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EXHIBIT 4.1
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JULY 31, 2000
AMONG
OXFORD AUTOMOTIVE, INC.
AND
THE BORROWING SUBSIDIARIES PARTY HERETO
AS BORROWERS
AND
THE LENDERS AND ISSUERS PARTY HERETO,
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
COMERICA BANK
AS SYNDICATION AGENT
CREDIT SUISSE FIRST BOSTON
AS DOCUMENTATION AGENT
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
AS ARRANGER AND BOOK MANAGER
WEIL, GOTSHAL & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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TABLE OF CONTENTS
PAGE
Article I Definitions, Interpretation and Accounting Terms..................................2
Section 1.1. Defined Terms.....................................................................2
Section 1.2. Computation of Time Periods......................................................33
Section 1.3. Accounting Terms and Principles; Dollar Equivalent...............................33
Section 1.4. Certain Terms....................................................................33
Article II The Facilities.......................................................................34
Section 2.1. The Commitments..................................................................34
Section 2.2. Borrowing Procedures.............................................................35
Section 2.3. Swing Loans......................................................................38
Section 2.4. Letters of Credit................................................................39
Section 2.5. Bankers' Acceptances.............................................................43
Section 2.6. Reduction and Termination of the Revolving Credit Commitments....................47
Section 2.7. Repayment of Loans...............................................................47
Section 2.8. Evidence of Debt.................................................................48
Section 2.9. Optional Prepayments.............................................................48
Section 2.10. Mandatory Prepayments............................................................49
Section 2.11. Interest.........................................................................50
Section 2.12. Conversion/Continuation Option...................................................51
Section 2.13. Fees.............................................................................52
Section 2.14. Payments and Computations........................................................53
Section 2.15. Special Provisions Governing Eurocurrency Rate Loans.............................56
Section 2.16. Capital Adequacy and Breakage Costs..............................................57
Section 2.17. Taxes............................................................................58
Section 2.18. Criminal Rate of Interest........................................................59
Section 2.19. Substitution of Lenders..........................................................60
Section 2.20. Facilities Increases.............................................................60
Article III Conditions To Loans And Letters Of Credit............................................61
Section 3.1. Conditions Precedent to Initial Loans and Letters of Credit......................61
Section 3.2. Conditions Precedent to Each Loan and Letter of Credit...........................65
Section 3.3. Conditions Precedent to the Aries Acquisition Borrowing..........................66
Article IV Representations and Warranties.......................................................66
Section 4.1. Corporate Existence and Power....................................................67
Section 4.2. Corporate Authority..............................................................67
Section 4.3. Binding Effect...................................................................67
Section 4.4. Subsidiaries.....................................................................67
Section 4.5. Litigation.......................................................................67
Section 4.6. Financial Condition..............................................................67
Section 4.7. Use of Proceeds..................................................................68
Section 4.8. Consents, Etc....................................................................68
Section 4.9. Taxes............................................................................68
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TABLE OF CONTENTS
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PAGE
Section 4.10. Title to Properties..............................................................68
Section 4.11. Labor Matters....................................................................69
Section 4.12. ERISA............................................................................69
Section 4.13. Disclosure.......................................................................69
Section 4.14. Environmental Matters............................................................70
Section 4.15. Solvency.........................................................................71
Section 4.16. No Defaults under Certain Agreements.............................................71
Section 4.17. Intellectual Property............................................................71
Section 4.18. Preferred Stock..................................................................71
Section 4.19. Investment Company Act; Public Utility Holding Company Act.......................71
Section 4.20. Senior Subordinated Debt Documents...............................................72
Section 4.21. Unrestricted Subsidiaries........................................................72
Section 4.22. Material Agreements..............................................................72
Section 4.23. Compliance With Laws.............................................................72
Section 4.24. Aries Acquisition................................................................72
Section 4.25. Mexican Facility.................................................................72
Article V Affirmative Covenants................................................................73
Section 5.1. Preservation of Corporate Existence, Etc.........................................73
Section 5.2. Compliance with Laws, Etc........................................................73
Section 5.3. Maintenance of Properties; Insurance.............................................73
Section 5.4. Reporting Requirements...........................................................74
Section 5.5. Accounting; Access to Records, Books, Etc........................................77
Section 5.6. Maintenance of Business Lines....................................................77
Section 5.7. Environmental Matters............................................................77
Section 5.8. Additional Collateral and Guaranties.............................................78
Section 5.9. Terms of Other Indebtedness......................................................79
Section 5.10. Restricted and Unrestricted Subsidiaries.........................................80
Section 5.11. Further Assurances...............................................................80
Article VI Negative Covenants...................................................................81
Section 6.1. Financial Covenants..............................................................81
Section 6.2. Indebtedness.....................................................................83
Section 6.3. Liens............................................................................85
Section 6.4. Merger; Acquisitions; Etc........................................................86
Section 6.5. Disposition of Assets; Etc.......................................................87
Section 6.6. Nature of Business...............................................................88
Section 6.7. Dividends and Other Restricted Payments..........................................88
Section 6.8. Accounting Changes; Fiscal Year..................................................89
Section 6.9. Investments......................................................................89
Section 6.10. Transactions with Affiliates.....................................................91
Section 6.11. Sale and Leaseback and other Financing Transactions..............................91
Section 6.12. Negative Pledge Limitation.......................................................92
Section 6.13. FSC Commissions..................................................................92
Section 6.14. Other Agreements.................................................................92
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.15. Subsidiary Dividends.............................................................92
Section 6.16. Preferred Stock..................................................................92
Section 6.17. Other Indebtedness and Agreements................................................93
Section 6.18. Management Fees..................................................................93
Section 6.19. Restricted Subsidiaries..........................................................93
Article VII Events of Default....................................................................93
Section 7.1. Events of Default................................................................93
Section 7.2. Remedies.........................................................................96
Section 7.3. Actions in Respect of Letters of Credit and Bankers' Acceptance..................96
Section 7.4. Rescission.......................................................................96
Article VIII The Administrative Agent; The Agents.................................................97
Section 8.1. Authorization and Action.........................................................97
Section 8.2. Administrative Agent's Reliance, Etc.............................................98
Section 8.3. The Administrative Agent Individually............................................98
Section 8.4. Lender Credit Decision...........................................................98
Section 8.5. Indemnification..................................................................98
Section 8.6. Successor Administrative Agent...................................................99
Article IX Miscellaneous........................................................................99
Section 9.1. Amendments, Waivers, Etc.........................................................99
Section 9.2. Assignments and Participations..................................................101
Section 9.3. Costs and Expenses..............................................................104
Section 9.4. Indemnities.....................................................................105
Section 9.5. Limitation of Liability.........................................................106
Section 9.6. Right of Set-off................................................................106
Section 9.7. Sharing of Payments, Etc........................................................107
Section 9.8. Notices, Etc....................................................................107
Section 9.9. No Waiver; Remedies.............................................................108
Section 9.10. Binding Effect..................................................................108
Section 9.11. Governing Law...................................................................108
Section 9.12. Submission to Jurisdiction; Service of Process; Judgment Currency...............108
Section 9.13. Waiver of Jury Trial............................................................109
Section 9.14. Marshaling; Payments Set Aside..................................................109
Section 9.15. Section Titles..................................................................110
Section 9.16. Execution in Counterparts.......................................................110
Section 9.17. Documents Evidence the Same Indebtedness........................................110
Section 9.18. Entire Agreement................................................................110
Section 9.19. Confidentiality.................................................................110
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SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Unrestricted Subsidiaries
Schedule 4.4 - Ownership of Subsidiaries
Schedule 4.5 - Litigation
Schedule 4.11 - Labor Matters
Schedule 4.14 - Environmental Matters
Schedule 4.17 - Intellectual Property
Schedule 4.18 - Preferred Stock
Schedule 4.20 - Senior Subordinated Debt Documents
Schedule 4.24 - Aries Acquisition
Schedule 4.25 - Mexican Facility Documents
Schedule 5.12 - Post Closing Matters
Schedule 6.2 - Existing Indebtedness
Schedule 6.3 - Existing Liens
Schedule 6.9 - Existing Investments
Schedule 6.12 - Negative Pledge Limitations
Schedule 6.18 - Management Fees
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Letter of Credit Request
Exhibit E - Form of Notice of Conversion or Continuation
Exhibit F - Form of Opinion of Michigan Counsel for the Loan Parties
Exhibit G - Form of Guaranty
Exhibit H - Form of Pledge and Security Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July
31, 2000, among OXFORD AUTOMOTIVE, INC., a Michigan corporation (the "Company"),
each of the Subsidiaries set forth on the signature pages hereof (the "Borrowing
Subsidiaries" and together with the Company, the "Borrowers"), the Lenders (as
defined below), the Issuers (as defined below), CITICORP USA, INC. ("Citicorp"),
as agent for the Lenders and the Issuers (in such capacity, the "Administrative
Agent") and as collateral agent for the Secured Parties (as defined below) (in
such capacity, the "Collateral Agent"), COMERICA BANK, in its capacity as
syndication agent for the Lenders and the Issuers (in such capacity, the
"Syndication Agent") and CREDIT SUISSE FIRST BOSTON, in its capacity as
documentation agent for the Lenders and the Issuers (in such capacity, the
"Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Borrowing Subsidiaries and the
lenders party thereto are parties to a Second Amended and Restated Credit
Agreement dated as of May 14, 1999 (as amended, the "Existing Credit Agreement")
among the Company, the Borrowing Subsidiaries, the lenders party thereto, the
issuers party thereto and Bank One, Michigan, formerly known as NBD Bank, as
Agent (the "Existing Agent");
WHEREAS, (a) the Borrowers, the Existing Agent, the lenders
party to the Existing Credit Agreement, Citicorp and Citibank Canada (together
with Citicorp, the "Existing Lenders") have concurrently herewith entered into
the Master Assignment and Acceptance dated as of the date hereof (the "Master
Assignment Agreement") pursuant to which the lenders party to the Existing
Credit Agreement have assigned all their right, title and interest in, to and
under the Existing Credit Agreement and such other documents and delegated all
their respective obligations thereunder to the Existing Lenders and the Existing
Lenders have accepted such assignment and assumed such obligations, and (b) the
Existing Agent, Bank One, Canada, formerly known as First Chicago NBD Bank,
Canada, as collateral agent for the Lender's party to the Existing Credit
Agreement with respect to collateral in Canada (the "Existing Canadian Agent"),
the Administrative Agent, the Collateral Agent, the Bank of Montreal as Funding
Agent and the Borrowers have concurrently herewith entered in to the Assignment
and Release Agreement dated the date hereof (the "Assignment and Release
Agreement") pursuant to which the Existing Agent and the Existing Canadian Agent
have each resigned as agent and has assigned all its rights, title and interest
in, to and under the Existing Credit Agreement and the "Loan Documents" (as
defined in the Existing Credit Agreement) and delegated all its obligations
thereunder with respect thereto to the Administrative Agent or the Collateral
Agent, as applicable, and the Administrative Agent or the Collateral Agent, as
the case may be, has accepted such assignment and delegation;
WHEREAS, the Company, the Borrowing Subsidiaries, the Existing
Lenders, the Administrative Agent and the Collateral Agent have agreed to amend
and restate the Existing Credit Agreement to provide for certain amendments on
the terms set forth in this Agreement, which Agreement shall become effective
upon satisfaction of certain conditions precedent set forth herein;
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligation and liabilities existing
under the Existing Credit Agreement or evidence payment of all or any of such
obligations and liabilities, that this Agreement amend and restate in its
entirety the Existing Credit Agreement, and that from and after the Effective
Date the Existing Credit Agreement be of no further force or effect except as to
evidence the incurrence of the obligations of the Borrowers thereunder and the
representations and warranties made thereunder;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
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ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance" means Bankers' Acceptances and BA Equivalent
Loans.
"Acceptance Fee" means the fee payable at the time of the
acceptance of Bankers' Acceptances established by multiplying the face amount of
such Bankers' Acceptances by the Applicable Margin and by multiplying the
product so obtained by a fraction having a numerator equal to the number of days
in the term of such Bankers' Acceptances and a denominator of 365 or 366, as the
case may be.
"Acknowledgment and Consent of Oxford Investment Group, Inc."
means the acknowledgment and consent to the transactions contemplated by the
Loan Documents dated as of the date hereof in form and substance satisfactory to
the Administrative Agent and executed by Oxford Investment Group, Inc.
"Acquirer" means the Subsidiary of the Company acquiring
Aries.
"Acquisition" has the meaning specified in Section 6.4.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement; provided, however, for the purposes of Article VIII
and Sections 9.3, 9.4, 9.5, 9.9, 9.12, 9.13 and 9.14, each reference to
"Administrative Agent", shall be deemed to include a reference to Citicorp USA,
Inc., in its capacity as Collateral Agent.
"Affiliate" means, with respect to any Person, any other
Person which, directly or indirectly, controls, is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person who is the beneficial owner of
10% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement.
"Alternate Currency" means (a) the Canadian Dollar and (b) the
Euro; provided, however, that each such currency remains freely transferable
into Dollars.
"Applicable Lending Office" means, (a) with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan, and its
Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan and (b) with
respect to each Canadian Lender, its Canadian Lending Office in the case of
Canadian Loans or other Canadian Revolving Credit Outstandings.
"Applicable Margin" means (a) during the period commencing on
the Effective Date and ending on the date which is three Business Days after the
receipt by the Administrative Agent of the Financial Statements required to be
delivered by Section 5.4(b) for the first full Fiscal Quarter ending after the
Effective Date, with respect to Loans maintained as (i) Base Rate Loans, a rate
equal to 1.25% per annum and (ii) Eurocurrency Rate Loans and BA Rate Loans, a
rate equal to 2.5% per annum, and (b) thereafter, as of any date of
determination, a per annum rate equal to the rate set forth below opposite the
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applicable type of Loan and the then applicable Leverage Ratio (determined for
the period ending on the last day of the most recent Fiscal Quarter or Fiscal
Year, as applicable, for which Financial Statements have been delivered pursuant
to Section 5.4(b) or (c)) set forth below):
------------------------------------- ------------------------------ -----------------------------
EUROCURRENCY RATE LOANS/BA
LEVERAGE RATIO BASE RATE LOANS RATE LOANS
------------------------------------- ------------------------------ -----------------------------
REVOLVING LOANS TERM LOANS REVOLVING LOANS TERM LOANS
------------------------------------- ---------------- ------------- ----------------- -----------
Less than or equal to 3.00 to 1 0.375% 0.375% 1.5% 1.5%
Greater than 3.00 to 1 and equal to
or less than 3.50 to 1 0.50% 0.50% 1.625% 1.625%
Greater than 3.5 to 1 and equal to
or less than 4.00 to 1 0.95% 0.95 2.25% 2.25%
Greater than 4.00 to 1 and equal to
or less than 4.75 to 1 1.25% 1.25% 2.50% 2.50%
At all other times 1.50% 1.50% 2.75% 2.75%
------------------------------------- ---------------- ------------- ----------------- -----------
Subsequent changes in the Applicable Margin resulting from a change in the
Leverage Ratio shall become effective as to all Loans three Business Days after
delivery by the Borrowers to the Administrative Agent of new Financial
Statements pursuant to Section 5.4(b) for each of the first three Fiscal
Quarters of each Fiscal Year and Section 5.4(c) for each Fiscal Year.
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), if the Borrowers shall fail to deliver such
financial statements within the time periods specified in Section 5.4(b) or (c),
as applicable, the Applicable Margin from and including the 46th day after the
end of such Fiscal Quarter or the 91st day after the end of such Fiscal Year, as
the case may be, to but not including the date the Borrowers delivers to the
Administrative Agent such financial statements, shall equal the highest
Applicable Margin set forth above.
"Applicable Unused Commitment Fee Rate" means (a) during the
period commencing on the Effective Date and ending on the date which is three
Business Days after the receipt by the Administrative Agent of the Financial
Statements required to be delivered by Section 5.4(b) for the first Fiscal
Quarter ending after the Effective Date, 2.50% per annum and (b) thereafter, as
of any date of determination, a per annum rate equal to the rate set forth below
opposite the then applicable Leverage Ratio (determined for the period ending on
the last day of the most recent Fiscal Quarter or Fiscal Year, as applicable,
for which Financial Statements have been delivered pursuant to Section 5.4(b) or
(c)) set forth below):
-------------------------------------- -----------------------------
LEVERAGE RATIO UNUSED COMMITMENT FEE RATE
-------------------------------------- -----------------------------
Less than or equal to 3.00 to 1 0.25%
-------------------------------------- -----------------------------
Greater than 3.00 to 1 and equal to
or less than 3.50 to 1 0.375%
-------------------------------------- -----------------------------
Greater than 3.5 to 1 and equal to
or less than 4.00 to 1 0.45%
-------------------------------------- -----------------------------
Greater than 4.00 to 1 and equal to
or less than 4.75 to 1 0.50%
-------------------------------------- -----------------------------
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-------------------------------------- -----------------------------
LEVERAGE RATIO UNUSED COMMITMENT FEE RATE
-------------------------------------- -----------------------------
At all other times 0.50%
-------------------------------------- -----------------------------
Subsequent changes in the Applicable Unused Commitment Fee Rate resulting from a
change in the Leverage Ratio shall become effective three Business Days after
delivery by the Borrowers to the Administrative Agent of new financial
statements pursuant to Section 5.4(b) for each of the first three Fiscal
Quarters of each Fiscal Year and Section 5.4(c) for each Fiscal Year.
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), if the Borrowers shall fail to deliver such
financial statements with the time periods specified in Section 5.4(b) or (c),
as applicable, the Applicable Unused Commitment Fee from and including the 46th
day after the end of such Fiscal Quarter or the 91st day after the end of such
Fiscal Year, as the case may be, to but not including the date the Borrowers
delivers to the Administrative Agent such financial statements, shall
conclusively equal the highest Applicable Unused Commitment Fee Rate set forth
above.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Aries" means Aries Industries Mecanismes et Decoupage Fin, a
societe anonyme organized and existing under the laws of France.
"Aries Acquisition" means the purchase by Acquirer of all of
the outstanding capital stock of Aries.
"Aries Acquisition Agreement" means the agreement governing
all of the material terms and conditions of the Aries Acquisition to be entered
into by and between Aries and the Acquirer.
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., in its capacity as
sole arranger and book manager for the Facilities.
"Asset Sale" means, with respect to any Person, the sale,
lease, license, transfer, assignment or other disposition of all or any portion
of its business, assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, whether in one or a series of transactions, other than
(a) inventory sold in the ordinary course of business upon customary credit
terms, (b) only in the case of a European Restricted Subsidiary, the sale of
accounts receivable in connection with the factoring of accounts receivable in
the ordinary course of such European Subsidiary's business on customary terms
and conditions and otherwise allowed pursuant hereto and (c) sales of scrap or
obsolete material or equipment which are not material in the aggregate.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A or such other form
acceptable to the Administrative Agent and the Company.
"Assignment and Release Agreement" has the meaning specified
in the recitals to this Agreement.
"Assumption Agreement" means an assumption agreement entered
into by a Lender or an Eligible Assignee, and accepted by the Administrative
Agent, in form acceptable to the Administrative Agent.
"BA Equivalent Loan" has the meaning specified in Section
2.5(c).
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"BA Interest Period" means, relative to any Bankers'
Acceptance or BA Equivalent Loan, the period beginning on (and including) the
date on which such Bankers' Acceptance is accepted or continued or such BA
Equivalent Loan is made or continued to (but excluding) the date which is 30, 60
or 90 days thereafter, as selected by the applicable Canadian Borrower.
"BA Rate" means the rate per annum determined as being the
arithmetic average (rounded upwards, if necessary, to the nearest .01%) of the
rates quoted for one month bankers' acceptances as appear on the Reuters Screen
CDOR (Certificate of Deposit Offered Rate) page, as determined as at 10:00 a.m.
(Toronto time) on the relevant Business Day (for non-Business Days, and if no
CDOR rate is available for a given Business Day, the CDOR rate for the
immediately previous Business Day for which a CDOR rate is available shall be
used).
"BA Rate Loan" means any Bankers' Acceptance or BA Equivalent
Loan bearing interest at the BA Rate.
"Bankers' Acceptance" means a non-interest bearing ▇▇▇▇ of
exchange in a form satisfactory to the Administrative Agent, denominated in
Canadian Dollars, drawn and endorsed by a Canadian Borrower and presented to
each Canadian Lender for acceptance pursuant to this Agreement and includes a
depository ▇▇▇▇ under the Depository Bills and Notes Act (Canada) and a ▇▇▇▇ of
exchange under the Bills of Exchange Act (Canada).
