Bridge Credit
Agreement
Indebtedness
1. Promissory Note for $20,516,241.35, dated January 3, 1997, issued to
MSX International (Holdings), Inc. by MSX International Limited.
2. Indebtedness arising under the Bridge Credit Agreement and Loan
Documents.
3. Promissory Note for $30,000,000.00, dated January 3, 1997, issued to
MascoTech by the Borrower.
4. Indebtedness arising under the Senior Subordinated Note Purchase
Agreement, dated January 3, 1997, by and between the Borrower and
MascoTech.
5. Loan in the amount of FF 200,000, dated August 17,1994, from MSX
International Limited to MascoTech Engineering SARL.
6. Schedule I to the Bridge Credit Agreement is incorporated herein.
7. Indebtedness arising out of the Letter Agreement, dated January 3,
1997, by and between Borrower and NBD Bank.
8. Interest payments of approximately $1,952,000 owed to MascoTech GmbH.
84
SCHEDULE 6.02
85
Schedule 6.02
to the Bridge Credit
Agreement
Liens
1.
DEBTOR CREDITOR COLLATERAL DATE UCC NO.
MICHIGAN - SECRETARY OF STATE
MascoTech Automotive AT&T Credit computer equipment 6/6/96 72301B
Systems Group, Inc. Corporation (leased)
MascoTech Automotive General Electric computer equipment 8/15/96 75533B
Systems Group, Inc. Capital Computer
Leasing Corporation
MascoTech Automotive General Motors automotive parts 5/26/94 C846421
Systems Group, Inc. Corporation Service bearing any "GM"
(d/b/a MascoTech Special Parts Operations trademark
Vehicles)
MascoTech Auto Systems Sanwa Leasing 5 Dell pentium 1/4/96 D048939
Group Corporation computers
MascoTech Auto Systems Sanwa Leasing computer equipment 7/10/96 D115859
Group Corporation
MascoTech Auto Systems Sanwa Leasing computer equipment 8/13/96 D127714
Group Corporation
MascoTech Automotive Sharp Electronic 2 copier systems 4/7/95 54553B
Systems Group, Inc. Credit Co. (leased)
MascoTech Automotive USL Capital computer equipment 12/28/93 38441B
Systems Corporation
MascoTech Marketing XEROX Corporation 1 Xerox machine 7/7/93 58119B
MascoTech Marketing Pitney ▇▇▇▇▇ Credit equipment subject to 9/7/94 C881536
Services Corporation lease #5181680-301
dated 6/24/94
MascoTech Technical AT&T Capital Services Computers and related 8/2/95 and 5892B;
Services Corporation equipment subject to amended amended
lease dated 7/25/95. 12/18/95 64813B
Amendment added
additional equipment
86
DEBTOR CREDITOR COLLATERAL DATE UCC NO.
MascoTech Technical AT&T Capital Services 1 computer (located at 11/27/95 63635B
Services Corporation ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇ ▇▇)
subject to lease dated
11/10/95
MascoTech Training & AT&T Capital Services 4 IBM computers 6/2/95 56780B
Visual Services Corporation subject to lease dated
5/19/59
MICHIGAN - OAKLAND COUNTY
MascoTech Technical AT&T Capital Services computers and related 8/2/95 95-05881
Services Corporation equipment subject to
lease dated 7/25/95
MISSOURI - SECRETARY OF STATE
MascoTech Special Hawkeye Leasing 3 forklifts 3/18/96 2643395
Vehicles Corporation
VIRGINIA - CORPORATIONS COMMISSION
[MascoTech Automotive Homestead Materials Boom lift 10/23/95 7205]
Systems Group, Inc. Handling Co.
2. Liens listed on Schedule 3.1(a)(ii) to the APX Business Purchase
Agreement and the additional liens listed below:
Michigan filings in favor of Bay Bank: D137112
D138429
D138430
Michigan filings in favor of Citizens: D147157
Massachusetts filings in favor of Citizens: 421826
3. Liens in favor of NBD and its assignees established pursuant to the
Letter Agreement dated as of January 3, 1997.