"Bankers' Acceptance Obligations" means the aggregate face or
principal amount of all BA Equivalent Loans, unmatured Bankers' Acceptances and
all Reimbursement Obligations owing in respect of Bankers' Acceptances. For
purposes of determining the amount of Bankers' Acceptance Obligations (or any
component thereof) in respect of any such Obligation that is denominated in an
Alternate Currency, such amount shall equal the Dollar Equivalent of the amount
of such Alternate Currency at the time of determination thereof.
"Base Rate" means, (a) with respect to all Loans denominated
in Dollars, for any period, a fluctuating interest rate per annum as shall be in
effect from time to time, which rate per annum shall be equal at all times to
the highest of:
(i) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(ii) the sum (adjusted to the nearest 0.25% or, if there is
no nearest 0.25%, to the next higher 0.25%) of (A) 0.5% per annum plus
(B) the rate per annum obtained by dividing (I) the latest three-week
moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (II) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Federal Reserve Board
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time deposits
in the United States, plus (C) the average during such three-week
period of the maximum annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by Citibank
to the Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits in the United States; and
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(iii) the sum of (A) 0.5% per annum plus (B) the Federal
Funds Rate; and
(b) with respect to all Canadian Loans, the higher of:
(i) the rate determined by the Administrative Agent as the
rate displayed at or about 10:30 a.m. (Toronto time) on display page
CAPRIME of the Reuters Screen as the prime rate for Canadian Dollar
loans by Canadian banks to borrowers in Canada; provided, however,
that, if for any reason there is no such rate displayed on the Reuters
Screen on such day or if the basis of calculation of such rate is
changed after the date hereof and in the reasonable judgment of the
Administrative Agent it ceases to reflect each Canadian Lender's cost
of funding to the same extent as the date hereof, then such rate shall
be the per annum floating rate of interest (commercially known as the
"prime rate") established from time to time by three Canadian banks
selected by the Administrative Agent as the prime rate they will use
to determine the rates of interest on Canadian Dollar loans; and
(ii) the sum of (A) BA Rate plus (B) 0.75% per annum.
"Base Rate Loan" means any Loan during any period in which it
bears interest based on the Base - Rate.
"Borrowers" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means a borrowing consisting of Loans made on the
same day to the same Borrower by the Lenders in the same currency ratably
according to their respective Commitments. A Borrowing may be a Revolving Credit
Borrowing or a Term Loan Borrowing.
"Borrowing Subsidiaries" has the meaning specified in the
preamble to this Agreement.
"Business Day" means (a) for all purposes other than as
covered by clauses (b) and (c) below, a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York, are authorized or
required by law to close, and, if the applicable Business Day relates to a
Canadian Revolving Credit Outstanding, a day other than a Saturday, Sunday or
other day on which commercial banks in Toronto, Canada, are authorized or
required by law to close, (b) with respect to all notices (except with respect
to general matters not relating directly to funding) and determinations in
connection with, and payments of principal and interest on, Eurocurrency Loans,
any day which is a Business Day described in clause (a) above and which is also
a day for trading by and between banks in deposits of the Applicable Currency
for such Loans in the interbank eurocurrency market and (c) with respect to any
Loan denominated in Euros, any such day which is (i) as to payments or purchases
of Euros, a TARGET Business Day and (ii) for all other purposes, including the
giving and receiving of notices, a TARGET Business Day on which banks are
generally open for business in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and in any
other principal financial center as the Administrative Agent may from time to
time determine for this purpose. For purposes of this Agreement, a "TARGET
Business Day" is a day when the Trans-European Automated Real-time Gross
Settlement Express Transfer System, or any successor thereto, is scheduled to be
open for business.
"Canadian Borrowers" means any Borrower that is a Canadian
Subsidiary.
"Canadian Collateral Documents" means the amended and restated
Pledge Agreements (as defined in the Existing Credit Agreement), any pledge
agreement executed by a Canadian Borrower pursuant to which the Stock of a
Canadian Subsidiary is pledged in favor of the Collateral Agent, the amended and
restated Guarantor Security Agreements (as defined in the Existing Credit
Agreement), and the Canadian Subsidiary Security Acknowledgement, Confirmation
and Amendment Agreements, each as executed and delivered by a Guarantor that is
a Canadian Borrower or a Canadian Subsidiary.
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"Canadian Dollar" and "CAD" each mean the lawful currency of
Canada.
"Canadian Lending Office" means, with respect to any Canadian
Lender, the office of such Lender specified as its "Canadian Lending Office"
opposite its name on Schedule II or on the Assignment and Acceptance by which it
became a Canadian Lender or such other office of such Lender as such Lender may
from time to time specify to the Borrowers and the Administrative Agent.
"Canadian Lender" means any Lender which, whether directly or
through an Affiliate of such Lender, can make Canadian Loans or extend other
Canadian Revolving Credit Outstandings hereunder free of withholding taxes of
Canada and that is designated from time to time by the Administrative Agent and
the Company, with the consent of such Lender, as a Canadian Lender.
"Canadian Loan" means any Loan denominated in Canadian Dollars
to a Canadian Borrower.
"Canadian Ratable Portion" means, in respect of Canadian
Revolving Credit Outstandings and any Canadian Lender, the percentage obtained
by dividing (a) such Canadian Lender's Revolving Credit Commitment at such time
by (b) the aggregate amount of all Revolving Credit Commitments of the Canadian
Lenders at such time.
"Canadian Revolving Credit Outstandings" means the Revolving
Credit Outstandings owing by the Canadian Borrowers to the Canadian Lenders.
"Canadian Subsidiary" means any Subsidiary of the Company
organized under the laws of Canada or any Province thereof.
"Canadian Subsidiary Release Date" shall mean the date on
which each of the following conditions is satisfied, as determined by the
Administrative Agent: (a) no Default or Event of Default has occurred and is
continuing; (b) the holders of the Senior Subordinated Notes shall have agreed
to release on such date all Guaranty Obligations of any of the Canadian
Subsidiaries in respect of the Senior Subordinated Debt Documents; (c) there
shall not exist any other Guaranty Obligations of any Canadian Subsidiary with
respect to any obligation or liability of the Company or any Domestic
Subsidiary, other than the Secured Obligations; (d) and the documentation
providing for the terms and conditions of each of the agreements described in
the foregoing clauses (b) and (c) shall be reasonably satisfactory to, and
delivered to, the Administrative Agent and (e) such date is on or prior to
February 1, 2001.
"Canadian Subsidiary Security Acknowledgement, Confirmation
and Amendment Agreement" means any security acknowledgement, confirmation and
amendment agreement in form and substance acceptable to the Administrative
Agent, dated as of the Effective Date and executed and delivered by a Canadian
Subsidiary.
"Capital Expenditures" means, with respect to any Person for
any period, the aggregate of amounts that would be reflected as a capital asset
on a consolidated balance sheet of such Person and its Subsidiaries prepared in
conformity with GAAP, excluding interest capitalized during construction.
"Capital Lease" means, with respect to any Person, any lease
of property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
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"Cash Collateral Account" has the meaning specified in the
Pledge and Security Agreement.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States government or any agency thereof, (b)
certificates of deposit, eurodollar time deposits, overnight bank deposits and
bankers' acceptances of any Lender or any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations) which, at the time of acquisition, are rated at least "A-1" by
Standard & Poor's Rating Services ("S&P") or "P-1" by ▇▇▇▇▇'▇ Investors
Services, Inc. ("Moody's"), (c) commercial paper of an issuer rated at least
"A-1" by S&P or "P-1" by Moody's, and (d) shares of any money market fund that
(i) has at least 95% of its assets invested continuously in the types of
investments referred to in clauses (a) through (c) above, (ii) has net assets of
not less than $500,000,000 and (iii) is rated at least "A-1" by S&P or "P-1" by
Moody's; provided, however, that the maturities of all obligations of the type
specified in clauses (a) through (c) above shall not exceed 180 days.
"Change of Control" means:
(a) prior to a primary sale or sales of shares of Stock of the
Company resulting in the sale of more than 50% of each class of
outstanding Stock of the Company pursuant to any one or more public
offerings thereof (a "Majority IPO"), (i) Permitted Holders shall cease
to control, directly or indirectly, in each case free and clear of all
Liens, at least 35% (on a fully diluted basis) of the issued and
outstanding shares of Voting Stock of the Company and have the right
and authority to appoint, designate or otherwise elect at least 51% of
the members of the Board of Directors of the Company or (ii) other than
the Permitted Holders, any Person, or two or more Persons acting in
concert, acquire or own beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of an amount of the outstanding shares
of Voting Stock of the Company on a fully diluted basis which is equal
to or greater than the amount owned by the Permitted Holders;
(b) after a Majority IPO, (i) Permitted Holders shall cease to
control, directly or indirectly, in each case free and clear of all
Liens, at least 20% (on a fully diluted basis) of the issued and
outstanding shares of Voting Stock of the Company and have the right
and authority to appoint, designate or otherwise elect at least 20% of
the members of the Board of Directors of the Company or (ii) any
Person, or two or more Persons acting in concert, acquire or own
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of an amount of the outstanding shares of Voting Stock of the
Company on a fully diluted basis which is equal to or greater than the
amount owned by the Permitted Holders; or
(c) after the first public offering of Stock of the Company,
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders of
the Company was approved by a majority vote of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office; or
(d) any "Change of Control" as defined in the Senior
Subordinated Note Indentures.
"Citibank" means Citibank, N.A., a national banking
association.
"Citibank Canada" means Citibank Canada, a Canadian chartered
bank.
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"Citicorp" has the meaning specified in the preamble.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Cofimeta" means Cofimeta, S.A., a societe anonyme organized
and existing under the laws of France.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Documents.
"Collateral Agent" has the meaning specified in the preamble
to this Agreement.
"Collateral Documents" means each Pledge and Security
Agreement, the Foreign Collateral Documents, the Mortgage Documents and any
other document executed and delivered by a Loan Party granting a Lien on any of
its property to secure payment of the Secured Obligations.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, and Term Loan Commitment, if any, and
"Commitments" means the aggregate Revolving Credit Commitments and Term Loan
Commitments of all Lenders.
"Consent and Agreement to the Mexican Intercreditor Agreement"
means, the Consent and Agreement to the Mexican Intercreditor Agreement, dated
as of the Effective Date and executed and delivered by each of the Borrowers.
"Consolidated Current Assets" means, with respect to any
Person at any date, the total consolidated current assets (other than cash and
Cash Equivalents) of such Person and its Subsidiaries at such date, determined
in conformity with GAAP.
"Consolidated Current Liabilities" means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date which should, in accordance with GAAP, be classified as current liabilities
on a consolidated balance sheet of such Person and its Subsidiaries prepared in
conformity with GAAP, but excluding, in the case of the Borrowers the sum of (a)
the principal amount of any current portion of long-term Total Debt and (b)
(without duplication of clause (a) above) the then outstanding principal amount
of the Loans.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income: (i) any net income
(or loss) of any Person if such Person is not a Restricted Subsidiary, except
that subject to the exclusion contained in clause (iv) below, the Company's
equity in the net income of any such Person for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to a Restricted Subsidiary, to the
limitations contained in clause (ii) below); (ii) any net income of any
Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that (A) subject to the exclusion contained in clause (iii)
below, the Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash that could have been distributed by such Restricted
Subsidiary consistent with such restriction during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause) and (B) the Company's
equity in a net loss of any such Restricted Subsidiary for such period shall be
included in
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determining such Consolidated Net Income; (iii) any gain (or loss) realized upon
the sale or other disposition of any assets of the Company or its consolidated
Subsidiaries (including pursuant to any sale-and-leaseback arrangement) which is
not sold or otherwise disposed of in the ordinary course of business and any
gain (or loss) realized upon the sale or other disposition of any Stock of any
Person; (iv) extraordinary or nonrecurring gains or non-cash losses; and (v) the
cumulative effect of a change in accounting principles.
"Constituent Documents" means, with respect to any Person, (a)
the articles/certificate of incorporation (or the equivalent organizational
documents) of such Person, (b) the by-laws (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if any)
and the designation, amount and/or relative rights, limitations and preferences
of any class or series of such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
"Currency" means Dollars or any Alternate Currency.
"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen
and other liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(c) deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money) and surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on the
use of real property which do not materially detract from the value of
such real property or interfere with the ordinary conduct of the
business conducted and proposed to be conducted at such real property;
(e) encumbrances arising under leases or subleases of real
property which do not in the aggregate materially detract from the
value of such real property or interfere with the ordinary conduct of
the business conducted and proposed to be conducted at such real
property; and
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(f) financing statements of a lessor's rights in and to
personal property leased to such Person in the ordinary course of such
Person's business.
"Danish Holding Company" means Oxford Automotive Europe, ApS a
Subsidiary of the Company and wholly owned directly by a Guarantor, which
Subsidiary is organized under the laws of Denmark and formed to, among other
purposes, own 100% of the Stock, free and clear of any Liens other than Liens in
favor of the Administrative Agent, of the French Holding Company.
"Debt Issuance" means the incurrence of Indebtedness of the
type specified in clause (a) and (b) of the definition of "Indebtedness" by the
Company or any of its Restricted Subsidiaries.
"Default" means any event, act or condition which with the
passing of time or the giving of notice or both would become an Event of
Default.
"Discount Rate" means with respect to each Bankers' Acceptance
issued pursuant to this Agreement with the same maturity date, the rate
determined by Citibank Canada as being the discount rate, calculated on the
basis of a year of 365 or 366 days, as the case may be, of Citibank Canada
established in accordance with its normal practices at or about 10:00 a.m.
Toronto time on the date of issue of such Bankers' Acceptances, for bankers'
acceptances having a comparable face value and an identical maturity date to the
face value and maturity date of the such Bankers' Acceptance.
"Discounted Proceeds" means in respect of any Bankers'
Acceptance to be accepted and purchased by a Canadian Lender hereunder on any
day, an amount (rounded to the nearest whole Canadian cent, and with one-half of
one cent being rounded up) calculated on such day by multiplying (i) the face
amount of such Bankers' Acceptance by (ii) the price, where the price is
determined by dividing one by the sum of one plus the product of (A) the
Discount Rate (expressed as a decimal) and (B) a fraction, the numerator of
which is the number of days in the term of such Bankers' Acceptance and the
denominator of which is 365 or 366, as the case may be, with such product being
rounded up or down to the fifth decimal place and .000005 being rounded up.
"Disqualified Stock" means with respect to any Person, any
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness of such Person, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to one year after the later of the Scheduled Termination Date and the Term
Loan Maturity Date.
"Documentation Agent" has the meaning specified in the
preamble to this Agreement.
"Dollar Equivalent" means with respect to any Alternate
Currency at the time of determination thereof, the equivalent of such currency
in Dollars determined by using the rate of exchange quoted by Citibank in New
York, New York at 11:00 a.m. (New York time) on the date of determination to
prime banks in New York for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternate Currency.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II or on the Assignment and Acceptance by which it became a
Lender or such other office of such Lender as such Lender may from time to time
specify to the Borrowers and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Borrowers
organized under the laws of any state of the United States of America or the
District of Columbia.
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"EBITDA" shall mean, for any period, the Consolidated Net
Income for such period plus, without duplication, all amounts deducted in
determining such Consolidated Net Income on account of (a) Interest Expense, (b)
income tax expense (including Michigan Single Business Tax expense), (c)
depreciation and amortization expense, and (d) all other non-cash items reducing
Consolidated Net Income (other than items that will require cash payments and
for which an accrual or reserve is, or is required under GAAP to be, made,
except as otherwise consented to by the Administrative Agent), and minus all non
cash items increasing Consolidated Net Income, in each case for such period, all
as determined for the Company and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Effective Date" means the first date on which all of the
conditions precedent set forth in Article III are satisfied.
"Eligible Assignee" means (a) with respect to an assignment by
any Non-Canadian Lender, (i) a Lender or any Affiliate or Approved Fund of such
Lender; (ii) a commercial bank having total assets in excess of $5,000,000,000;
(iii) a finance company, insurance company, other financial institution or fund
reasonably acceptable to the Administrative Agent, which is regularly engaged in
making, purchasing or investing in loans including, with respect to any proposed
assignment of all or a portion of a Lender's Revolving Credit Commitment,
revolving loans, and having a net worth, determined in accordance with GAAP, in
excess of $250,000,000 or, to the extent net worth is less than such amount, a
finance company, insurance company, other financial institution or fund,
reasonably acceptable to the Administrative Agent and the Borrowers; or (iv) a
savings and loan association or savings bank organized under the laws of the
United States or any State thereof which has a net worth, determined in
accordance with GAAP, in excess of $250,000,000 and (b) with respect to an
assignment by any Canadian Lender, a Canadian Lender which is also an entity
described in the foregoing clause (a).
"Environmental Laws" means all applicable Requirements of Law
now or hereafter in effect, as amended or supplemented from time to time,
relating to pollution or the regulation and protection of human health, safety,
the environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. ss.
9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C.
ss. 180 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 U.S.C. ss. 136 et seq.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C. ss. 6901 et seq.); the Toxic Substance Control Act, as
amended (42 U.S.C. ss. 7401 et seq.); the Clean Air Act, as amended (42 U.S.C.
ss. 740 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C.
ss. 1251 et seq.); the Occupational Safety and Health Act, as amended (29 U.S.C.
ss. 651 et seq.); the Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f et
seq.); and their state and local counterparts or equivalents and any transfer of
ownership notification or approval statute, including the Industrial Site
Recovery Act (N.J. Stat. ▇▇▇. ss. 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including any thereof arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, which relate to any environmental, health or safety
condition or a Release or threatened Release, and result from the past, present
or future operations of, or ownership of property by, such Person or any of its
Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
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"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414 (b), (c),
(m) or (o) of the Code.
"Euro" means the single currency of the European Union.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from time to
time.
"Eurocurrency Base Rate" means, for any Interest Period for
each Eurocurrency Rate Loan in any Currency comprising part of the same
Borrowing, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of one percent) appearing on the Screen for such Currency as the London
Interbank Offered Rate for deposits in such Currency at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior to
the first day of the Interest Period for such Loan; provided, however, that if
such rate does not appear on such Screen (or, if such Screen shall cease to be
publicly available or if the information contained on such Screen, in the
Administrative Agent's reasonable judgment, shall cease accurately to reflect
such London Interbank Offered Rate, as reported by any publicly available source
of similar market data selected by the Administrative Agent that, in the
Administrative Agent's reasonable judgment, accurately reflects such London
Interbank Offered Rate), the "Eurocurrency Rate" for such Interest Period for
such Eurocurrency Rate Loan in such Currency shall be (a) the rates per annum at
which deposits in such Currency are offered by the Administrative Agent to prime
banks in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days before the first day of the Interest Period for such Loan in
an amount substantially equal to the Eurocurrency Rate Loan comprising part of
such Borrowing to be outstanding during such Interest Period; provided, further,
that in the case of each Lender that is subject to the jurisdiction of the
Financial Services Authority of England (or any successor) the "FSA"), the
Eurocurrency Rate shall be increased for each Interest Period by the associated
cost rate (if any) applicable to Loans denominated for such Interest Period in
the lawful currency of England or a foreign currency pursuant to applicable
regulations of the FSA. The Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Loan comprising part of the same Borrowing shall be determined
by the Administrative Agent on the basis of the applicable Screen or the
applicable rates offered by the Administrative Agent, as the case may be, two
Business Days before the first day of such Interest Period.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule II or on the Assignment and Acceptance by which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from time to time
specify to the Borrowers and the Administrative Agent.
"Eurocurrency Rate" means, with respect to any Interest Period
for any Eurocurrency Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurocurrency Base Rate by (b) a percentage
equal to 100% minus the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities which includes deposits by
reference to which the Eurocurrency Rate is determined) having a term equal to
such Interest Period.
"Eurocurrency Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurocurrency Rate.
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"European Restricted Subsidiary" means any Restricted
Subsidiary of the Company organized under the laws of a country (or any province
thereof) which is a member state of the European Union.
"Event of Default" has the meaning specified in Section 7.1.