87
SCHEDULE 6.04
88
Schedule 6.04
to the Bridge Credit
Agreement
Intercompany Indebtedness
1. Schedule 6.01 hereto is incorporated herein.
2. Intercompany Indebtedness
MEEL loans to employees:
Capital Sum Balance as at
Employee Name (Pounds) Start Date Term 7/30/96
------------- ----------- ---------- --------- -------------
Claine R 300.00 1-31-96 12 months 125.00
▇▇▇▇▇▇▇ C 3,000.00 3-31-95 20 months 450.00
▇▇▇▇ M 300.00 6-27-95 No repayment
details notes.
Initial period 35
days
Leaver J 1,500.00 1-31-96 12 months 625.00
Mackintosh D 260.00 2-29-96 13 months 140.00
▇▇▇▇▇▇ L 2,000.00 1-31-95 24 months 416.73
▇▇▇▇▇▇ L 300.00 11-15-94 No repayment
details noted.
Initial period 78
days.
▇▇▇▇▇▇▇ M 260.00 2-29-96 13 months 140.00
▇▇▇ J 500.00 10-31-95 12 months 83.33
Saxby S 260.00 2-29-96 13 months 140.00
▇▇▇▇▇▇▇ O 260.00 2-29-96 13 months 140.00
Overy J 3,200.00 9-30-96 17 months 3,200.00
▇▇▇▇▇▇ A 200.00 8-31-96 4 months 200.00
89
MascoTech Limited
- MascoTech Limited loan to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the original amount of
85,000 (Pounds.).
GmbH
GmbH loan to employee:
Employee Name Amount Start Date Term Balance
------------- ------ ---------- ---- -------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DM 2,000.00 6-3-96 4 months DM 1,500.00
90
SCHEDULE 6.07
91
Schedule 6.07
to the Bridge Credit
Agreement
1. Schedule 6.01 Indebtedness is incorporated herein, excluding the
indebtedness to bank section.
92
- Borrower leases motor vehicles under a confidential lease
agreement between ARI Leasing and MascoTech, Inc. Schedule of
leases previously provided to Buyer.
- Tranpsortation Program Contracts coordinated and/or provided
by MascoTech, Inc. or Masco Corporation are used by the
business during the calendar year 1995.
- National Purchasing Agreements coordinated and/or provided by
MascoTech, Inc. or Masco Corporation are used for the
following vendors:
Alro Steel Corporation
American International, Inc.
AT&T
AV Systems
Cellular One
Contract Interiors/Steelcase
CDP Imaging Systems/Panasonic
Governor Computer Supply
Grainger
Graybar Electric
Hewlett Packard
Inecamp
IBM
Marvel Group, Inc.
Safety Supply America
Sharp Electronics Corp.
Staples Business Advantage
Stream International
Sun Microsystems
Ultramax/SKJ
- Borrower subleases a portion of its ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ to
Saturn and also has an occupancy arrangement with Titan Wheel.
- Part of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, is used by
non-business employees and Borrower allocates cost to MascoTech, Inc.
- Part of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ rent is paid for by MascoTech, Inc.
93
Intercompany Indebtedness
MEEL loans to employees:
Capital Sum Balance as at
Employee Name (Pounds) Start Date Term 7/30/96
------------- ----------- ---------- --------- -------------
Claine R 300.00 1-31-96 12 months 125.00
▇▇▇▇▇▇▇ C 3,000.00 3-31-95 20 months 450.00
▇▇▇▇ M 300.00 6-27-95 No repayment
details notes.
Initial period 35
days
Leaver J 1,500.00 1-31-96 12 months 625.00
Mackintosh D 260.00 2-29-96 13 months 140.00
▇▇▇▇▇▇ L 2,000.00 1-31-95 24 months 416.73
▇▇▇▇▇▇ L 300.00 11-15-94 No repayment
details noted.
Initial period 78
days.