"Excess Cash Flow" means, for the Company and its Restricted
Subsidiaries for any period, EBITDA of the Company and its Restricted
Subsidiaries for such period plus (a) the excess, if any, of the Working Capital
of the Company and its Restricted Subsidiaries at the beginning of such period
over the Working Capital of the Borrowers at the end of such period minus (b)
the sum of (without duplication) (i) scheduled and mandatory cash principal
payments on the Revolving Credit Outstandings and Term Loans during such period
and optional cash principal payments on the Loans during such period (but, in
the case of Revolving Credit Outstandings, only to the extent that the Revolving
Credit Commitments are permanently reduced by the amount of such payments), (ii)
scheduled cash principal payments made by the Company or any of its Restricted
Subsidiaries during such period on other Indebtedness to the extent such other
Indebtedness and payments are permitted by this Agreement, (iii) scheduled
payments made by the Company or any of its Restricted Subsidiaries on Capital
Lease Obligations to the extent such Capital Lease Obligations and payments are
permitted by this Agreement, (iv) Capital Expenditures made by the Company or
any of its Subsidiaries during such period to the extent permitted by this
Agreement, (v) payments made in respect of Investments permitted pursuant to
Section 6.9(b),(c) or (d), and (vi) the excess, if any, of the Working Capital
of the Company and its Restricted Subsidiaries at the end of such period over
the Working Capital of the Company and its Restricted Subsidiaries at the
beginning of such period.
"Existing Agent" has the meaning specified in the recitals to
this Agreement.
"Existing Canadian Agent" has the meaning specified in the
recitals to this Agreement.
"Existing Credit Agreement" has the meaning specified in the
recitals to this Agreement.
"Existing Lenders" has the meaning specified in the recitals
to this Agreement.
"Existing Revolving Credit Loans" means the Revolving Credit
Advances (as defined in the Existing Credit Agreement) owing to the Existing
Lenders on the Effective Date.
"Facilities" means (a) the Term Loan Facility and (b) the
Revolving Credit Facility.
"Facilities Increase" has the meaning specified in Section
2.20.
"Facilities Increase Effective Date" has the meaning specified
in Section 2.20.
"Fair Market Value" means (a) with respect to any asset or
group of assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the Company, or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal, and (b) with respect to any
marketable Security at any date, the closing sale price of such Security on the
Business Day next preceding such date, as appearing in any published list of any
national securities exchange or the Nasdaq Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing which regularly deals in securities of such type selected by
the Administrative Agent.
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"FCC" has the meaning specified in Section 6.9(e)(ii).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fee Letter" means the letter dated as of June 9, 2000
addressed to the Company from Citicorp and the Arranger and accepted by the
Company on June 9, 2000 with respect to certain fees to be paid from time to
time to Citicorp and the Arranger.
"Financial Statements" means the financial statements of the
Borrowers and its Subsidiaries delivered in accordance with Sections 4.6 and
5.4.
"Fiscal Quarter" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on March
31.
"Foreign Collateral Documents" means (i) each pledge agreement
pursuant to which all or a portion of the Stock of a Foreign Subsidiary is being
pledged by a Loan Party to the Collateral Agent for the benefit of the Secured
Parties as security for the Obligations, executed by such Loan Party and the
Collateral Agent and (ii) the Canadian Collateral Documents.
"Foreign Subsidiary" means any Subsidiary incorporated or
formed in any jurisdiction other than any State of the United States of America.
"French Holding Company" means Oxford Automotive France, SAS,
a societe par actions simplifiee organized and existing under the laws of
France.
"GAAP" means GAAP in the United States of America as in effect
from time to time set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
the statements and pronouncements of the Financial Accounting Standards Board,
or in such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Granting Bank" has the meaning specified in Section 9.2(e).
"Guarantor" means each Borrower (in its capacity as such) and
each Subsidiary Guarantor.
"Guaranty" means the guaranty, in substantially the form of
Exhibit G, executed by the Company and each Subsidiary Guarantor.
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"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, or that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof including, (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor, or
to provide funds for the payment or discharge of such Indebtedness (whether in
the form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another Person, (iii) to make take-or-pay or similar
payments, if required, regardless of non-performance by any other party or
parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, or (v) to supply funds to or in any other manner
invest in such other Person (including to pay for property or services
irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any Guaranty
Obligation shall be equal to the amount of the Indebtedness so guaranteed or
otherwise supported.
"Hazardous Materials" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Hedging Contracts" means all Interest Rate Contracts, foreign exchange
contracts, currency swap or option agreements, forward contracts, commodity
swap, purchase or option agreements, other commodity price hedging arrangements,
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rates, currency values or
commodity prices.
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or which
bear interest, (c) all reimbursement and all obligations with respect to letters
of credit, bankers' acceptances, surety bonds and performance bonds, whether or
not matured, (d) all indebtedness for the deferred purchase price of property or
services , other than trade payables incurred in the ordinary course of business
which are not overdue, (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (i) all payments that such Person
would have to make in the event of an early termination on the date Indebtedness
of such Person is being determined in respect of Hedging Contracts of such
Person and (j) all Indebtedness of the type referred to above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"Indemnitees" has the meaning specified in Section 9.4.
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"Interbank Rate" means, for any period, (i) in respect of Obligations
denominated in Dollars, the Federal Funds Rate in effect during such period, and
(ii) in respect of Obligations denominated in Alternative Currencies, the
Administrative Agent's cost of funds for such period.
"Interest Coverage Ratio" means, with respect to any Person for any
period, the ratio of EBITDA of such Person for such period to Interest Expense
of such Person for such period.
"Interest Expense" shall mean, for any period, the total interest
expense of the Company and its consolidated Restricted Subsidiaries, plus, to
the extent not included in such total interest expense, and to the extent
incurred by the Company or its Restricted Subsidiaries, (i) interest expense
attributable to Capital Lease obligations, (ii) amortization of debt discount,
(iii) capitalized interest, (iv) non-cash interest expense, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs associated with Hedging Contracts
(including amortization of fees), (vii) Preferred Stock dividends in respect of
all Preferred Stock held by Persons other than the Company or a Restricted
Subsidiary, and (viii) interest actually paid by the Company or any Restricted
Subsidiary on any Indebtedness of any other Person. Notwithstanding the
foregoing, net interest expense attributable to deferred reimbursement tooling
indebtedness, i.e., only that portion of Tooling Indebtedness to be paid by the
purchaser of the related Tooling in the piece price over the term of the related
tooling contract consistent with current practice, shall not be included in
Interest Expense.
"Interest Period" means, in the case of any Eurocurrency Rate Loan, (a)
initially, the period commencing on the date such Loan is made or on the date of
conversion of a Base Rate Loan to such Eurocurrency Rate Loan and ending one,
two, three or six months thereafter, as selected by the Borrowers in the Notice
of Borrowing or Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.2 or 2.12, and (b) thereafter, if such Loan is
continued, in whole or in part, as a Eurocurrency Rate Loan pursuant to Section
2.12, a period commencing on the last day of the immediately preceding Interest
Period therefor and ending one, two, three or six months thereafter, as selected
by the Borrowers in the Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.12; provided, however, that all of
the foregoing provisions relating to Interest Periods in respect of Eurocurrency
Rate Loans are subject to the following:
(i) if any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would be
to extend such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
(iii) the Borrowers may not select any Interest Period that
ends after the date of a scheduled principal payment on the Loans as set
forth in Article II unless, after giving effect to such selection, the
aggregate unpaid principal amount of the Loans for which Interest Periods
end after such scheduled principal payment shall be equal to or less than
the principal amount to which the Loans are required to be reduced after
such scheduled principal payment is made;
(iv) the Borrowers may not select any Interest Period in
respect of Loans having an aggregate principal amount of less than
$5,000,000; and
(v) there shall be outstanding at any one time no more than
ten (10) Interest Periods in the aggregate.
"Interest Rate Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
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"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by that Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person,
and (c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable and
similar items made or incurred in the ordinary course of business as presently
conducted), or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"Issuer" means each Lender or Affiliate of a Lender that (a) is listed
on the signature pages hereof as an "Issuer" or (b) hereafter becomes an Issuer
with the approval of the Administrative Agent and the Borrowers by agreeing
pursuant to an agreement with and in form and substance satisfactory to the
Administrative Agent and the Borrowers to be bound by the terms hereof
applicable to Issuers.
"Leases" means, with respect to any Person, all of those leasehold
estates in real property of such Person, as lessee, as such may be amended,
supplemented or otherwise modified from time to time.
"Lender" means each financial institution or other entity that (a) is
listed on the signature pages hereof as a "Lender" or (b) from time to time
becomes a party hereto by execution of an Assignment and Acceptance or an
Assumption Agreement.
"Letter of Credit" means any letter of credit issued pursuant to
Section 2.4.
"Letter of Credit Obligations" means, at any time, the aggregate of all
liabilities at such time of the Borrowers to all Issuers with respect to Letters
of Credit, whether or not any such liability is contingent, and includes the sum
of (a) the Reimbursement Obligations owing in respect of Letters of Credit at
such time and (b) the Letter of Credit Undrawn Amounts at such time. For
purposes of determining the amount of Letter of Credit Obligations (or any
component thereof) in respect of any Letter of Credit that is denominated in an
Alternate Currency, such amount shall equal the Dollar Equivalent of the amount
of such Alternate Currency at the time of determination thereof.
"Letter of Credit Reimbursement Agreement" has the meaning specified in
Section 2.4(e).
"Letter of Credit Request" has the meaning specified in Section 2.4(c).
"Letter of Credit Undrawn Amounts" means, at any time, the aggregate
undrawn face amount of all Letters of Credit outstanding at such time.
"Leverage Ratio" means, with respect to any Person for any period, the
ratio of (a) Total Debt of such Person as of the last day of such period to (b)
EBITDA for such Person for such period.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease, any financing lease having substantially the same economic effect as any
of the foregoing, in the case of a Security, any purchase option, call or
similar right with respect to such Security, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction naming the owner of the asset to which such Lien relates as debtor.
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"Loan" means any loan made by any Lender pursuant to this Agreement
including, any Revolving Loan, Term Loan or Swing Loan.
"Loan Documents" means, collectively, this Agreement, the Notes (if
any), the Guaranties, the Fee Letter, each Letter of Credit Reimbursement
Agreement, each Hedging Contract to which a Loan Party and a Lender or an
Affiliate of a Lender is a party, each agreement pursuant to which a Lender or
an Affiliate of a Lender provides cash management services to a Loan Party, the
Collateral Documents, the Master Assignment Agreement, the Assignment and
Release Agreement, the Consent and Agreement to the Mexican Intercreditor
Agreement, and each certificate, agreement or document executed by a Loan Party
and delivered to the Administrative Agent, the Collateral Agent or any Lender in
connection with or pursuant to any of the foregoing.
"Loan Party" means each of the Borrowers, each Subsidiary Guarantor and
each other Subsidiary of the Company that executes and delivers a Guaranty or a
Collateral Document.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corporation, a Michigan corporation.
"▇▇▇▇▇▇▇ Preferred Stock" means all existing preferred stock issued by
▇▇▇▇▇▇▇, including the Series B Preferred Stock and Series A Preferred Stock, in
the aggregate amount of $40,451,000.
"▇▇▇▇▇▇▇ Preferred Stock Documents" means all stock certificates,
agreements and other documents relating to the terms of the Preferred Stock or
otherwise relating to the Preferred Stock.
"Master Assignment Agreement" has the meaning specified in the recitals
to this Agreement.
"Material Adverse Change" means a material adverse change in any of (a)
the business, condition (financial or otherwise), operations, performance,
properties or prospects of each Loan Party, individually, or the Company and its
Subsidiaries, taken as a whole, (b) the ability of the Loan Parties to perform
their respective obligations under the Loan Documents or (c) the ability of the
Administrative Agent, Collateral Agent or the Lenders to enforce the Loan
Documents.
"Material Adverse Effect" means an effect that results in or causes, or
could reasonably be expected to result in or cause, a Material Adverse Change.
"Material Subsidiary" means any wholly-owned Restricted Subsidiary of
the Company owning at least 5% of Total Assets generating at least 5% of
Consolidated Net Income of the Company and its Subsidiaries on a consolidated
basis.
"Mexican Facility" means the $75,000,000 Cross-Border Asset Use
Facility of the Mexican Subsidiaries pursuant to the Mexican Facility Documents.
"Mexican Facility Documents" means the agreements and documents
described on Schedule 4.25.
"Mexican Facility Guaranty" means the Guaranty dated March 31, 1999
executed by the Company in favor of the Mexican Trust guaranteeing the lease
payments of the Mexican Subsidiaries under the Asset Use Agreement (as defined
on Schedule 4.25).
"Mexican Facility Obligations" means all present and future obligations
and liabilities of any kind, direct, contingent or otherwise, pursuant to the
Mexican Facility Documents or otherwise under the Mexican Facility.
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"Mexican Facility Tranche A Guaranty" means that portion of the Mexican
Facility Guaranty allocable to the Mexican Facility Tranche A Loans.
"Mexican Facility Tranche A Guaranty Obligations" means all amounts,
obligations, covenants and duties owing by the Company to any Mexican Facility
Tranche A Lender of every type and description, present or future, arising under
the Mexican Facility Tranche A Guaranty, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired and includes all fees, interest, charges, expenses, fees, attorneys'
fees and disbursements and other sums chargeable to the Company under the
Mexican Facility Tranche A Guaranty.
"Mexican Facility Tranche A Lenders" means the lenders of the Mexican
Facility Tranche A Loans.
"Mexican Facility Tranche A Loans" means the Tranche A Loans made or to
be made under, and as defined in, the Mexican Facility Documents in an aggregate
amount not to exceed $63,000,000.
"Mexican Intercreditor Agreement" means the amended and restated
intercreditor agreement dated as of the Effective Date in form and substance
satisfactory to the Administrative Agent among the Administrative Agent, the
Collateral Agent, the Bank of Montreal and all parties thereto, as amended or
modified from time to time in accordance with the terms thereof.
"Mexican Manufacturing Facility" means the ▇▇▇▇▇ ▇▇▇▇▇▇ manufacturing
facility of the Company to be located in Mexico as described by the Company to
the Administrative Agent prior to the Effective Date.
"Mexican Subsidiaries" means Subsidiaries of the Company described on
Schedule 4.4, which are the only Subsidiaries of the Company located in Mexico
or organized or existing under the laws of Mexico or any political subdivision
thereof as of the Effective Date. The Mexican Subsidiaries shall be deemed
Restricted Subsidiaries.
"Mexican Trust" means Oxford Automotive Business Trust 1999-A, a
special purpose trust, and lessor under the Mexican Facility.
"Mexico" means the United Mexican States.
"Mortgage Documents" means the mortgages, deeds of trust and other real
estate security documents and each amendment thereto or assignment thereof made
or required herein to be made by the Company or any other Loan Party, as may be
amended from time to time.
"Multicurrency Loan" means a Revolving Loan made in an Alternate
Currency.
"Multicurrency Sublimit" means, (i) with respect to Canadian Revolving
Credit Outstandings, the maximum aggregate outstanding principal amount of such
Revolving Credit Outstandings, the Dollar Equivalent of which shall not exceed
$50,000,000 and (ii) with respect to Revolving Credit Outstandings denominated
in Euros, the maximum aggregate outstanding principal amount of such Revolving
Credit Outstandings, the Dollar Equivalent of which shall not exceed
$75,000,000.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company, any of its Subsidiaries or any ERISA
Affiliate has any obligation or liability, contingent or otherwise.
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"Net Cash Proceeds" means proceeds received by the Company or any of
its Restricted Subsidiaries after the Effective Date in cash or Cash Equivalents
from any (a) Asset Sale, net of (i) the reasonable cash costs of sale,
assignment or other disposition, (ii) taxes paid or payable as a result thereof
and (iii) any amount required to be paid or prepaid on Indebtedness (other than
the Obligations) secured by the assets subject to such Asset Sale; provided,
however, that the evidence of each of (i), (ii) and (iii) are provided to the
Administrative Agent in form and substance satisfactory to it; (b) Property Loss
Event; or (c) Debt Issuance permitted under clause (f) of Section 6.2, in each
case net of brokers' and advisors' fees and other costs incurred in connection
with such transaction; provided, however, that in the case of this clause (c)
evidence of such costs is provided to the Administrative Agent in form and
substance satisfactory to it.
"Non-Canadian Lender" means each Revolving Credit Lender other than a
Canadian Lender.
"Non-Funding Lender" has the meaning specified in Section 2.2(h).
"Non-U.S. Lender" means each Lender or Administrative Agent that is not
a United States person as defined in Section 7701(a)(30) of the Code.
"Note" means any Revolving Credit Note or Term Loan Note.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Conversion or Continuation" has the meaning specified in
Section 2.12.
"OASP I" means OASP, Inc., a Michigan corporation, and wholly owned
Subsidiary of the Company.
"OASP II" means OASP II, Inc., a Michigan corporation, and wholly owned
Subsidiary of the Company.
"Obligations" means the Loans, the Letter of Credit Obligations, the
Bankers' Acceptance Obligations and all other amounts, obligations, covenants
and duties owing by the Borrowers to the Administrative Agent, any Lender, any
Issuer, any Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of an extension of credit, opening or amendment
of a letter of credit or payment of any draft drawn thereunder, loan, bankers'
acceptance, guaranty, indemnification, foreign exchange or currency swap
transaction, interest rate hedging transaction or otherwise), present or future,
arising under this Agreement, any other Loan Document, any Hedging Contract, any
agreement for cash management services entered into in connection with this
Agreement or any other Loan Document, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money, and
includes all letter of credit, cash management and other fees, interest,
charges, expenses, fees, attorneys' fees and disbursements and other sums
chargeable to the Borrowers under this Agreement, any other Loan Document, any
Hedging Contract or any agreement for cash management services entered into in
connection with this Agreement or any other Loan Document and all obligations of
the Borrowers to cash collateralize Letter of Credit Obligations.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Permit" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
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"Permitted Acquisition" means each Acquisition permitted to be
consummated pursuant to Section 6.4.
"Permitted Disqualified Stock" has the meaning specified in Section
6.16.
"Permitted Holders" means (i) any of ▇▇▇▇▇▇ ▇▇▇▇▇▇, his spouse and any
of his lineal descendants and their respective spouses (collectively, the
"Isakow Family"), whether acting in their own name or as one or as a majority of
Persons having the power to exercise the voting rights attached to, or having
investment power over, shares held by others, (ii) any Person wholly owned and
controlled by any member of the Isakow Family, (iii) any trust solely for the
benefit of one or more members of the Isakow Family (whether or not any member
of the Isakow Family is a trustee of such trust) and (iv) the individuals that
are holders on the Effective Date of the Voting Stock of the Company.
"Permitted Liens" means the Liens permitted under clauses (a) through
(i) of Section 6.3.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"Pledge and Security Agreement" means an agreement, in substantially
the form of Exhibit H, executed by the Borrowers and each Subsidiary Guarantor.
"Pledged Notes" has the meaning specified in the Pledge and Security
Agreement.
"Pledged Stock" has the meaning specified in the Pledge and Security
Agreement.
"Preferred Stock" means all ▇▇▇▇▇▇▇ Preferred Stock and all other
preferred stock or similar Stock issued by the Company or any of its Restricted
Subsidiaries at any time.
"Pro Forma Basis" means, with respect to any determination for any
period, that such determination shall be made giving pro forma effect to each
Permitted Acquisition and Asset Sale of a Person, business or asset consummated
during such period, together with all transactions relating thereto consummated
during such period (including any incurrence, assumption, refinancing or
repayment of Indebtedness), as if such Permitted Acquisition, Asset Sale and
related transactions had been consummated on the first day of such period, in
each case (i) based on historical results accounted for in accordance with GAAP
and, to the extent applicable, reasonable assumptions that are specified in
reasonable detail in the relevant computation furnished to the Administrative
Agent pursuant to Section 5.4(b) or (c) and (ii) prepared in accordance with
Regulation S-X under the Securities Act of 1933, as amended or, if not in
accordance with Regulation S-X, accompanied by a certificate of the Company's
chief financial officer certifying that such determination (including all
related results and assumptions) has been made in a manner not inconsistent with
GAAP and has been approved in writing by the Company's Board of Directors (or
the audit committee thereof, if any).
"Prohibited Transaction" means any transaction involving any Title IV
Plan which is proscribed by Section 406 of ERISA or Section 4975 of the Code.
"Projections" means those financial projections dated June 13, 2000,
covering the fiscal years ending in 2001 through 2005, inclusive, delivered to
the Lenders by the Borrowers.
"Property Loss Event" means any loss of or damage to property of the
Company or any of its Restricted Subsidiaries that results in the receipt by
such Person of proceeds of insurance in excess of $1,000,000 or any taking of
property of the Company or any of its Restricted Subsidiaries that results in
the receipt by such Person of a compensation payment in respect thereof in
excess of $1,000,000.
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"Protective Advances" means all expenses, disbursements and advances
incurred by the Administrative Agent pursuant to the Loan Documents after the
occurrence and during the continuance of an Event of Default which the
Administrative Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof or to enhance the
likelihood or maximize the amount of repayment of the Obligations.
"Ratable Portion" or "ratably" means, with respect to any Lender, (a)
with respect to the Revolving Credit Facility, the percentage obtained by
dividing (i) the Revolving Credit Commitment of such Lender by (ii) the
aggregate Revolving Credit Commitments of all Lenders (or, at any time after the
Revolving Credit Termination Date, the percentage obtained by dividing the
aggregate outstanding principal balance of the Revolving Credit Outstandings
owing to such Lender by the aggregate outstanding principal balance of the
Revolving Credit Outstandings owing to all Lenders), and (b) with respect to the
Term Loan Facility, the percentage obtained by dividing (i) the Term Loan
Commitment of such Lender by (ii) the aggregate Term Loan Commitments of all
Lenders (or, at any time after the Effective Date, the percentage obtained by
dividing the principal amount of such Lender's Term Loans by the aggregate Term
Loans of all Lenders).
"Register" has the meaning specified in Section 9.2(c).
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of a Borrower to any Issuer with respect to amounts drawn
under Letters of Credit or to any Canadian Lender with respect to any unpaid
Bankers' Acceptance.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Company or any of its
Subsidiaries in connection therewith which are not initially applied to prepay
the Loans pursuant to Section 2.9 as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event" means any Asset Sale or Property Loss Event in
respect of which any of the Borrowers has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
Officer of a Borrower stating that no Default or Event of Default has occurred
and is continuing and that the Borrower (directly or indirectly through one of
its Subsidiaries) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale or Property Loss Event to acquire replacement
assets useful in its or one of its Subsidiaries' businesses or effect repairs in
the case of a Property Loss Event.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement assets useful in a Borrower's business.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earliest of (i) the date occurring 180 days after such Reinvestment
Event, (ii) the date five Business Days after the date on which a Borrower shall
have notified the Administrative Agent of such Borrower's determination not to
acquire replacement assets useful in the Borrower's or a Restricted Subsidiary's
business or effect repairs in the case of a Property Loss Event (or failure to
diligently pursue such repairs) with all or any portion of the relevant
Reinvestment Deferred Amount and (iii) during the continuance of an Event of
Default, the date specified in a written notice received by the Company from the
Administrative Agent.
"Related Documents" means the Aries Acquisition Agreement, and each
other document and instrument executed with respect to the Aries Acquisition.
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"Release" means, with respect to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration, in each case, of any Contaminant into the indoor or
outdoor environment or into or out of any property owned by such Person,
including the movement of Contaminants through or in the air, soil, surface
water, ground water or property.
"Remedial Action" means all actions required to (a) clean up, remove,
treat or in any other way address any Contaminant in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release so that a Contaminant does not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment or (c)
perform pre-remedial studies and investigations and post-remedial monitoring and
care.
"Reportable Event" means a reportable event as described in Section
4043(b) of ERISA including those events as to which the thirty (30) day notice
period is waived under Part 2615 of the regulations promulgated by the PBGC
under ERISA.
"Requirement of Law" means, with respect to any Person, the common law
and all federal, state, local and foreign laws, rules and regulations, orders,
judgments, decrees and other legal requirements or determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Requisite Lenders" means, collectively, Lenders having at least (a)
fifty-one percent (51%) of the aggregate outstanding amount of the Revolving
Credit Commitments or, after the Revolving Credit Termination Date, fifty-one
percent (51%) of the aggregate Revolving Credit Outstandings and (b) fifty-one
percent (51%) of the Term Loan Commitments and, after the Effective Date,
fifty-one percent (51%) of the principal amount of all Term Loans then
outstanding. A Non-Funding Lender shall not be included in the calculation of
"Requisite Lenders."
"Requisite Revolving Credit Lenders" means Revolving Credit Lenders
having at least fifty-one percent (51%) of the aggregate outstanding amount of
the Revolving Credit Commitments or, after the Revolving Credit Termination
Date, fifty-one percent (51%) of the aggregate Revolving Credit Outstandings. A
Non-Funding Lender shall not be included in the calculation of "Requisite
Revolving Credit Lenders."
"Requisite Term Loan Lenders" means Term Loan Lenders having at least
fifty-one percent (51%) of the Term Loan Commitments or, after the Effective
Date, fifty-one percent (51%) of the principal amount of all Term Loans then
outstanding.
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers of such Person, but in any event, with respect to
financial matters, the chief financial officer, treasurer or controller of such
Person.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any Stock or Stock Equivalents of the Company
or any of its Subsidiaries now or hereafter outstanding, except a dividend
payable solely in Stock or Stock Equivalents or a dividend or distribution
payable solely to the Borrowers and/or one or more Subsidiary Guarantors, (b)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalents of
the Company or any of its Subsidiaries now or hereafter outstanding other than
one payable solely to the Borrowers and/or one or more Subsidiary Guarantors,
and (c) any payment or prepayment of principal, premium (if any), interest, fees
(including fees to obtain any waiver or consent in connection with any Security)
or other charges on, or redemption, purchase, retirement, defeasance, sinking
fund or similar payment with respect to, any Indebtedness of the Company or any
of its Subsidiaries or any other Loan Party, including any such payment of, or
in respect of, the Mexican Facility Obligations or any action of a Loan Party
that has an effect which is the equivalent of such
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payment, other than any required redemptions, retirement, purchases, interest
payments or other payments, in each case to the extent permitted to be made by
the terms of such Indebtedness after giving effect to any applicable
subordination provisions.
"Restricted Subsidiary" means each Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Revolving Credit Borrowing" means Revolving Loans made on the same day
by the Revolving Credit Lenders ratably according to their respective Revolving
Credit Commitments.
"Revolving Credit Commitment" means, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving Loans
and acquire interests in other Revolving Credit Outstandings in the aggregate
principal amount outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule I under the caption "Revolving Credit Commitment," as
amended to reflect each Assignment and Acceptance or Assumption Agreement
executed by such Lender and as such amount may be adjusted pursuant to this
Agreement.
"Revolving Credit Facility" means the Revolving Credit Commitments and
the provisions herein related to the Revolving Loans, Swing Loans and Letters of
Credit.
"Revolving Credit Lender" means each Lender having a Revolving Credit
Commitment.
"Revolving Credit Note" means any promissory note of any Borrower
payable to the order of any Revolving Credit Lender in a principal amount equal
to the amount of such Lender's Revolving Credit Commitment evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from the
Revolving Loans owing to such Lender.
"Revolving Credit Outstandings" means, at any particular time, the sum
of (a) the principal amount of the Revolving Loans outstanding at such time plus
(b) the Letter of Credit Obligations outstanding at such time plus (c) the
principal amount of the Swing Loans outstanding at such time plus (d) the face
amount of Bankers' Acceptances and the principal amount of BA Equivalent Loans
outstanding at such time. For the purposes of determining the amount of
Revolving Credit Outstandings (or any component thereof) in respect of any such
Obligation that is denominated in an Alternate Currency, such amount shall equal
the Dollar Equivalent of the amount of such Alternate Currency at the time of
determination thereof.
"Revolving Credit Termination Date" means the earliest of (a) the
Scheduled Termination Date, (b) the date of termination of the Revolving Credit
Commitments pursuant to Section 2.6 and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2.
"Revolving Loan" has the meaning specified in Section 2.1(a).
"Scheduled Termination Date" means the earlier of (a) June 30, 2005 and
(b) the "Termination Date" as defined under the Mexican Facility Documents.
"Screen" means the Dow ▇▇▇▇▇ Market Services telerate screen or such
other comparable publicly available service for displaying eurocurrency rates as
may be selected by the Administrative Agent.
"Secured Obligations" means (a) in the case of the Company, the
Obligations of the Company and the Mexican Facility Tranche A Guaranty
Obligations, (b) in the case of any Guarantor that is a Domestic Subsidiary, the
obligations of such Guarantor under the Guaranty and the other Loan Documents to
which it is a party and the Mexican Facility Tranche A Guaranty Obligations, (c)
in the case of any Guarantor that is a Canadian Borrower, the Obligations of
such Guarantor in its capacity as a
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Canadian Borrower, the obligations of such Guarantor under the Guaranty and the
Mexican Facility Tranche A Guaranty Obligations, and (d) in the case of any
Guarantor that is a Foreign Subsidiary (other than the Canadian Borrowers), the
obligations of such Guarantor under the Guaranty and the other Loan Documents to
which it is a party.
"Secured Parties" means (a) the Lenders, the Issuers, the
Administrative Agent, the Collateral Agent and any other holder of any of the
Obligations and (b) if and to the extent set forth in the Mexican Intercreditor
Agreement, any holder of the Mexican Facility Tranche A Guaranty Obligations.
"Security" means any Stock, Stock Equivalent, voting trust certificate,
bond, debenture, note or other evidence of Indebtedness, whether secured,
unsecured, convertible or subordinated, or any certificate of interest, share or
participation in, or any temporary or interim certificate for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"Senior Leverage Ratio" means, with respect to any Person for any
period, the ratio of (a) (i) Total Debt of such Person as of the last day of
such period minus (ii) that portion of such Total Debt constituting Subordinated
Debt to (b) EBITDA for such Person for such period.
"Senior Subordinated Debt Documents" means the Senior Subordinated Note
Indentures, the Senior Subordinated Notes and all agreements and documents
executed in connection therewith at any time, including without limitation those
agreements and documents listed on Schedule 4.20.
"Senior Subordinated Notes" means the Senior Subordinated Notes issued
by the Company in the aggregate original principal amount of $200,000,000 due
2007 issued pursuant to the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" means, collectively, the Senior
Subordinated Indenture between the Company, the subsidiary guarantors named
therein and First Trust National Association, as trustee, dated as of June 24,
1997, as amended or modified from time to time and the Indenture between the
Company, the subsidiary guarantors named therein, and U.S. Bank Trust National
Association, as trustee, dated as of December 1, 1998, as amended or modified
from time to time.
"Solvent" means, with respect to any Person, that the value of the
assets of such Person (both at fair value and present fair saleable value) is,
on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities mature and does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 9.2(e).
"Stock" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
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"Subordinated Debt" of any Person shall mean, as of any date, that Indebtedness
of such Person for borrowed money which is expressly subordinate and junior in
right and priority of payment to the Obligations and other Indebtedness of such
Person to the Lenders in manner, by agreement and subject to terms and
provisions satisfactory in form and substance to the Requisite Lenders and
subject to such other terms and provisions, including without limitation
maturities, covenants, defaults, rates and fees, acceptable to the Requisite
Lenders, and shall include, without limitation, all Indebtedness owing pursuant
to the Senior Subordinated Debt Documents and any Permitted Disqualified Stock.
"Subordinated Debt Documents" means the Senior Subordinated Debt
Documents and any other agreement or document evidencing or relating to any
Subordinated Debt, whether under the Senior Notes or any other Subordinated
Debt.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of 50% or more of the outstanding Voting Stock is, at the time,
directly or indirectly, owned or controlled by such Person and/or one or more
Subsidiaries of such Person.
"Subsidiary Guarantor" means each Domestic Subsidiary and each Canadian
Subsidiary of the Company party to the Guaranty.
"Swing Loan" has the meaning specified in Section 2.3.
"Swing Loan Commitment" means, with respect to the Swing Loan Lender,
the commitment of such Swing Loan Lender to make Swing Loans to the Borrowers
pursuant to Section 2.3 in the aggregate principal amount at any time
outstanding not to exceed the lesser of (i) such Lender's Revolving Credit
Commitment and (ii) $25,000,000.
"Swing Loan Lender" means Citicorp and each other Revolving Credit
Lender who becomes the Administrative Agent or who agrees with the approval of
the Administrative Agent and the Borrowers to act as a Swing Loan Lender
hereunder.
"Swing Loan Request" has the meaning specified in Section 2.3(b).
"Syndication Agent" has the meaning specified at the beginning of this
Agreement.
"Tax Sharing Agreement" means any tax sharing or similar agreement, if
any, entered into between the Company and its Subsidiaries at any time, as
amended or modified from time to time.
"Taxes" has the meaning specified in Section 2.17(a).
"Term Loan" has the meaning specified in Section 2.1(b).
"Term Loan Borrowing" means Term Loans made on the same day by the Term
Loan Lenders ratably according to their respective Term Loan Commitments.
"Term Loan Commitment" means, with respect to each Term Loan Lender,
the commitment of such Lender to make Term Loans to the Borrowers in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I under the caption "Term Loan
Commitment" as amended to reflect each Assignment and Acceptance or Assumption
Agreement executed by such Lender and as such amount may be adjusted pursuant to
this Agreement.
"Term Loan Facility" means the Term Loan Commitments and the provisions
herein related to the Term Loans.
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"Term Loan Lender" means each Lender having a Term Loan Commitment.
"Term Loan Maturity Date" means the earlier of (a) June 30, 2005 and
(b) the "Termination Date" as defined under the Mexican Facility Documents.
"Term Loan Note" means any promissory note of any Borrower payable to
the order of any Term Loan Lender in a principal amount equal to the amount of
such Lender's Term Loan Commitment evidencing the Indebtedness of such Borrower
to such Lender resulting from the Term Loan owing to such Lender.
"Title IV Plan" means a pension plan, other than a Multiemployer Plan,
which is covered by Title IV of ERISA to which the Company any of its
Subsidiaries or any ERISA Affiliate has any obligation or liability (contingent
or otherwise).
"Tooling" shall mean dies, molds, tooling and similar items.
"Tooling Indebtedness" shall mean all present and future Indebtedness
of the Company and its Restricted Subsidiaries the proceeds of which are
utilized to finance Tooling for which the sales of such Tooling is covered under
specific written purchase orders or agreements between the Company or any
Subsidiary and the purchaser of such Tooling, which Indebtedness can be and is
being fully serviced by payments for such Tooling so financed and which payments
are not in dispute, all as determined by the Administrative Agent, and which
Indebtedness can be classified as "Tooling Indebtedness" under the Senior
Subordinated Debt Documents.
"Total Assets" of any Person means, at any date, the total assets of
such Person and its Subsidiaries at such date determined on a consolidated basis
in conformity with GAAP minus (a) any minority interest in non-wholly-owned
Subsidiaries that would be reflected on a consolidated balance sheet of such
person and its Subsidiaries at such date prepared in conformity with GAAP and
(b) any Securities issued by such Person held as treasury securities.
"Total Debt" shall mean, as of any date, each of the following, on a
consolidated basis for the Company and its Restricted Subsidiaries without
duplication: (a) all Indebtedness (except as hereafter provided) for borrowed
money and similar monetary obligations evidenced by bonds, notes, debentures,
Capital Lease obligations, bankers' acceptances or otherwise, including without
limitation all assumed Indebtedness and all obligations in respect of the
deferred purchase price of properties or assets and the factoring of accounts
receivable, in each case whether direct or indirect; plus (b) all liabilities
secured by any Lien existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; plus (c)
all reimbursements obligations under outstanding letters of credit in respect of
drafts which may be presented or have been presented and have not yet been paid
and are not included in clause (a) above; plus (d) Permitted Disqualified Stock
or Disqualified Stock (other than the ▇▇▇▇▇▇▇ Preferred Stock); plus (e) all
Guaranty Obligations with respect to any of the indebtedness, obligations or
liabilities described in the foregoing clauses (a), (b), (c) or (d), including
without limitation all Guaranty Obligations of the Company or any Restricted
Subsidiary with respect to any such indebtedness, obligations or liabilities of
any Unrestricted Subsidiaries; minus (f) deferred reimbursement tooling
indebtedness, i.e., only that portion of Tooling Indebtedness to be paid by the
purchaser of the related Tooling in the piece price over the term of the related
tooling contract consistent with current practice; minus (g) Cash Equivalents
and cash of the Company and its Restricted Subsidiaries (less any book
overdrafts, bank overdrafts or similar items) in an aggregate amount not to
exceed $30,000,000 as long as the aggregate amount of all outstanding Revolving
Loans and Acceptances is greater than $5,000,000. "Total Debt" shall in no event
include obligations in respect of factoring or securitization of accounts
receivable or synthetic leases to the extent such obligations are non-recourse
to the Company and its Restricted Subsidiaries or are subordinated to the
Obligations (but only if such subordination meets the requirements set forth in
the definition of "Subordinated Debt").
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"Unfunded Pension Liability" means, with respect to the Company and its
Subsidiaries at any time, the sum of (a) the amount, if any, by which the
present value of all accrued benefits under each Title IV Plan (other than any
Title IV Plan subject to Section 4063 of ERISA) exceeds the fair market value of
all assets of such Title IV Plan allocable to such benefits in accordance with
Title IV of ERISA, as determined as of the most recent valuation date for such
Title IV Plan using the actuarial assumptions in effect under such Title IV
Plan, and (b) the aggregate amount of withdrawal liability that could be
assessed under Section 4063 with respect to each Title IV Plan subject to such
Section, separately calculated for each such Title IV Plan as of its most recent
valuation date and (c) for a period of five years following a transaction
reasonably likely to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by the Company, any of its
Subsidiaries or any ERISA Affiliate as a result of such transaction.
"Unrestricted Subsidiary" means any Foreign Subsidiary of the Company
existing as of the Effective Date and described on Schedule III and each Foreign
Subsidiary of the Company created or acquired after the Effective Date that is
designated by the Company as an "Unrestricted Subsidiary".
"Unused Commitment Fee" has the meaning specified in Section 2.13(a).
"Voting Stock" means Stock of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency).
"Wackenhut" means Gebr. Wackenhut GmbH Karosserie-und Fahrzeug Fabrik,
a corporation organized under the laws of the Federal Republic of Germany.
"Withdrawal Liability" means, with respect to the Company and its
Subsidiaries at any time, the aggregate liability incurred (whether or not
assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of
ERISA or for increases in contributions required to be made pursuant to Section
4243 of ERISA.
"Working Capital" means, for any Person at any date, the amount by
which the Consolidated Current Assets of such Person at such date exceeds the
Consolidated Current Liabilities of such Person at such date.
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including."
SECTION 1.3. ACCOUNTING TERMS AND PRINCIPLES; DOLLAR EQUIVALENT.
(a) Except as set forth below, all accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
is hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successors thereto) and such change is
adopted by the Borrowers with the agreement of their independent public
accountants and results in a change in any of the calculations required by
Article V or Article VIII had such accounting change not occurred, the parties
hereto agree to enter into negotiations in order to amend such provisions so as
to equitably reflect such change with the desired result that the criteria for
evaluating compliance with such covenants by the
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Borrowers shall be the same after such change as if such change had not been
made; provided, however, that no change in GAAP that would affect a calculation
that measures compliance with any covenant contained in Article V or Article
VIII shall be given effect until such provisions are amended to reflect such
changes in GAAP.
(c) Except as expressly set forth herein to the contrary, all
references to amounts denominated in Dollars shall mean and be a reference to
such amount in Dollars or the Dollar Equivalent thereof in any applicable
currency.
SECTION 1.4. CERTAIN TERMS.
(a) The words "herein," "hereof" and "hereunder" and similar words
refer to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, subsection or clause in this Agreement.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. If the prior written consent of the
Requisite Lenders is required hereunder for an amendment, restatement,
supplement or other modification to any such agreement and such consent is
obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect at the time any such reference is
operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent" include
their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to Section 8.6, references to Citicorp in Section 8.3 and to Citibank
in the definitions of Base Rate, Dollar Equivalent and Eurocurrency Rate shall
be deemed to refer to the financial institution then acting as the
Administrative Agent or one of its Affiliates if it so designates.
ARTICLE II
THE FACILITIES
SECTION 2.1. THE COMMITMENTS.