▇▇▇▇▇▇▇ M 260.00 2-29-96 13 months 140.00
▇▇▇ J 500.00 10-31-95 12 months 83.33
Saxby S 260.00 2-29-96 13 months 140.00
▇▇▇▇▇▇▇ O 260.00 2-29-96 13 months 140.00
Overy J 3,200.00 9-30-96 17 months 3,200.00
▇▇▇▇▇▇ A 200.00 8-31-96 4 months 200.00
MascoTech Limited
- MascoTech Limited loan to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the original amount of
85,000 (Pounds).
GmbH loan to employee:
94
Employee Name Amount Start Date Term Balance
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DM 2,000.00 6-3-96 4 months DM 1,500.00
95
EXHIBIT A
96
EXHIBIT A
to the Bridge Credit
Agreement
FORM OF BORROWING REQUEST
Citicorp Venture Capital, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
MascoTech, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Gentlemen:
Reference is hereby made to the Bridge Credit Agreement dated as of
January __, ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇ Credit Agreement"), among MSX INTERNATIONAL,
INC., (the "Borrower") and the lenders from time to time party thereto (the
"Bridge Lenders"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Bridge Credit
Agreement. The undersigned Borrower hereby gives you notice pursuant to
Section 2.02 of the Bridge Credit Agreement that it requests a Borrowing under
the Bridge Credit Agreement, and in that connection sets forth below the terms
on which such Borrowing is requested to be made:
(A) Type of Borrowing: Revolving Credit Borrowing
(B) Date of Borrowing
(which is a Business Day) ___________________
97
(D) Principal Amount of Borrowing (1) _______________________
(E) Funds are requested to be disbursed to the account in the name of
Borrower, NBD Bank, Detroit, MI (Account No. ), ABA ▇▇▇▇▇▇▇▇▇.
Upon acceptance of any or all of the Loans offered by the Bridge
Lenders in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Sections
4.01(b) and (c) of the Bridge Credit Agreement have been satisfied.
MSX INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
__________________________________
(1) Not less than $5,000,000 and, in each case, in an integral multiple of
$1,000,000, but in any event not exceeding the aggregate amount of the Revolving
Credit Commitment available at such time.
98
EXHIBIT B
INTENTIONALLY OMITTED
99
EXHIBIT C
INTENTIONALLY OMITTED
100
EXHIBIT D
INTENTIONALLY OMITTED
101
EXHIBIT E
INTENTIONALLY OMITTED
102
EXHIBIT F
103
EXHIBIT F
to the Bridge Credit
Agreement
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Bridge Credit Agreement dated as of January __,
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇ Credit Agreement"), among MSX INTERNATIONAL, INC., a Delaware
corporation (the "Borrower"), and the lenders from time to time party thereto
(the "Bridge Lenders"). Terms defined in the Bridge Credit Agreement are used
herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below (but not prior
to the registration of the information contained herein in the Register pursuant
to Section 9.04(c) of the Bridge Credit Agreement), the interest set forth below
in the Assignor's interest, rights and obligations under the Bridge Credit
Agreement and the other Loan Documents. From and after the Effective Date (i)
the Assignee shall be a party to and be bound by the provisions of the Bridge
Credit Agreement and, to the extent of the interests assigned by this Assignment
and Acceptance, have the rights and obligations of a Bridge Lender thereunder
and under the Loan Documents and (ii) the Assignor shall, to the extent of the
interests assigned by this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Bridge Credit Agreement.
2. This Assignment and Acceptance is being delivered to each of the
Borrower and the Bridge Lenders, together with, if the Assignee is not already a
Bridge Lender under the Bridge Credit Agreement, an Administrative Questionnaire
in the form of Exhibit G to the Bridge Credit Agreement.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address and Telecopy Number for Notices:
104
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the date of execution
of this Assignment and Acceptance):
(1) (2) (3) (4)
Facility Principal Amount of Principal Amount Percentage Assigned
Commitment**/ of Commitment of Commitment (in
or outstanding Loans***/ (in the case of the the case of the
Revolving Credit Revolving Credit
Commitments) or Commitments) or
outstanding Loans outstanding Loans
(in the case of (in the case of
Term Loans) Term Loans)
Assigned****/ on the Effective Date***
Term Loan $ $ %
Revolving Credit $ $ %
__________________________________
**/With respect to the Revolving Credit Commitments and calculated after giving
effect to all assignments of the Revolving Credit Commitments that will be
effective prior to the Effective Date.