(a) Revolving Credit Commitments. On the terms and subject to the
conditions contained in this Agreement, each Revolving Credit Lender severally
agrees to make loans in Dollars or in an Alternate Currency (each a "Revolving
Loan") to the Borrowers from time to time on any Business Day during the period
from the date hereof until the Revolving Credit Termination Date in an aggregate
amount not to exceed at any time outstanding for all such loans by such Lender
such Lender's Revolving Credit Commitment; provided, however, that (i) the
aggregate outstanding principal amount of Revolving Credit Outstandings in any
Alternate Currency shall at no time exceed the Multicurrency Sublimit for such
Alternate Currency and (ii) only Canadian Lenders shall be obligated to make
Revolving Loans to a Canadian Borrower in accordance with their respective
Canadian Ratable Portions and such Revolving Loans shall only be denominated in
Canadian Dollars. Within the limits of each Lender's Revolving
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Credit Commitment, amounts of Revolving Loans repaid may be reborrowed under
this Section 2.1(a). On the Effective Date, the outstanding aggregate amount of
Existing Revolving Credit Loans shall be amended, combined and continued, and
such amended, combined and continued amount shall be, and shall be deemed to be,
Revolving Credit Outstandings and/or participations in Letters of Credits made
by the Revolving Credit Lenders hereunder. Each Revolving Credit Lender
severally agrees, on the terms and conditions set forth herein, to purchase and
assume on the Effective Date an undivided interest in the rights and obligations
of the Existing Lenders in an amount equal to (a) as to each such Lender, such
Lender's Ratable Portion of the aggregate principal amount of such Existing
Revolving Credit Loans owing by the Company and (b) as to each such Lender that
is a Canadian Lender, such Lender's Canadian Ratable Portion of the aggregate
principal amount of such Existing Revolving Credit Loans owing by the Borrowing
Subsidiaries. In furtherance of the foregoing, on the Effective Date, (I) each
Revolving Credit Lender shall, in accordance with Section 2.2, make a Revolving
Credit Loan in an amount equal to the difference between such Lender's Revolving
Credit Commitment and such Lender's Ratable Portion of the sum of (a) the
Existing Revolving Credit Loans then owing by the Company and (b) the Revolving
Credit Loans requested by the Company to be made to it on the Effective Date and
(II) each Revolving Credit Lender that is a Canadian Lender shall, in accordance
with Section 2.2, make a Revolving Credit Loan in an amount equal to the
difference between such Lender's Revolving Credit Commitment and such Lender's
Canadian Ratable Portion of the sum of (a) the Existing Revolving Credit Loans
then owing by the Borrowing Subsidiaries and (b) the Revolving Credit Loans
requested by the Borrowing Subsidiaries to be made to them on the Effective
Date.
(b) Term Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally agrees
to make a loan (each a "Term Loan") to the Borrowers in Dollars on the Effective
Date and, if applicable, on each Facilities Increase Effective Date, in an
amount not to exceed such Lender's Term Loan Commitment in effect on such date.
Amounts of Term Loans repaid or prepaid may not be reborrowed.
SECTION 2.2. BORROWING PROCEDURES.
(a) Each Revolving Credit Borrowing shall be made on notice given by
the Borrowers to the Administrative Agent not later than 11:00 a.m. (New York
City time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans
and (ii) three Business Days, in the case of a Borrowing of Eurocurrency Rate
Loans, prior to the date of the proposed Revolving Credit Borrowing. Each such
notice shall be in substantially the form of Exhibit C (a "Notice of
Borrowing"), specifying (A) the date of such proposed Revolving Credit
Borrowing, (B) the aggregate amount of such proposed Revolving Credit Borrowing,
(C) whether any portion of the proposed Revolving Credit Borrowing will be of
Base Rate Loans or Eurocurrency Rate Loans, (D) the initial Interest Period or
Periods for any such Eurocurrency Rate Loans and (E) the applicable Borrower and
Currency of such Revolving Credit Borrowing. The Revolving Loans shall be made
as Base Rate Loans unless (subject to Section 2.14) the Notice of Borrowing
specifies that all or a portion thereof shall be Eurocurrency Rate Loans;
provided, however, that all Canadian Loans shall be made as Base Rate Loans and
all Loans denominated in Euros shall be made as Eurocurrency Rate Loans. Each
Revolving Credit Borrowing shall be in an aggregate amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, or, in the
case of Multicurrency Loans, in an aggregate minimum principal amount equal to
an integral multiple of 100,000 units in the applicable Alternate Currency and
(converted to the Dollar Equivalent thereof) equal to or greater than
$5,000,000. For the purposes of determining compliance with this Section 2.2(a),
the Dollar Equivalent of a Multicurrency Loan shall be determined by the
Administrative Agent upon receipt from the Borrower of the Notice of Borrowing
requesting such Multicurrency Loan, and such Dollar Equivalent shall be
recalculated on each date that it shall be necessary to determine the unused
portion of each Lender's Revolving Credit Commitment or any or all of the
Revolving Credit Outstandings on such date.
(b) Each Term Loan Borrowing shall be made upon receipt of a Notice
of Borrowing given by the Borrowers to the Administrative Agent not later than
11:00 a.m. (New York City time) (i)
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one Business Day, in the case of a Borrowing of Base Rate Loans and (ii) three
Business Days, in the case of a Borrowing of Eurocurrency Rate Loans, prior to
the Effective Date or a Facilities Increase Effective Date, as applicable. The
Notice of Borrowing shall specify (A) the Effective Date or the applicable
Facilities Increase Effective Date, (B) the aggregate amount of such proposed
Term Loan Borrowing, (C) whether any portion of the proposed Term Loan Borrowing
will be of Base Rate Loans or Eurocurrency Rate Loans, and (D) the initial
Interest Period or Periods for any such Eurocurrency Rate Loans. The Term Loans
shall be made as Base Rate Loans unless (subject to Section 2.15) the Notice of
Borrowing specifies that all or a portion thereof shall be Eurocurrency Rate
Loans.
(c) The Administrative Agent shall give to each Lender prompt notice
of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurocurrency Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to Section 2.15(a). Each Lender
shall, before 11:00 a.m. (New York City time) or 10:00 a.m. (Toronto time) in
the case of Canadian Loans on the date of the proposed Borrowing, make available
to the Administrative Agent at its address referred to in Section 9.8, in
immediately available funds, such Lender's Ratable Portion or Canadian Ratable
Portion, as applicable of such proposed Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Sections 3.1, 3.2 and 3.3, as applicable, the Administrative Agent
will make such funds available to the Borrowers.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any proposed Borrowing that such Lender will not
make available to the Administrative Agent such Lender's Ratable Portion or,
Canadian Ratable Portion in the case of a Borrowing by a Canadian Borrower, the
Administrative Agent may assume that such Lender has made such Ratable Portion
or, Canadian Ratable Portion, as applicable, available to the Administrative
Agent on the date of such Borrowing in accordance with this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such Ratable Portion or, Canadian
Ratable Portion, as applicable, available to the Administrative Agent, such
Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of such Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Interbank Rate for the first Business Day and thereafter at the interest rate
applicable at the time to the Loans comprising such Borrowing. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement. If the applicable Borrower shall repay to the
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have hereunder to such Borrower.
(e) Notwithstanding anything in this Section 2.2 to the contrary, if
any Revolving Credit Lender shall, not later than 10:00 a.m. (London time) two
Business Days before the date of any requested Borrowing of Multicurrency Loans,
notify the Administrative Agent that such Lender is not satisfied that deposits
in the relevant Alternate Currency will be freely available to it in the
relevant amount and for the relevant Interest Period, the right of the Borrowers
to request Multicurrency Loans in such Alternate Currency from such Lender as
part of such Borrowing or any subsequent Borrowing of Multicurrency Loans shall
be suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and, at the option of the
Borrowers, either (i) the applicable Notice of Borrowing may be withdrawn and
such Borrowing shall not be made or (ii) the Multicurrency Loan to be made by
such Lender as part of such Borrowing (and the Multicurrency Loan to be made by
such Lender as part of any subsequent Borrowing of Multicurrency Loans in
respect of which such Alternate Currency shall have been requested during such
period of suspension) shall be a Eurocurrency Rate Loan denominated in Dollars
and having an Interest Period coextensive with the Interest Period in effect in
respect of all other Multicurrency Loans comprising a part of such Borrowing. If
the Borrowers elect to withdraw their Notice of Borrowing, the Borrower shall be
liable to each
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Revolving Credit Lender for any damages suffered on account thereof of a nature
described in Section 2.16(b). The Administrative Agent shall, upon receiving
notice from such Lender that the circumstances causing any such suspension no
longer apply, promptly so notify the Borrower; provided, however, that the
failure of the Administrative Agent to so notify the Borrower shall not impair
the rights of the Revolving Credit Lenders under this Section 2.2(e) or expose
the Administrative Agent to any liability.
(f) Notwithstanding anything in this Section 2.2 to the contrary, in
the event a Canadian Borrower requests a Borrowing of Revolving Loans, the
Non-Canadian Lenders shall not be required to fund their Ratable Portion of such
Borrowing. Subject to the fulfillment of the conditions precedent set forth in
Sections 3.1, 3.2 and 3.3, as applicable, each Canadian Lender agrees to fund
its Canadian Ratable Portion of such Borrowing; provided, however, that in no
event shall the amount of Revolving Credit Outstandings owing to such Lender,
after giving effect to such Borrowing, exceed such Lender's Revolving Credit
Commitment in effect at such time.
(g) If on any Business Day, the Revolving Credit Outstandings owing
to any Canadian Lender are greater than such Canadian Lender's Ratable Portion
of the Revolving Credit Outstandings, then upon the request of any Lender or the
Borrower to the Administrative Agent or at the direction of the Administrative
Agent (with notice from the Administrative Agent to each Revolving Credit Lender
and the Borrowers), to the extent the Canadian Lenders have outstanding
Revolving Loans denominated in Dollars or Euros, each Revolving Credit Lender
that is not a Canadian Lender, shall purchase from the Canadian Lenders such
Revolving Loans denominated in Dollars or Euros as shall be necessary to cause
each Revolving Credit Lender to have Revolving Credit Outstandings owing to it
equal to its Ratable Portion of the Revolving Credit Outstandings. The amount of
such Loans purchased by each Revolving Credit Lender pursuant to this paragraph
shall be determined by the Administrative Agent in accordance with each
Revolving Lender's Ratable Portion. No request by the Borrower or a Lender under
this paragraph may be made more that once in any 10 Business Day period and,
unless a Default or Event of Default shall have occurred and be continuing, no
purchase of a Eurocurrency Rate Loan may occur on any day other than the last
day of the applicable Interest Period.
(h) The failure of any Lender to make the Loan or any payment
required by it on the date specified (a "Non-Funding Lender"), including any
payment in respect of its participation in Swing Loans and Letter of Credit
Obligations, shall not relieve any other Lender of its obligations to make such
Loan or payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment required under
this Agreement.
SECTION 2.3. SWING LOANS.
(a) On the terms and subject to the conditions contained in this
Agreement, the Swing Loan Lender may in its sole discretion make loans (each a
"Swing Loan") otherwise available to the Borrowers under the Revolving Credit
Facility from time to time on any Business Day during the period from the date
hereof until the Revolving Credit Termination Date in an aggregate amount at any
time outstanding at any time not to exceed the Swing Loan Lender's Swing Loan
Commitment. Each Swing Loan shall be a Base Rate Loan denominated in Dollars and
must be repaid in full within seven days of its making or, if sooner, upon any
Revolving Credit Borrowing hereunder and shall in any event mature no later than
the Revolving Credit Termination Date. Within the limits set forth in the first
sentence of this Section 2.3(a), amounts of Swing Loans repaid may be reborrowed
under this Section 2.3(a).
(b) In order to request a Swing Loan, the Borrowers shall telecopy
to the Administrative Agent a duly completed request setting forth the date, the
requested amount and date of the Swing Loan (a "Swing Loan Request"), to be
received by the Administrative Agent not later than 1:00 p.m. (New York City
time) on the day of the proposed borrowing. The Administrative Agent shall
promptly notify the Swing Loan Lender of the details of the requested Swing
Loan. Subject to the terms of this Agreement, the Swing Loan Lender shall make a
Swing Loan available to the Administrative
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Agent which will make such amounts available to the Borrowers on the date of the
relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan
in the period commencing on the first Business Day after it receives written
notice from any Lender that one or more of the conditions precedent contained in
Section 3.2 shall not on such date be satisfied, and ending when such conditions
are satisfied. The Swing Loan Lender shall not otherwise be required to
determine that, or take notice whether, the conditions precedent set forth in
Section 3.2 hereof have been satisfied in connection with the making of any
Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative Agent in
writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York
City time) on the first Business Day of each week, of the aggregate principal
amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving
Credit Lender pay to the Administrative Agent, for the account of the Swing Loan
Lender, in the manner provided in clause (e) below, such Revolving Credit
Lender's Ratable Portion of all or a portion of the outstanding Swing Loans,
which demand shall be made through the Administrative Agent, shall be in writing
and shall specify the outstanding principal amount of Swing Loans demanded to be
paid.
(e) The Administrative Agent shall forward each notice referred to
in clause (c) above and each demand referred to in clause (d) above to each
Revolving Credit Lender on the day such notice or such demand is received by the
Administrative Agent (except that any such notice or demand received by the
Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or
any such demand received on a day that is not a Business Day shall not be
required to be forwarded to the Revolving Credit Lenders by the Administrative
Agent until the next succeeding Business Day), together with a statement
prepared by the Administrative Agent specifying the amount of each Revolving
Credit Lender's Ratable Portion of the aggregate principal amount of the Swing
Loans stated to be outstanding in such notice or demanded to be paid pursuant to
such demand, and, notwithstanding whether or not the conditions precedent set
forth in Section 3.2 shall have been satisfied (which conditions precedent the
Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender
shall, before 11:00 a.m. (New York City time) on the Business Day next
succeeding the date of such Revolving Credit Lender's receipt of such written
statement, make available to the Administrative Agent, in immediately available
funds, for the account of the Swing Loan Lender, the amount specified in such
statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit
Lender shall, except as provided in clause (f) below, be deemed to have made a
Revolving Loan to the Borrowers. The Administrative Agent shall use such funds
to repay the Swing Loans to the Swing Loan Lender. To the extent that any
Revolving Credit Lender fails to make such payment available to the
Administrative Agent for the account of the Swing Loan Lender, the Borrowers
shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default under Section 7.1(f), each
Revolving Credit Lender shall acquire, without recourse or warranty, an
undivided participation in each Swing Loan otherwise required to be repaid by
such Revolving Credit Lender pursuant to clause (e) above, which participation
shall be in a principal amount equal to such Revolving Credit Lender's Ratable
Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on
which such Revolving Credit Lender would otherwise have been required to make a
payment in respect of such Swing Loan pursuant to clause (e) above, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of such Swing Loan. If such amount is not in fact made available
by such Revolving Credit Lender to the Swing Loan Lender on such date, the Swing
Loan Lender shall be entitled to recover such amount on demand from such
Revolving Credit Lender together with interest accrued from such date at the
Interbank Rate for the first Business Day after such payment was due and
thereafter at the rate of interest then applicable to Base Rate Loans.
(g) From and after the date on which any Revolving Credit Lender is
deemed to have made a Revolving Credit Loan pursuant to clause (e) above with
respect to any Swing Loan or purchases an undivided participation interest in a
Swing Loan pursuant to clause (f) above, a Swing Loan Lender
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shall promptly distribute to such Revolving Credit Lender such Revolving Credit
Lender's Ratable Portion of all payments of principal of and interest received
by the Swing Loan Lender on account of such Swing Loan other than those received
from a Revolving Credit Lender pursuant to clause (e) or (f) above.
SECTION 2.4. LETTERS OF CREDIT.
(a) On the terms and subject to the conditions contained in this
Agreement, each Issuer agrees to issue one or more Letters of Credit at the
request of the Borrowers for the account of the Borrowers from time to time
during the period commencing on the Effective Date and ending on the earlier of
the Revolving Credit Termination Date and five (5) days prior to the Scheduled
Termination Date; provided, however, that no Issuer shall be under any
obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or restrain
such Issuer from issuing such Letter of Credit or any Requirement of Law
applicable to such Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over
such Issuer shall prohibit, or request that such Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Issuer is not otherwise compensated) not in effect on the date of this
Agreement or result in any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuer as of the date of this
Agreement and which such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) such Issuer shall have received written notice from the
Administrative Agent, any Revolving Credit Lender or the Borrowers, on or
prior to the requested date of issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Sections 3.1 and 3.2 is
not then satisfied;
(iii) after giving effect to the issuance of such Letter of
Credit, the aggregate Revolving Credit Outstandings would exceed the
aggregate of the Revolving Credit Commitments in effect at such time;
(iv) after giving effect to the issuance of such Letter of
Credit, the Letter of Credit Obligations at such time exceeds $30,000,000;
(v) any fees due in connection with a requested issuance have
not been paid; or
(vi) if such Letter of Credit is in a currency other than
Dollars.
None of the Revolving Credit Lenders (other than the Issuers in their capacity
as such) shall have any obligation to issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of Credit (i)
be more than one year after the date of issuance thereof, or (ii) be less than
five (5) days prior to the Scheduled Termination Date; provided, however, that
any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the
expiry date referred to in clause (ii) above).
(c) In connection with the issuance of each Letter of Credit, the
Borrowers shall give the relevant Issuer and the Administrative Agent at least
two Business Days' prior written notice, in substantially the form of Exhibit D
(or in such other written or electronic form as is acceptable to the Issuer), of
the requested issuance of such Letter of Credit (a "Letter of Credit Request").
Such notice shall be irrevocable and shall specify the Issuer of such Letter of
Credit, the stated amount of the Letter of
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Credit requested, which stated amount (or, if such Letter of Credit is to be
denominated in an Alternate Currency, the Dollar Equivalent of such stated
amount) shall not be less than $500,000, the date of issuance of such requested
Letter of Credit (which day shall be a Business Day), the date on which such
Letter of Credit is to expire (which date shall be a Business Day), and the
Person for whose benefit the requested Letter of Credit is to be issued. Such
notice, to be effective, must be received by the relevant Issuer and the
Administrative Agent not later than 11:00 a.m. (New York City time) on the
second Business Day prior to the requested issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in this
Section 2.4, the relevant Issuer shall, on the requested date, issue a Letter of
Credit on behalf of the Borrowers in accordance with such Issuer's usual and
customary business practices. No Issuer shall issue any Letter of Credit in the
period commencing on the first Business Day after it receives written notice
from any Lender that one or more of the conditions precedent contained in
Section 3.2 shall not on such date be satisfied, and ending when such conditions
are satisfied. The relevant Issuer shall not otherwise be required to determine
that, or take notice whether, the conditions precedent set forth in Section 3.2
have been satisfied in connection with the issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance of each
Letter of Credit by such Issuer, and as a condition of such issuance and of the
participation of each Revolving Credit Lender in the Letter of Credit
Obligations arising with respect thereto, the applicable Borrower shall have
delivered to such Issuer a letter of credit reimbursement agreement, in such
form as the Issuer may employ in its ordinary course of business for its own
account (a "Letter of Credit Reimbursement Agreement"), signed by such Borrower,
and such other documents or items as may be required pursuant to the terms
thereof. In the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
govern.
(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or telephonic
notice confirmed promptly thereafter in writing, which may be by telecopier)
of the issuance or renewal of a Letter of Credit issued by it, of all
drawings under a Letter of Credit issued by it and the payment (or the
failure to pay when due) by the applicable Borrower of any Reimbursement
Obligation when due (which notice the Administrative Agent shall promptly
transmit by telecopy or similar transmission to each Revolving Credit
Lender);
(ii) upon the request of any Revolving Credit Lender, furnish to
such Revolving Credit Lender copies of any Letter of Credit Reimbursement
Agreement to which such Issuer is a party and such other documentation as
may reasonably be requested by such Revolving Credit Lender; and
(iii) no later than 10 Business Days following the last day of
each calendar month, provide to the Administrative Agent (and the
Administrative Agent shall provide a copy to each Revolving Credit Lender
requesting the same) and the Borrowers separate schedules for documentary
and standby letters of credit issued by it, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate Letter
of Credit Obligations outstanding at the end of each month and any
information requested by the Borrowers or the Administrative Agent relating
thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of Credit
in accordance with the terms and conditions of this Agreement, such Issuer shall
be deemed to have sold and transferred to each Revolving Credit Lender (or to
each Canadian Lender in the case of Letters of Credit issued for the account of
a Canadian Borrower), and such Revolving Credit Lender shall be deemed
irrevocably and unconditionally to have purchased and received from such Issuer,
without recourse or warranty, an undivided interest and participation, to the
extent of such Revolving Credit Lender's Ratable Portion (or
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Canadian Ratable Portion, in the case of Letters of Credit issued for the
account of a Canadian Borrower) of the Revolving Credit Commitments, in such
Letter of Credit and the obligations of the Borrowers with respect thereto
(including all Letter of Credit Obligations with respect thereto) and any
security therefor and guaranty pertaining thereto.
(h) Each Borrower agrees to pay to the Issuer of any Letter of Credit
the amount of all Reimbursement Obligations owing to such Issuer under any
Letter of Credit issued for its account when such amounts are due and payable,
irrespective of any claim, set-off, defense or other right which such Borrower
may have at any time against such Issuer or any other Person. In the event that
any Issuer makes any payment under any Letter of Credit and the Borrower for
whose account such Letter of Credit was issued shall not have repaid such amount
to such Issuer pursuant to this clause (h) or such payment is rescinded or set
aside for any reason, such Reimbursement Obligation shall be payable on demand
with interest thereon computed from the date on which such Reimbursement
Obligation arose to the date of repayment in full at the rate of interest
applicable to past due Revolving Loans bearing interest at a rate based on the
Base Rate during such period, and such Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each Revolving Credit Lender
(or each Canadian Lender in the case of Letters of Credit issued for the account
of a Canadian Borrower) of such failure, and each Revolving Credit Lender (or
Canadian Lender) shall promptly and unconditionally pay to the Administrative
Agent for the account of such Issuer the amount of such Revolving Credit
Lender's Ratable Portion (or such Canadian Lender's Canadian Ratable Portion) of
such payment in the applicable Currency and in immediately available funds. If
the Administrative Agent so notifies such Revolving Credit Lender prior to 11:00
a.m. (New York City time) on any Business Day, such Revolving Credit Lender
shall make available to the Administrative Agent for the account of such Issuer
its Ratable Portion or Canadian Ratable Portion, as applicable, of the amount of
such payment on such Business Day in immediately available funds. Upon such
payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except
during the continuance of a Default or Event of Default under Section 7.1(h) and
notwithstanding whether or not the conditions precedent set forth in Section 3.2
or 3.3, as applicable, shall have been satisfied (which conditions precedent the
Revolving Credit Lenders hereby irrevocably waive) be deemed to have made a
Revolving Loan to the applicable Borrower in the principal amount of such
payment. Whenever any Issuer receives from a Borrower a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving Credit Lender pursuant
to this clause (h) above, such Issuer shall pay to the Administrative Agent and
the Administrative Agent shall promptly pay to each Revolving Credit Lender or
Canadian Lender, as applicable, in immediately available funds, an amount equal
to such Revolving Credit Lender's Ratable Portion (or such Canadian Lender's
Canadian Ratable Portion) of the amount of such payment adjusted, if necessary,
to reflect the respective amounts such Revolving Credit Lenders (or Canadian
Lenders) have paid in respect of such Reimbursement Obligation.
(i) The Borrowers' obligation to pay each Reimbursement Obligation
with respect to Letters of Credit and the obligations of the Revolving Credit
Lenders to make payments to the Administrative Agent for the account of the
Issuers with respect to Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement, under any and all circumstances whatsoever, including the
occurrence of any Default or Event of Default, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, set off, defense or other right
that the Borrowers, any other party guaranteeing, or otherwise obligated
with, the Borrowers, any Subsidiary or other Affiliate thereof or any other
Person may at any time have against the
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beneficiary under any Letter of Credit, Issuer, the Administrative Agent or
any Lender or any other Person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuer, the Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the Borrowers' obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to the Borrowers or any Revolving Credit Lender. In
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof, the Issuer may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (x) the Issuer may rely
exclusively on the documents presented to it under such Letter of Credit as to
any and all matters set forth therein, including reliance on the amount of any
draft presented under such Letter of Credit, whether or not the amount due to
the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and any noncompliance in any immaterial respect of the documents presented under
such Letter of Credit with the terms thereof shall, in each case, be deemed not
to constitute willful misconduct or gross negligence of the Issuer.
(j) If and to the extent such Revolving Credit Lender shall not have
so made its Ratable Portion or Canadian Ratable Portion, as applicable, of the
amount of the payment required by clause (i) above available to the
Administrative Agent for the account of such Issuer, such Revolving Credit
Lender agrees to pay to the Administrative Agent for the account of such Issuer
forthwith on demand such amount together with interest thereon, for the first
Business Day after payment was first due at the Interbank Rate, and thereafter
until such amount is repaid to the Administrative Agent for the account of such
Issuer, at the rate per annum applicable to Base Rate Loans. The failure of any
Revolving Credit Lender to make available to the Administrative Agent for the
account of such Issuer its Ratable Portion or Canadian Ratable Portion in the
case of Letters of Credit in an Alternate Currency of any such payment shall not
relieve any other Revolving Credit Lender of its obligation hereunder to make
available to the Administrative Agent for the account of such Issuer its Ratable
Portion or Canadian Ratable Portion, as applicable, of any payment on the date
such payment is to be made, but no Revolving Credit Lender shall be responsible
for the failure of any other Revolving Credit Lender to make available to the
Administrative Agent for the account of the Issuer such other Revolving Credit
Lender's Ratable Portion or Canadian Ratable Portion, as applicable, of any such
payment.
SECTION 2.5. BANKERS' ACCEPTANCES.
(a) Subject to the terms and conditions hereof, upon giving to the
Administrative Agent prior written notice in accordance with this Section 2.5,
on any Business Day, a Canadian Borrower may borrow from the Canadian Lenders by
way of Acceptances, provided, however, that:
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(i) each Canadian Lender shall have received a Bankers'
Acceptance or Bankers' Acceptances in the aggregate principal amount of such
borrowing from such Canadian Lender in due and proper form duly completed
and executed by such Canadian Borrower and presented for acceptance to such
Canadian Lender prior to 10:00 a.m. (Toronto time) on the date for such
borrowing, together with such other document or documents as such Canadian
Lender may reasonably require (including the execution by such Canadian
Borrower of such Canadian Lender's usual form of bankers' acceptances) and
the Acceptance Fee shall have been paid to such Canadian Lender at or prior
to such time;
(ii) each Bankers' Acceptance shall be stated to mature on a
Business Day, no later than the Revolving Credit Termination Date, which is
30, 60 or 90 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall have a face amount of not
less than CAD100,000 and shall be in form satisfactory to such Canadian
Lender;
(iv) each Bankers' Acceptance shall be stated to mature on a
Business Day in such a way that no Canadian Lender will be required to incur
any costs for the redeployment of funds as a consequence of any repayment
required during any period for which such Bankers' Acceptance is
outstanding;
(v) no days of grace shall be permitted on any Bankers'
Acceptance;
(vi) the aggregate face amount of the Bankers' Acceptances to be
accepted by a Canadian Lender shall be determined by the Administrative
Agent by reference to the respective relevant Revolving Credit Commitments
of the Canadian Lenders, except that, if the face amount of a Bankers'
Acceptance which would otherwise be accepted by a Canadian Lender would not
be $100,000 or a whole multiple thereof, such face amount shall be increased
or reduced by the Administrative Agent in its sole discretion to $100,000 or
the nearest whole multiple of that amount, as appropriate; and
(vii) after giving affect to the issuance of each Acceptance, (A)
the aggregate Revolving Credit Outstandings owing to any Canadian Lender
would not exceed such Canadian Lender's Revolving Credit Commitment in
effect at such time or (B) the aggregate Revolving Credit Outstandings owing
to all of the Lenders would not exceed the Revolving Credit Commitments in
effect at such time.
(b) Each Canadian Borrower acknowledges, agrees and confirms that each
Canadian Lender may at any time and from time to time hold, sell, rediscount or
otherwise dispose of any Acceptance accepted and purchased by it hereunder, that
the records of such Canadian Lender in respect of payment of any Bankers'
Acceptance by such Canadian Lender shall be binding on such Canadian Borrower
and shall be conclusive evidence (in the absence of manifest error) of a BA Rate
Loan to such Canadian Borrower and of an amount owing by the Borrowing
Subsidiary to such Lender.
(c) In the event a Canadian Lender is unable or, in its sole
discretion, shall have determined that by reason of circumstances arising after
the Effective Date and affecting the market for Bankers' Acceptances, that it is
unwilling, to accept Bankers' Acceptances, such Canadian Lender shall have the
right at the time of accepting drafts to require the Canadian Borrower
requesting such Bankers' Acceptance to accept a Revolving Loan from such
Canadian Lender in lieu of the issue and acceptance of a Bankers' Acceptance
requested by the Borrowing Subsidiary (a "BA Equivalent Loan") to be accepted so
that there shall be outstanding while the Bankers' Acceptances are outstanding
BA Equivalent Loans from such Canadian Lender as contemplated herein. The
principal amount of each BA Equivalent Loan shall be that amount which, when
added to the amount of interest (calculated at the applicable Discount Rate)
which will accrue during the applicable BA Interest Period, equals, at maturity,
to the face amount
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of the drafts which would have been accepted by such Canadian Lender had it
accepted Bankers' Acceptances. On the relevant date of the borrowing the
Canadian Borrower requesting such Acceptance shall pay to the Administrative
Agent a fee equal to the Acceptance Fee which would have been payable to such
Canadian Lender if it were a Canadian Lender accepting drafts having a term to
maturity equal to the applicable BA Interest Period and an aggregate face amount
equal to the sum of the principal amount of the BA Equivalent Loan and the
interest payable thereon by such Canadian Borrower for the applicable BA
Interest Period. The provisions of this Agreement dealing with Bankers'
Acceptances shall apply, mutatis mutandis, to BA Equivalent Loans.
(d) Each Bankers' Acceptance issued pursuant to this Agreement shall
be purchased by the Canadian Lender accepting such Bankers' Acceptance for the
Discounted Proceeds thereof. Concurrent with the acceptance of each Bankers'
Acceptance, such Canadian Lender shall make available to the Administrative
Agent the Discounted Proceeds thereof for disbursement to the applicable
Canadian Borrower in accordance with the terms hereof. On any date on which both
new Bankers' Acceptances are being purchased and existing Bankers' Acceptances
are maturing, the applicable Canadian Borrower hereby authorizes the applicable
Canadian Lender and the Administrative Agent to net all amounts payable on such
date by such Canadian Lender to the Administrative Agent for the account of such
Canadian Borrower, against all amounts payable on such date by such Canadian
Borrower to such Canadian Lender in accordance with the Administrative Agent's
calculations. In each case, upon receipt of such Discounted Proceeds from such
Lender and upon fulfillment of the applicable conditions set forth herein, the
Administrative Agent shall make such funds available to the relevant Canadian
Borrower in accordance with this Agreement. Upon each issue of Bankers'
Acceptances as a result of the conversion of outstanding Base Rate Loans into
Bankers' Acceptances, each Canadian Borrower requesting such conversion shall,
concurrently with the conversion, pay in advance to the Administrative Agent on
behalf of the Canadian Lenders, the amount by which the face value of such
Bankers' Acceptances exceeds the Discounted Proceeds of such Bankers'
Acceptances, to be applied against the principal amount of the Base Rate Loans
being so converted. Such Canadian Borrower shall at the same time pay to the
Administrative Agent the applicable Acceptance Fee.
(e) To enable the Lenders to make Canadian Revolving Credit
Outstandings in the manner specified in this Section 2.5, each Canadian Borrower
shall, in accordance with the request of each Canadian Lender either (i) provide
a power of attorney to complete, sign, endorse and issue Bankers' Acceptances,
in such form as such Canadian Lender may require; or (ii) supply such Canadian
Lender with such number of drafts as such Canadian Lender may reasonably
request, duly endorsed and executed on behalf of such Canadian Borrower. Each
Canadian Lender shall exercise such care in the custody and safekeeping of
drafts as it would exercise in the custody and safekeeping of similar property
owned by it. Each Canadian Lender will, upon request by a Canadian Borrower,
promptly advise such Subsidiary of the number and designations, if any, of the
uncompleted drafts then held by it.
(f) Each Canadian Borrower agrees to pay to each Canadian Lender on
the maturity date of each Bankers' Acceptance issued by it, an amount equal to
the face amount of all Bankers' Acceptances accepted by such Canadian Lender
maturing on that day (notwithstanding that a Canadian Lender may be the holder
thereof at maturity) and all reasonable expenses paid or incurred by such
Canadian Lender, relative thereto. Unless such Canadian Borrower shall have made
such payment to the Canadian Lenders, on such day and upon each such maturity
date of each Bankers' Acceptance, the Administrative Agent shall be deemed to
have disbursed to the such Borrower, and such Borrower shall be deemed to have
elected to satisfy its reimbursement and payment obligation by, a Revolving
Credit Borrowing from the Canadian Lenders in Canadian Dollars bearing interest
at the Base Rate for the account of the Canadian Lenders in an amount equal to
the amount so paid by such Canadian Lender, in the face value of such Bankers'
Acceptance then maturing. Such Revolving Credit Borrowing shall be disbursed
notwithstanding any failure to satisfy any conditions for disbursement of any
Loan set forth in Section 3.2 and, to the extent of the Revolving Credit
Borrowing so disbursed, the reimbursement and payment obligation of the Company
under this Section 2.5(f) shall be deemed satisfied; provided,
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however, that nothing in this Section 2.5 shall be deemed to constitute a waiver
of any Default or Event of Default caused by the failure to the conditions for
disbursement or otherwise.
(g) The reimbursement and other payment obligations of the Canadian
Borrowers under this Section 2.5 shall be absolute, unconditional and
irrevocable and shall remain in full force and effect until all obligations of
the Borrowers to the Lenders hereunder shall have been satisfied, and such
obligations of the Canadian Borrowers shall not be affected, modified or
impaired upon the happening of any event, including any of the following,
whether or not with notice to, or the consent of, any Borrower:
(i) Any lack of validity or enforceability of any Acceptance or
to any transaction related in any way thereto (such Acceptance and any
documents evidencing such transaction, the "BA Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the BA Documents;
(iii) The existence of any claim, setoff, defense or other right
which the Company or any of its Subsidiaries may have at any time against
any beneficiary or any transferee of any Acceptance (or any Persons or
entities for whom any such beneficiary, transferee or holder may be acting),
the Administrative Agent, any Canadian Lender or any other Person or entity,
whether in connection with any of the BA Documents, the transactions
contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under
any Acceptance proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) Any failure, omission, delay or lack on the part of the
Administrative Agent, any Canadian Lender or any party to any of the BA
Documents to enforce, assert or exercise any right, power or remedy
conferred upon the Administrative Agent, any Canadian Lender or any such
party under this Agreement or any of the BA Documents, or any other acts or
omissions on the part of the Administrative Agent, any Canadian Lender or
any such party;
(vi) Any defense based on the lack of presentment for payment
and any other defense to payment of any amounts due to a Canadian Lender in
respect of any Acceptance accepted by it pursuant to this Agreement which
might exist solely by reason of such Acceptance being held, at the maturity
thereof, by such Canadian Lender in its own right; and
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law or
otherwise of the Company from the performance or observance of any
obligation, covenant or agreement contained in this Section 2.5.
(h) No setoff, counterclaim, reduction or diminution of any obligation
or any defense of any kind or nature which any Borrower has or may have against
the beneficiary or holder of any Acceptance shall be available hereunder to any
Borrower against the Administrative Agent or any Canadian Lender.
SECTION 2.6. REDUCTION AND TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS.
(a) The Borrowers may, upon at least three Business Days' prior notice
to the Administrative Agent, terminate in whole or reduce in part ratably the
unused portions of the respective Revolving Credit Commitments of the Revolving
Credit Lenders; provided, however, that each partial
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reduction shall be in the aggregate amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b) The then current Revolving Credit Commitments shall be reduced on
each date on which a prepayment of Revolving Loans or Swing Loans is made
pursuant to Section 2.10(a) or would be required to be made had the outstanding
Revolving Loans and Swing Loans equaled the Revolving Credit Commitments then in
effect, in each case in the amount of fifty percent (50%) of such prepayment (or
deemed prepayment) (and the Revolving Credit Commitment of each Lender shall be
reduced by its Ratable Portion of such amount); provided, however, that the
requirements of this Section 2.6(b) shall not apply to the Asset Sale
consummated pursuant to Section 6.5(vi).
SECTION 2.7. REPAYMENT OF LOANS.
(a) The Borrowers promise to repay the entire unpaid principal amount
of the Revolving Loans on the Scheduled Termination Date.
(b) The Borrowers promises to repay the Term Loans at the dates and in
the amounts set forth below:
DATE AMOUNT
June 30, 2001 $1,500,000
September 30, 2001 $1,500,000
December 31, 2001 $1,500,000
March 31, 2002 $1,500,000
June 30, 2002 $2,500,000
September 30, 2002 $2,500,000
December 31, 2002 $2,500,000
March 31, 2003 $2,500,000
June 30, 2003 $3,500,000
September 30, 2003 $3,500,000
December 31, 2003 $3,500,000
March 31, 2004 $3,500,000
June 30, 2004 $4,000,000
September 30, 2004 $4,000,000
December 31, 2004 $4,000,000
March 31, 2005 $4,000,000
Term Loan Maturity Date $4,000,000;
provided, however, that the Borrowers shall repay the entire unpaid principal
amount of the Term Loans (including any Term Loans funded on a Facilities
Increase Effective Date) on the Term Loan Maturity Date. In the event that
additional Term Loans are funded on any Facilities Increase Effective Date, the
amount opposite each installment date set forth above occurring after such
Facilities Increase Effective Date shall be increased by an amount equal to (i)
the amount of the Term Loans funded on such Facilities Increase Effective Date
divided by (ii) the number of scheduled installment dates remaining after such
Facilities Increase Effective Date.
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SECTION 2.8. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing Indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain accounts in accordance with
its usual practice in which it will record (i) the amount of each Loan made and,
if a Eurocurrency Rate Loan, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable by the Borrowers to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrowers and each Lender's share thereof, if
applicable.
(c) The entries made in the accounts maintained pursuant to clauses (a)
and (b) of this Section 2.8 shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrowers to repay the Loans in accordance with
their terms.
(d) Notwithstanding any other provision of the Agreement, in the event
that any Lender requests that the Borrowers execute and deliver a promissory
note or notes payable to such Lender in order to evidence the Indebtedness owing
to such Lender by the Borrowers hereunder (including any additional Term Loans
funded on a Facilities Increase Effective Date), the Borrowers will promptly
execute and deliver a Note or Notes to such Lender evidencing any Term Loans and
Revolving Loans, as the case may be, of such Lender, substantially in the forms
of Exhibit B-1 or B-2, respectively.
SECTION 2.9. OPTIONAL PREPAYMENTS.
(a) Revolving Loans. The Borrowers may, upon at least three Business
Days' prior notice to the Administrative Agent, stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of the Revolving Loans in whole or in part; provided, however, that if
any prepayment of any Eurocurrency Rate Loan is made by the Borrowers other than
on the last day of an Interest Period for such Loan, the Borrowers shall also
pay any amounts owing pursuant to Section 2.16(b); and, provided, further, that
each partial prepayment shall be in an aggregate principal amount not less than
$5,000,000 or integral multiples of $1,000,000 in excess thereof. Upon the
giving of such notice of prepayment, the principal amount of Revolving Loans
specified to be prepaid shall become due and payable on the date specified for
such prepayment.
(b) Term Loans. The Borrowers may, upon at least three Business Days'
prior notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, prepay the outstanding principal amount of
the Term Loans, in whole or in part, together with accrued interest to the date
of such prepayment on the principal amount prepaid; provided, however, that if
any prepayment of any Eurocurrency Rate Loan is made by the Borrowers other than
on the last day of an Interest Period for such Loan, the Borrowers shall also
pay any amounts owing pursuant to Section 2.16(b); and, provided, further, that
each partial prepayment shall be in an aggregate amount not less than $5,000,000
or integral multiples of $1,000,000 in excess thereof and that any such partial
prepayment shall be applied to reduce ratably the remaining installments of such
outstanding principal amount of the Term Loans. Upon the giving of such notice
of prepayment, the principal amount of the Term Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
(c) The Borrowers shall have no right to prepay the principal amount of
any Revolving Loan or any Term Loan other than as provided in this Section 2.9.
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SECTION 2.10. MANDATORY PREPAYMENTS.
(a) Upon receipt by the Company or any of its Restricted Subsidiaries
of Net Cash Proceeds arising from an Asset Sale, Property Loss Event or Debt
Issuance, the Borrowers shall immediately prepay the Loans (or provide cash
collateral in respect of Letters of Credit and Bankers' Acceptances) in an
amount equal to 100% of such Net Cash Proceeds; provided, however, that (i) only
Net Cash Proceeds in excess of $2,000,000 in any Fiscal Year shall be required
to prepay Loans pursuant to this Section 2.10(a), (ii) in the case of any Net
Cash Proceeds arising from a Reinvestment Event, the Borrowers shall prepay the
Loans (or provide cash collateral in respect of Letters of Credit and Bankers'
Acceptances) in an amount equal to the Reinvestment Prepayment Amount applicable
to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with
respect to such Reinvestment Event and, pending application of such proceeds as
specified in the Reinvestment Notice, shall pay the same to the Administrative
Agent to be held in a Cash Collateral Account and (iii) only 50% of the Net Cash
Proceeds arising from a Debt Issuance shall be required to be applied as a
prepayment of the Loans (or as cash collateral in respect of Letter of Credit
and Bankers' Acceptances) if the Leverage Ratio as of the last day of the most
recent Fiscal Quarter for which Financial Statements have been delivered
pursuant to Section 5.4(b) is less than 3:00 to 1. Any such mandatory prepayment
shall be applied in accordance with Section 2.10(c) below.