***/With respect to the Term Loans and calculated after giving effect to all
assignments of the Term Loans that will be effective prior to the Effective
Date.
****/If the Revolving Credit Commitments or outstanding Term Loans are reduced
prior to the Effective Date, [(a) the amount set forth in column (3) with
respect thereto to shall remain unchanged and (b) the percentage set forth in
column (4) with respect thereto shall be increased to the fraction (represented
by a percentage) equal to (x) the amount set forth in column (3) with respect
thereto over (y) the principal amount of such Commitments or such outstanding
Term Loans as are in effect on the Effective Date] [(a) the percentage set
forth in column (4) with respect to such Commitments or such outstanding Term
Loans shall remain unchanged and (b) the amount set forth in column (3) with
respect to such Commitments or such outstanding Term Loans shall be reduced to
the product of (x) the percentage set forth in column (4) with respect to
Commitments or such outstanding Term Loans as are in effect on the Effective
Date].
105
[[Amount][Percentage] Assigned of Fees Accrued (from and including the date
hereof to but not including the Effective Date)(optional):]
106
The terms set forth above are hereby agreed to Consented to by:
by
_______________________, as Assignor MSX INTERNATIONAL, INC.,
Borrower
By:_______________________________ By:___________________________
Name: Name:
Title: Title:
______________________, as Assignee. CITICORP VENTURE CAPITAL, LTD.,
Bridge Lender
By:______________________________ By:__________________________
Name: Name:
Title: Title:
MASCOTECH, INC.
Bridge Lender
By:___________________________
Name:
Title:
107
EXHIBIT G
108
EXHIBIT G
to the Bridge Credit Agreement
FORM OF
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via Telecopy to
the attention of ______________ at _______________ as soon as possible, at
Telecopy No. ____________.
______________________________________________________________________________
LENDER'S LEGAL NAME TO APPEAR IN DOCUMENTATION:
______________________________________________________________________________
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:____________________________________________________________
Street Address: ____________________________________________________________
City, State, Zip Code:_______________________________________________________
POST-CLOSING, ONGOING CREDIT CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:____________________________________________________________
Street Address: ____________________________________________________________
City, State, Zip Code:______________________________________________________
Phone Number: ____________________________________________________________
Telecopy Number: ____________________________________________________________
Backup Contact:: ____________________________________________________________
109
Street Address: ____________________________________________________________
City, State, Zip Code:_______________________________________________________
Phone Number: ____________________________________________________________
Telecopy Number: ____________________________________________________________
TAX WITHHOLDING:
Nonresident Alien _______Y* ______N
*Form 4224, 1001 or W-8 (with the certificate required by 2.20(e)) Enclosed
Tax ID Number ___________________
POST-CLOSING, ONGOING ADMINISTRATIVE CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWING, PAYDOWNS, ETC.
Contact: ____________________________________________________________________
Street Address: ____________________________________________________________
City, State, Zip Code:_______________________________________________________
Phone Number: ____________________________________________________________
Telecopy Number: ____________________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank to which funds are to be transferred:
______________________________________________________________________________
Routing Transit/ABA number of Bank to which funds are to be transferred:
_______________________________________________________________________________
110
Name of Account, if applicable:
______________________________________________________________________________
Account Number: ____________________________________________________________
Additional Information:______________________________________________________
MAILINGS:
Please specify the person to whom the Borrower should send financial information
and compliance information received subsequent to the closing (if different from
primary credit contact):
Name:________________________________________________________________________
Street Address: ____________________________________________________________
City, State, Zip Code:_______________________________________________________
It is very important that all the above information be accurately completed and
that this questionnaire be returned to the person specified in the introductory
paragraph of this questionnaire as soon as possible. If there is someone other
than yourself who should receive this questionnaire, please notify us of that
person's name and telecopy number and we will telecopy a copy of the
questionnaire. If you have any questions about this form, please call
___________________.