(b) The Borrowers shall prepay the Term Loans within 90 days of the
last day of each Fiscal Year, in an amount equal to 75% of Excess Cash Flow for
such Fiscal Year (or, in the case of Fiscal Year 2001, the period beginning July
1, 2000 and ending on the last day of such Fiscal Year); provided, however, only
50% of such Excess Cash Flow should be required to be applied as a prepayment of
the Term Loans if the Leverage Ratio as of the last day of such Fiscal Year is
less than 3:00 to 1.
(c) Any prepayments made by the Borrowers pursuant to Section 2.10(a)
shall be applied as follows: first, to prepay the outstanding principal balance
of the Term Loans, until such Term Loans shall have been prepaid in full;
second, to repay the outstanding principal balance of the Swing Loans until such
Swing Loans shall have been repaid in full; third, to repay the outstanding
principal balance of the Revolving Loans until such Revolving Loans shall have
been paid in full; and then, to provide cash collateral for any Letter of Credit
Obligations and Bankers' Acceptances Obligations in the manner set forth in
Section 7.3 until all such Letter of Credit Obligations and Bankers' Acceptances
Obligations have been fully cash collateralized in the manner set forth therein.
All prepayments of the Term Loans made pursuant to this Section 2.10 shall be
applied to reduce ratably the remaining installments of the outstanding
principal amount of the Term Loans. All repayments of Revolving Loans and Swing
Loans required to be made pursuant to this Section 2.10 shall result in a
permanent reduction of the Revolving Credit Commitments to the extent provided
in Section 2.6(b). Payments received in respect of any Canadian Revolving Credit
Outstandings shall be distributed to each Canadian Lender in accordance with its
Canadian Ratable Portion.
(d) If at any time, the aggregate principal amount of Revolving Credit
Outstandings exceed the aggregate Revolving Credit Commitments at such time, the
Borrowers shall forthwith prepay the Swing Loans first and then the Revolving
Loans then outstanding in an amount equal to such excess. If any such excess
remains after repayment in full of the aggregate outstanding Swing Loans and
Revolving Loans, the Borrowers shall provide cash collateral for the Letter of
Credit Obligations and Bankers' Acceptances Obligations in the manner set forth
in Section 7.3 to the extent required to eliminate such excess.
(e) If at any time, the aggregate principal amount of Revolving Credit
Outstandings denominated in an Alternate Currency exceeds the applicable
Multicurrency Sublimit, the Borrowers shall forthwith prepay the Revolving Loans
denominated in such Alternate Currency then outstanding in an amount equal to
such excess.
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SECTION 2.11. INTEREST.
(a) Rate of Interest. All Loans and the outstanding amount of all
other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of
such other Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in Section
2.11(c), as follows:
(i) if a Base Rate Loan or such other Obligation, at a rate
per annum equal to the sum of (A) the Base Rate as in effect from time to
time plus (B) the Applicable Margin;
(ii) if a Eurocurrency Rate Loan, at a rate per annum equal to
the sum of (A) the Eurocurrency Rate determined for the applicable Interest
Period plus (B) the Applicable Margin in effect from time to time during
such Eurocurrency Interest Period; and
(iii) if a BA Rate Loan, at a rate per annum equal to the sum of
(A) the BA Rate as in effect from time to time plus (B) the Applicable
Margin.
(b) Interest Payments. (i) Interest accrued on each Base Rate Loan
(other than Swing Loans) shall be payable in arrears (A) on the first day of
each calendar quarter, commencing on the first such day following the making of
such Base Rate Loan, (B) in the case of Base Rate Loans that are Term Loans,
upon the payment or prepayment thereof in full or in part, and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise) of
such Base Rate Loan; (ii) interest accrued on Swing Loans shall be payable in
arrears on the first day of the immediately succeeding calendar quarter; (iii)
interest accrued on each Eurocurrency Rate Loan shall be payable in arrears (A)
on the last day of each Interest Period applicable to such Loan and if such
Interest Period has a duration of more than three months, on each day during
such Interest Period which occurs every three months from the first day of such
Interest Period, (B) upon the payment or prepayment thereof in full or in part,
and (C) if not previously paid in full, at maturity (whether by acceleration or
otherwise) of such Eurocurrency Rate Loan; and (iv) interest accrued on the
amount of all other Obligations shall be payable on demand from and after the
time such Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Default Interest. Notwithstanding the rates of interest specified
in Section 2.11(a) or elsewhere herein, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and BA Rate
Loans and the amount of all other Obligations shall bear interest at a rate
which is two percent per annum in excess of the rate of interest applicable to
such Obligations from time to time.
(d) Canadian Revolving Credit Outstandings. For the purposes of the
Interest Act (Canada) and Canadian Revolving Credit Outstandings hereunder:
(i) whenever any interest or fee under this Agreement is
calculated using a rate based on a year of 360 days or 365 days, such rate
determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (A) the applicable rate based on a year of 360 days or 365
days, as the case may be, (B) multiplied by the actual number of days in the
relevant calendar year, and (C) divided by 360 or 365 as the case may be;
(ii) the principle of deemed reinvestment of interest does not
apply to any interest calculation under this Agreement; and
(iii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.
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SECTION 2.12. CONVERSION/CONTINUATION OPTION.
(a) The Borrowers may elect (i) at any time to convert Base Rate Loans
(other than Swing Loans and Canadian Loans) or any portion thereof to
Eurocurrency Rate Loans, or (ii) at the end of any applicable Interest Period,
to convert Eurocurrency Rate Loans (other than any such Loans denominated in
Euros) or any portion thereof into Base Rate Loans or to continue such
Eurocurrency Rate Loans or any portion thereof for an additional Interest
Period; provided, however, that the aggregate amount of the Eurocurrency Loans
for each Interest Period must be in the amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, or, in the case of Multicurrency
Loans, in an aggregate amount equal to an integral multiple of 100,000 units in
the applicable Alternate Currency and (converted to the Dollar Equivalent
thereof) equal to or greater than $5,000,000. Each conversion or continuation
shall be allocated among the Loans of each Lender in accordance with its Ratable
Portion. Each such election shall be in substantially the form of Exhibit E
hereto (a "Notice of Conversion or Continuation") and shall be made by giving
the Administrative Agent at least three Business Days' prior written notice
specifying (A) the amount and type of Loan being converted or continued, (B) in
the case of a conversion to or a continuation of Eurocurrency Rate Loans, the
applicable Interest Period, and (C) in the case of a conversion, the date of
conversion (which date shall be a Business Day and, if a conversion from
Eurocurrency Rate Loans, shall also be the last day of the applicable Interest
Period).
(b) The Administrative Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation and of the options selected
therein. Notwithstanding the foregoing, no conversion in whole or in part of
Base Rate Loans to Eurocurrency Rate Loans, and no continuation in whole or in
part of Eurocurrency Rate Loans upon the expiration of any applicable Interest
Period, shall be permitted at any time at which (i) a Default or an Event of
Default shall have occurred and be continuing or (ii) the continuation of, or
conversion into, would violate any of the provisions of Section 2.15. If, within
the time period required under the terms of this Section 2.12, the
Administrative Agent does not receive a Notice of Conversion or Continuation
from the Borrowers containing a permitted election to continue any Eurocurrency
Rate Loans for an additional Interest Period or to convert any such Loans, then,
upon the expiration of the applicable Interest Period, such Loans will be
automatically converted to Base Rate Loans or, in the case of Eurocurrency Rate
Loans denominated in Euros, Eurocurrency Rate Loans with an Interest Period of
one month. Each Notice of Conversion or Continuation shall be irrevocable.
SECTION 2.13. FEES.
(a) Unused Commitment Fee. The Borrowers agree to pay to each
Revolving Credit Lender a commitment fee on the average amount by which the
Revolving Credit Commitment of such Lender exceeds such Lender's Ratable Portion
of the Revolving Credit Outstandings less the amount of any outstanding Swing
Loans (the "Unused Commitment Fee") from the date hereof until the Revolving
Credit Termination Date at the Applicable Unused Commitment Fee Rate, payable in
arrears (i) on the last day of each calendar quarter, commencing on the first
such day following the Effective Date, and (ii) on the Revolving Credit
Termination Date.
(b) Letter of Credit Fees. The Borrowers agree to pay the following
amounts with respect to Letters of Credit issued by any Issuer:
(i) to the Administrative Agent for the account of each Issuer
of a Letter of Credit, with respect to each Letter of Credit issued by such
Issuer, an issuance fee as agreed with each Issuer, payable in arrears (A)
on the last day of each calendar quarter, commencing on the first such day
following the issuance of such Letter of Credit, and (B) on the Revolving
Credit Termination Date;
(ii) to the Administrative Agent for the ratable benefit of the
Revolving Credit Lenders or, in the case of Letters of Credit issued for the
account of a Canadian Borrower,
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the Canadian Lenders, with respect to each Letter of Credit, a fee accruing
at the rate per annum equal to the Applicable Margin for Eurocurrency Rate
Loans of the maximum amount available from time to time to be drawn under
such Letter of Credit (in the case of a Letter of Credit denominated in an
Alternate Currency other than Dollars, based on the Dollar Equivalent of the
average undrawn amount thereof), payable in arrears on the last day of each
calendar quarter, commencing on the first such day following the issuance of
such Letter of Credit, and (ii) on the Revolving Credit Termination Date;
provided, however, that during the continuance of an Event of Default, such
fee shall be increased by two percent per annum and shall be payable on
demand; and
(iii) to the Issuer of any Letter of Credit, with respect to the
issuance, amendment or transfer of each Letter of Credit and each drawing
made thereunder, documentary and processing charges in accordance with such
Issuer's standard schedule for such charges in effect at the time of
issuance, amendment, transfer or drawing, as the case may be.
(c) Additional Fees. The Borrowers has agreed to pay to Citicorp and
to the Arranger additional fees, the amount and dates of payment of which are
embodied in the Fee Letter.
SECTION 2.14. PAYMENTS AND COMPUTATIONS.
(a) The Borrowers shall make each payment hereunder (including fees
and expenses) not later than 11:00 a.m. (New York City time) on the day when
due, (i) with respect to Loans and Reimbursement Obligations denominated in
Dollars, in Dollars, and (ii) with respect to Multicurrency Loans or
Reimbursement Obligations denominated in an Alternate Currency, in the Alternate
Currency in which such Loan or the Letter of Credit or Bankers' Acceptance
giving rise to such Reimbursement Obligation was made to the Administrative
Agent at its address referred to in Section 9.8 in immediately available funds
without set-off or counterclaim. The Administrative Agent will promptly
thereafter cause to be distributed immediately available funds relating to the
payment of principal or interest or fees to the Lenders or the Canadian Lenders,
as applicable, in accordance with the application of payments set forth in
clauses (e) and (f) of this Section 2.14, as applicable, for the account of
their respective Applicable Lending Offices; provided, however, that amounts
payable pursuant to Section 2.15(c), 2.16 or 2.17 shall be paid only to the
affected Lender or Lenders and amounts payable with respect to Swing Loans shall
be paid only to the Swing Loan Lender. Payments received by the Administrative
Agent after 11:00 a.m. (New York City time) shall be deemed to be received on
the next Business Day.
(b) All computations of interest based on clause (a)(i) or (b)(i) of
the definition of "Base Rate" or "BA Rate" shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all
other computations of interest and of fees shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest and fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on or principal
of any Eurocurrency Rate Loan to be made in the next calendar month, such
payment shall be made on the immediately preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from a
Borrower to the Lenders prior to the date on which any payment is due hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such
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assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent such
Borrower shall not have made such payment in full to the Administrative Agent,
each Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon at the
Interbank Rate, for the first Business Day, and, thereafter, at the rate
applicable to Base Rate Loans, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent.
(e) Subject to the provisions of clause (f) of this Section 2.14 (and
except as otherwise provided in Section 2.10), all payments and any other
amounts received by the Administrative Agent from or for the benefit of the
Borrowers shall be applied first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have advanced pursuant
to the express provisions of this Agreement on behalf of any Lender, for which
such Administrative Agent has not then been reimbursed by such Lender or the
Borrowers; second, to pay all other Obligations then due and payable; and third,
as the Borrowers so designates. Payments in respect of Swing Loans received by
the Administrative Agent shall be distributed to the Swing Loan Lender; payments
in respect of Revolving Loans received by the Administrative Agent shall be
distributed to each Revolving Credit Lender in accordance with such Lender's
Ratable Portion or, in the case of Revolving Loans made to the Canadian
Borrowers, to each Canadian Lender in accordance with such Lender's Canadian
Ratable Portion; payments in respect of the Term Loans received by the
Administrative Agent shall be distributed to each Term Loan Lender in accordance
with such Lender's Ratable Portion of the Term Loans; and all payments of fees
and all other payments in respect of any other Obligation shall be allocated
among such of the Lenders and Issuers as are entitled thereto, and, if to the
Lenders, in proportion to their respective Ratable Portions, or Canadian Ratable
Portions, in the case of fees relating to Loans, Letters of Credit denominated
in Canadian Dollars and Bankers' Acceptances.
(f) Subject to the Mexican Intercreditor Agreement, after the
occurrence and during the continuance of an Event of Default, the Borrowers
hereby irrevocably waive the right to direct the application of any and all
payments in respect of the Obligations and any proceeds of Collateral, and agree
that the Administrative Agent may, and shall upon either (A) the written
direction of the Requisite Revolving Credit Lenders and the Requisite Term Loan
Lenders or (B) the acceleration of the Obligations pursuant to Section 7.2,
apply all payments in respect of any Obligations and all funds on deposit in the
Cash Collateral Accounts and all other proceeds of Collateral in the following
order, provided, that payments made in an Alternate Currency shall be applied
first to Obligations denominated in such Alternate Currency and that payments
received from the Canadian Borrowers shall be applied first to Obligations owing
by such Borrowers:
(i) first, to pay interest on and then principal of any portion
of the Revolving Loans which the Administrative Agent may have advanced on
behalf of any Lender for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrowers;
(ii) second, to pay interest on and then principal of any Swing
Loan;
(iii) third, to pay Obligations in respect of any expense
reimbursements or indemnities then due the Administrative Agent;
(iv) fourth, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Lenders and the Issuers;
(v) fifth, to pay Obligations in respect of any fees then due
to the Administrative Agent, the Lenders and the Issuers;
(vi) sixth, to pay interest then due and payable in respect of
the Loans, Reimbursement Obligations and Bankers' Acceptance Reimbursement
Obligations;
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(vii) seventh, to pay or prepay principal payments on the Loans,
and Reimbursement Obligations and to provide cash collateral for outstanding
Letter of Credit Undrawn Amounts and unmatured Bankers' Acceptances in the
manner described in Section 7.3, ratably to the aggregate principal amount
of such Loans, Reimbursement Obligations, Letter of Credit Undrawn Amounts,
and unmatured Bankers' Acceptances and Obligations owing with respect to
Hedging Contracts; and
(viii) eighth, to the ratable payment of all other Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in any of the
foregoing clauses first through eighth, the available funds being applied with
respect to any such Obligation (unless otherwise specified in such clause) shall
be allocated to the payment of such Obligations ratably, based on the proportion
of the Administrative Agent's and each Lender's or Issuer's interest in the
aggregate outstanding Obligations described in such clauses; provided further,
however, in the event any Non-Canadian Lender's Ratable Portion of the
Obligations allocable to the Revolving Credit Outstandings referred to in clause
(vi) or (vii) above is less than its interest in the aggregate outstanding
Revolving Credit Outstandings described in such clauses, then the Administrative
Agent shall apply the available funds with respect to any such Revolving Credit
Outstandings first to the Canadian Lenders in accordance with their respective
Canadian Ratable Portions until each Revolving Credit Lender's remaining
interest in such Revolving Credit Outstandings is equal to such Revolving Credit
Lender's Ratable Portion of such Revolving Credit Outstandings (it being
understood and agreed that such reallocation of amounts shall not affect in any
way the amount of available funds that are applied to the Obligations owing to
the Term Loan Lenders in respect of the Term Loans). Notwithstanding the
foregoing proviso, in the event any Non-Canadian Lender's Ratable Portion of the
Revolving Credit Outstandings is less than its interest in the aggregate
outstanding Revolving Credit Outstandings after giving effect to the application
of any proceeds of Collateral from the Canadian Borrowers, the Administrative
Agent may, and shall at the request of any Non-Canadian Lender, require each
Canadian Lender (and each Canadian Lender hereby agrees) to purchase, without
recourse or warranty, an undivided interest and participation in the outstanding
Revolving Credit Outstandings owing to the Non-Canadian Lenders so that, after
giving effect to such purchases, each Revolving Credit Lender's interest in the
Revolving Loan Outstandings is equal to such Revolving Credit Lender's Ratable
Portion of such Revolving Credit Outstandings at the time of such purchase. The
order of priority set forth in clauses first through eighth of this Section
2.14(f) may at any time and from time to time be changed by the agreement of the
Requisite Revolving Lenders and the Requisite Term Loan Lenders without
necessity of notice to or consent of or approval by the Borrowers, any Secured
Party that is not a Lender or Issuing Bank, or any other Person. The order of
priority set forth in clauses first through fifth of this Section 2.14(f) may be
changed only with the prior written consent of the Administrative Agent in
addition to the Requisite Revolving Credit Lenders and the Requisite Term Loan
Lenders.
(g) At the option of the Administrative Agent, principal on the Swing
Loans, Reimbursement Obligations, Bankers' Acceptance Obligations, interest,
fees, expenses and other sums due and payable in respect of the Revolving Loans
and Protective Advances may be paid from the proceeds of Swing Loans or
Revolving Loans; provided however, that such sums due and payable in respect of
Revolving Loans and Protective Advances denominated in Canadian Dollars shall
only be payable from the proceeds of Canadian Loans. The Borrowers hereby
authorizes the Swing Loan Lender to make Swing Loans pursuant to Section 2.3(a)
and the Revolving Credit Lenders to make Revolving Loans and the Canadian
Lenders to make Canadian Loans pursuant to Section 2.2(a), from time to time in
such Swing Loan Lender's, or such Revolving Credit Lender's discretion, which
are in the amounts of any and all principal payable with respect to the Swing
Loans and interest, fees, expenses and other sums payable in respect of the
Revolving Loans, and further authorizes the Administrative Agent to give the
Revolving Credit Lenders notice of any Borrowing with respect to such Swing
Loans and Revolving Loans and to distribute the proceeds of such Swing Loans and
Revolving Loans to pay such amounts. The Borrowers agree that all such Swing
Loans and Revolving Loans so made shall be deemed to have been requested by them
(irrespective of the satisfaction of the conditions in Section 3.2, which
conditions
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the Revolving Credit Lenders irrevocably waive) and directs that all proceeds
thereof shall be used to pay such amounts.
(h) The Borrowers hereby authorize each Lender and each Affiliate of
each Lender, if and to the extent payment owed to such Lender by the Borrowers
is not made when due hereunder, to charge from time to time against any or all
of the Borrowers' accounts with such Lender or Affiliate any amount so due.
SECTION 2.15. SPECIAL PROVISIONS GOVERNING EUROCURRENCY RATE LOANS.
(a) Determination of Interest Rate. The Eurocurrency Rate for each
Interest Period for Eurocurrency Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of
"Eurocurrency Rate." The Administrative Agent's determination shall be presumed
to be correct, absent manifest error, and shall be binding on the Borrowers.
(b) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that: (i) the Administrative Agent determines that adequate and fair means do
not exist for ascertaining the applicable interest rates by reference to which
the Eurocurrency Rate then being determined is to be fixed; or (ii) the
Requisite Lenders notify the Administrative Agent that the Eurocurrency Rate for
any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrowers and the Lenders, whereupon each
Eurocurrency Loan will automatically, on the last day of the current Interest
Period for such Loan, convert into a Base Rate Loan and the obligations of the
Lenders to make Eurocurrency Rate Loans or to convert Base Rate Loans into
Eurocurrency Rate Loans shall be suspended until the Administrative Agent shall
notify the Borrowers that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) Increased Costs. If at any time any Lender shall determine that
the introduction of or any change in or in the interpretation of any law, treaty
or governmental rule, regulation or order (other than any change by way of
imposition or increase of reserve requirements included in determining the
Eurocurrency Rate) or the compliance by such Lender with any guideline, request
or directive from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining any Eurocurrency
Rate Loans, then the Borrowers shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrowers and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(d) Illegality. Notwithstanding any other provision of this Agreement,
if any Lender determines that the introduction of or any change in or in the
interpretation of any law, treaty or governmental rule, regulation or order
after the date of this Agreement shall make it unlawful, or any central bank or
other Governmental Authority shall assert that it is unlawful, for any Lender or
its Eurocurrency Lending Office to make Eurocurrency Rate Loans or to continue
to fund or maintain Eurocurrency Rate Loans, then, on notice thereof and demand
therefor by such Lender to the Borrowers through the Administrative Agent, (i)
the obligation of such Lender to make or to continue Eurocurrency Rate Loans and
to convert Base Rate Loans into Eurocurrency Rate Loans shall be suspended, and
each such Lender shall make a Base Rate Loan as part of any requested Borrowing
of Eurocurrency Rate Loans and (ii) if the affected Eurocurrency Rate Loans are
then outstanding, the Borrowers shall immediately convert each such Loan into a
Base Rate Loan. If at any time after a Lender gives notice under this Section
2.15(d) such Lender determines that it may lawfully make Eurocurrency Rate
Loans, such Lender shall promptly give notice of that determination to the
Borrowers and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The
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Borrowers' right to request, and such Lender's obligation, if any, to make
Eurocurrency Rate Loans shall thereupon be restored.
SECTION 2.16. CAPITAL ADEQUACY AND BREAKAGE COSTS.
(a) Capital Adequacy. If at any time any Lender determines that (a)
the adoption of or any change in or in the interpretation of any law, treaty or
governmental rule, regulation or order after the date of this Agreement
regarding capital adequacy, (b) compliance with any such law, treaty, rule,
regulation, or order, or (c) compliance with any guideline or request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law) shall have the effect of reducing the rate of return on
such Lender's (or any corporation controlling such Lender's) capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit or Bankers' Acceptance to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, compliance or
interpretation, then, upon demand from time to time by such Lender (with a copy
of such demand to the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to such amounts submitted to the
Borrowers and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes absent manifest error.
(b) Breakage Costs. In addition to all amounts required to be paid by
the Borrowers pursuant to Section 2.11, the Borrowers shall compensate each
Lender, upon demand, for all losses, expenses and liabilities (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Eurocurrency Rate Loans or BA Rate Loans to the Borrowers but excluding
any loss of the Applicable Margin on the relevant Loans) which that Lender may
sustain (i) if for any reason a proposed Borrowing, conversion into or
continuation of Eurocurrency Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion or Continuation
given by the Borrowers or in a telephonic request by it for borrowing or
conversion or continuation or a successive Interest Period does not commence
after notice therefor is given pursuant to Section 2.12, (ii) if for any reason
any Eurocurrency Rate Loan or BA Rate Loan is prepaid (including mandatorily
pursuant to Section 2.10) on a date which is not the last day of the applicable
Interest Period, (iii) as a consequence of a required conversion of a
Eurocurrency Rate Loan to a Base Rate Loan as a result of any of the events
indicated in Section 2.15(d), or (iv) as a consequence of any failure by the
Borrowers to repay Eurocurrency Rate Loans or BA Rate Loans when required by the
terms hereof. The Lender making demand for such compensation shall deliver to
the Borrowers concurrently with such demand a written statement as to such
losses, expenses and liabilities, and this statement shall be conclusive as to
the amount of compensation due to that Lender, absent manifest error.
SECTION 2.17. TAXES.
(a) Any and all payments by the Borrowers under each Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, (including, but not limited to, any of the
foregoing which may be imposed in Canada or any political subdivision or taxing
authority thereof or therein, or any federal or other association of or with
which Canada may be a member or associated and specifically including any
withholding made pursuant to Part XIII of the Income Tax Act (Canada) in respect
of any interest payment hereunder) unless the relevant Borrower is required to
do so by law or the interpretation thereof by the relevant taxing authority;
provided, however, that the following will be excluded taxes: (i) in the case of
each Lender and the Administrative Agent (A) taxes measured by its net income,
and franchise taxes imposed on it, by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized and (B) any United States withholding
taxes payable with respect to payments under the Loan Documents under laws
(including any statute, treaty or regulation) in effect on the Effective Date
(or, in the case of an
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Eligible Assignee, the date of the Assignment and Acceptance) applicable to such
Lender or the Administrative Agent, as the case may be, but not excluding any
United States withholding payable as a result of any change in such laws
occurring after the Effective Date (or the date of such Assignment and
Acceptance) and (ii) in the case of each Lender, taxes measured by its net
income, and franchise taxes imposed on it, by the jurisdiction in which such
Lender's Applicable Lending Office is located (all such non-excluded taxes,
levies, imposts, deductions, charges, with Company and liabilities being
hereinafter referred to as "Taxes"). If any Taxes shall be required by law to be
deducted or withheld from or in respect of any sum payable under any Loan
Document to any Lender or the Administrative Agent (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions or withholdings applicable to additional sums payable
under this Section 2.17) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions or
withholdings, (iii) the Borrowers shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law, and (iv) the Borrowers shall deliver to the Administrative Agent
evidence of such payment.
(b) In addition, the Borrowers agree to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies of the United States or any political subdivision thereof or any
applicable foreign jurisdiction, and all liabilities with respect thereto, which
arise from any payment made under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any Loan Document
(collectively, "Other Taxes").
(c) The Borrowers will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.17)
paid by such Lender or the Administrative Agent (as the case may be) and any
liability (including for penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes, the Borrowers will furnish to the Administrative Agent, at its address
referred to in Section 9.8, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.17 shall survive the payment in full of the Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S. Lender
that is a signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Non-U.S. Lender
and from time to time thereafter if requested by the Borrowers or the
Administrative Agent, each Non-U.S. Lender that is entitled at such time to an
exemption from United States withholding tax, or that is subject to such tax at
a reduced rate under an applicable tax treaty, shall provide the Administrative
Agent and the Borrowers with two completed copies of: (i) Form W-8ECI (claiming
exemption from withholding because the income is effectively connected with a
U.S. trade or business) (or any successor form); (ii) Form W-8BEN (claiming
exemption from, or a reduction of, withholding tax under an income tax treaty)
(or any successor form); (iii) in the case of a Non-U.S. Lender claiming
exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from withholding under the portfolio interest exemption)(or successor
form); or (iv) or other applicable form, certificate or document prescribed by
the IRS certifying as to such Non-U.S. Lender's entitlement to such exemption
from United States withholding tax or reduced rate with respect to all payments
to be made to such Non-U.S. Lender under the Loan Documents. Unless the
Borrowers and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payments under any Loan Document to or for
a Non-U.S. Lender are not subject to United States
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withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrowers or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.17 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts which would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.
(h) Each Borrower represents and warrants that, as of the date hereof,
to the best of its knowledge after due inquiry, (i) neither this Agreement nor
the execution or delivery by such Borrower of this Agreement is subject to any
Taxes, and (ii) no payment to be made by any Borrower hereunder or under any
Note is subject to any Taxes.
SECTION 2.18. CRIMINAL RATE OF INTEREST. Notwithstanding any other
provisions of this Agreement, in no event shall the aggregate "interest" (as
defined in Section 347 ("Section 347") of the Criminal Code, Revised Statutes of
Canada, 1985, C-46, as the same shall be amended, replaced or re-enacted from
time to time) payable to the Lenders under this Agreement exceed the effective
annual rate of interest on the "credit advances" (as defined in Section 347)
hereunder lawfully permitted under Section 347 and, if any payment, collection
or demand pursuant to this Agreement in respect of "interest" (as defined in
Section 347) is determined to be contrary to the provisions of Section 347, such
payment, collection or demand shall be deemed to have been made by mutual
mistake of the Lenders and the Borrowers and the amount of such payment or
collection shall be refunded by the Lenders to the Borrowers. For the purposes
of this Agreement, the effective annual rate of interest shall be determined in
accordance with generally accepted actuarial practices and principles over the
term of the Loans on the basis of annual compounding for the lawfully permitted
rate of interest and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by the Administrative Agent for the
account of the Borrowers will be conclusive for the purpose of such
determination in the absence of evidence to the contrary.
SECTION 2.19. SUBSTITUTION OF LENDERS. In the event that (a) (i) any
Lender makes a claim under Section 2.15(c) or Section 2.16(a), or (ii) it
becomes illegal for any Lender to continue to fund or make any Eurocurrency Rate
Loan and such Lender notifies the Borrowers pursuant to Section 2.15(d), or
(iii) the Borrowers are required to make any payment pursuant to Section 2.17
that is attributable to any Lender, or (iv) any Lender is a Non-Funding Lender,
(b) in the case of clause (a)(i) above, as a consequence of increased costs in
respect of which such claim is made, the effective rate of interest payable to
such Lender under this Agreement with respect to its Loans materially exceeds
the effective average annual rate of interest payable to the Requisite Lenders
under this Agreement and (c) Lenders holding at least 75% of the Commitments are
not subject to such increased costs or illegality, payment or proceedings (any
such Lender, an "Affected Lender"), the Borrowers may substitute another
financial institution for such Affected Lender hereunder, upon reasonable prior
written notice (which written notice must be given within 90 days following the
occurrence of any of the events described in clauses (a)(i), (ii), (iii) or
(iv)) by the Borrowers to the Administrative Agent and the Affected Lender that
the Borrowers intend to make such substitution, which substitute financial
institution must be an Eligible Assignee and, if not a Lender, reasonably
acceptable to the Administrative Agent; provided, however, that if more than one
Lender claims increased costs, illegality or right to payment arising from the
same act or condition and such claims are received by the Borrowers within 30
days of each other then the Borrowers may substitute all, but not (except to the
extent the Borrowers have already substituted one of such Affected Lenders
before the Borrowers' receipt of the other Affected Lenders' claim) less than
all, Lenders making such claims. In the event that the proposed substitute
financial institution or other entity is reasonably acceptable to the
Administrative Agent and the written notice was properly issued under this
Section 2.19, the Affected Lender shall sell and the substitute financial
institution or other entity shall purchase, pursuant to an Assignment and
Acceptance, all rights and claims of such Affected Lender under
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the Loan Documents and the substitute financial institution or other entity
shall assume and the Affected Lender shall be relieved of its Commitments and
all other prior unperformed obligations of the Affected Lender under the Loan
Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of any
such unperformed obligations). Upon the effectiveness of such sale, purchase and
assumption (which, in any event shall be conditioned upon the payment in full by
the Borrowers to the Affected Lender in cash of all fees, unreimbursed costs and
expenses and indemnities accrued and unpaid through such effective date), the
substitute financial institution or other entity shall become a "Lender"
hereunder for all purposes of this Agreement having a Revolving Credit
Commitment (if applicable) in the amount of such Affected Lender's Revolving
Credit Commitment assumed by it and such Revolving Credit Commitment (if
applicable) of the Affected Lender shall be terminated, provided that all
indemnities under the Loan Documents shall continue in favor of such Affected
Lender.
SECTION 2.20. FACILITIES INCREASES. The Borrowers may no more
frequently than once in any twelve month period, request the Lenders or other
Eligible Assignees to provide additional Commitments in minimum increments of
$50,000,000 (applied pro rata across the Facilities based on the amount of the
respective Revolving Credit Commitments and Term Loan Commitments on the
Effective Date, or such other allocation as shall be agreed to by the
Administrative Agent and the Requisite Lenders) up to an aggregate amount not in
excess of $100,000,000 (each a "Facilities Increase"); provided, however, that
(i) the Borrowers shall have given the Administrative Agent at least 60 days
notice of its intention to effect a Facilities Increase and the desired amount
of such Facilities Increase, (ii) on the Facilities Increase Effective Date and
after giving effect thereto, the Senior Leverage Ratio for the most recently
ended Fiscal Quarter for which Financial Statements have been delivered pursuant
to Section 5.4(b) is less than or equal to 3.00:1 on a Pro Forma Basis, (iii)
the conditions precedent to a Borrowing set forth in Section 3.2 are satisfied
as of such date, and (iv) an opinion of counsel to the Loan Parties in form and
substance and from counsel satisfactory to the Administrative Agent and
addressed to the Administrative Agent, the Collateral Agent, the Issuers and the
Lenders and addressing such matters as any Lender through the Administrative
Agent may reasonably request shall be delivered to the Administrative Agent. The
Borrowers shall have the right to offer such increase to (x) the Lenders, and
each Lender will have the right, but not the obligation, to commit to all or a
portion of the proposed Facilities Increase or (y) Eligible Assignees; provided,
however, that the minimum additional Commitment of each such Lender or Eligible
Assignee equals or exceeds $5,000,000 and such Lender or Eligible Assignee
executes an Assumption Agreement pursuant to which such Lender or Eligible
Assignee agrees to commit to all or a portion of such Facilities Increase and,
in the case of an Eligible Assignee, to be bound by the terms of this Agreement
as a Lender. On the effective date provided for in the Assumption Agreements
providing for a Facilities Increase (each a "Facilities Increase Effective
Date"), the Revolving Credit Commitments and the Term Loan Commitments will be
increased by the amount committed to by each Lender or Eligible Assignee on the
Facilities Increase Date. In the event there are Lenders and Eligible Assignees
that have committed to a Facilities Increase in excess of the maximum amount
requested (or permitted), then the Administrative Agent shall have the right to
allocate such commitments, first to Lenders and then to Eligible Assignees, on
whatever basis the Administrative Agent determines is appropriate in
consultation with the Company. The Administrative Agent and the Lenders reserve
the right to charge the Company for additional fees to provide such additional
commitments for a Facilities Increase.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF
CREDIT. The effectiveness of this Agreement is subject to the satisfaction of
all of the following conditions precedent:
(a) Certain Documents. The Administrative Agent shall have received on
the Effective Date each of the following, each dated the Effective Date unless
otherwise indicated or agreed
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to by the Administrative Agent, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by the
Borrowers and, for the account of each Lender requesting the same, a Note or
Notes of the Borrowers conforming to the requirements set forth herein;
(ii) the Guaranty, duly executed by the Company and each
Subsidiary Guarantor;
(iii) the Pledge and Security Agreement, duly executed by the
Company and each Subsidiary Guarantor, together with:
(A) evidence satisfactory to the Administrative Agent
that the Collateral Agent (for the benefit of the Secured Parties) has
a valid and perfected first priority security interest in the
Collateral, including (x) such documents duly executed by each Loan
Party as the Administrative Agent may request with respect to the
perfection of its security interests in the Collateral (including
evidence satisfactory to the Administrative Agent that financing
statements under the UCC, patent, trademark and copyright security
agreements and other applicable documents under the laws of any
jurisdiction have been appropriately filed with respect to the
perfection of Liens created by the Pledge and Security Agreement) and
(y) copies of UCC search reports as of a recent date listing all
effective financing statements that name any Loan Party as debtor,
together with copies of such financing statements, none of which shall
cover the Collateral except for those which shall be terminated on the
Effective Date);
(B) share certificates representing all of certificated
Pledged Stock being pledged pursuant to the Pledge and Security
Agreement and stock powers for such share certificates executed in
blank; and
(C) all instruments representing Pledged Notes being
pledged pursuant to the Pledge and Security Agreement duly endorsed in
favor of the Collateral Agent or in blank;
(iv) each Foreign Collateral Document (covering, among other
things, such pledges of the Stock of Foreign Subsidiaries as the
Administrative Agent shall deem appropriate), duly executed by the parties
thereto, together with, if applicable:
(A) evidence satisfactory to the Administrative Agent
that the Collateral Agent (for the benefit of the Secured Parties) has
a valid and perfected first priority security interest in the
Collateral consistent with the provisions set forth in Section 5.8(b),
including (x) such documents duly executed by each Loan Party as the
Administrative Agent may request with respect to the perfection of its
security interests in the Collateral (including evidence satisfactory
to the Administrative Agent that patent, trademark and copyright
security agreements and other applicable documents under the laws of
any jurisdiction have been appropriately filed with respect to the
perfection of Liens created by the applicable Foreign Collateral
Document) and (y) copies of all search reports as of a recent date
listing all effective financing statements that name any Loan Party as
debtor, together with copies of such financing statements, none of
which shall cover the Collateral except for those which shall be
terminated on the Effective Date);
(B) share certificates representing all of certificated
Pledged Stock being pledged pursuant to such Foreign Collateral
Documents and stock powers for such share certificates executed in
blank; and
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(C) all instruments representing Pledged Notes being
pledged pursuant to such Foreign Collateral Documents duly endorsed in
favor of the Collateral Agent or in blank;
(v) the Mortgage Documents together with: (A) title insurance
policies, satisfactory in form and substance to the Administrative Agent,
in its sole discretion; (B) evidence that counterparts of the Mortgage
Documents have been recorded in all places to the extent necessary or
desirable, in the judgment of the Administrative Agent, to create a valid
and enforceable first priority lien on property described therein in favor
of the Collateral Agent for the benefit of the Secured Parties (or in favor
of such other trustee as may be required or desired under local law); and
(C) an opinion of counsel in each state in which any Mortgage Document is
recorded in form and substance and from counsel satisfactory to the
Administrative Agent;
(vi) a favorable opinion of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DLLC, counsel to
the Loan Parties, in substantially the form of Exhibit F-1, (B) counsel to
the Loan Parties in Canada in form and substance and from counsel
satisfactory to the Administrative Agent, in each case addressed to the
Administrative Agent, the Collateral Agent, the Issuers and the Lenders and
addressing such matters as any Lender through the Administrative Agent may
reasonably request and (C) counsel to the Administrative Agent as to the
enforceability of this Agreement and the other Loan Documents to be
executed on the Effective Date;
(vii) a copy of the articles or certificate of incorporation (or
equivalent organizational documents) of each Loan Party (translated into
English if applicable), certified as of a recent date by the applicable
Governmental Authority of the jurisdiction of incorporation of such Loan
Party, together with certificates of such official attesting to the good
standing of each such Loan Party;
(viii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) the names and true signatures of each
officer of such Loan Party who has been authorized to execute and deliver
any Loan Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or
equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party's Board
of Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (D) that there have been no changes in
the certificate of incorporation (or equivalent Constituent Document) of
such Loan Party from the certificate of incorporation (or equivalent
Constituent Document) delivered pursuant to the immediately preceding
clause;
(ix) a certificate of the Chief Financial Officer of each of
the Borrowers, stating that such Borrower is Solvent after giving effect to
the initial Loans and Letters of Credit, the application of the proceeds
thereof in accordance with Section 4.7 and the payment of all estimated
legal, accounting and other fees related hereto and thereto;
(x) a certificate of a Responsible Officer of the Company and
of each of the Borrowing Subsidiaries to the effect that (A) the condition
set forth in Section 3.2(b) has been satisfied, (B) no litigation other
than that listed on Schedule 4.5 shall have been commenced against any Loan
Party or any of its Subsidiaries which, if adversely determined, would have
a Material Adverse Effect and (C) after giving effect to the execution and
delivery of each Loan Document by each Loan Party which is a party thereto
and the incurrence of Indebtedness up to the maximum amount of the
Commitments (whether or not fully incurred on the Effective Date), the
Company and each of its Subsidiaries which are party to the Senior
Subordinated Note Indentures will be in compliance with the terms and
provisions thereof;
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(xi) evidence satisfactory to the Administrative Agent that
the insurance policies required by Section 5.3 and any Collateral Document
are in full force and effect, together with endorsements naming the
Collateral Agent, on behalf of the Secured Parties, as an additional
insured and/or loss payee under all insurance policies to be maintained
with respect to the properties of the Borrowers and its Subsidiaries;
(xii) a pro forma balance sheet of the Company and its
Restricted Subsidiaries as of June 30, 2000 after giving effect to the
transactions contemplated in this Agreement;
(xiii) evidence satisfactory to the Administrative Agent,
including without limitation, legal opinions of the Borrowers' counsel,
that all transactions contemplated pursuant to this Agreement, including
without limitation making of all Loans, Letters of Credit and Bankers'
Acceptances and all transactions contemplated in relation to the Aries
Acquisition, are in compliance with, and do not cause any breach or other
default under, any of the Senior Subordinated Debt Documents;
(xiv) the Mexican Intercreditor Agreement, duly executed by all
parties thereto, together with any documents required in connection
therewith by the Administrative Agent, including without limitation, the
written consent of the requisite Mexican Facility Tranche A Lenders to the
Collateral Documents;
(xv) the Acknowledgment and Consent of Oxford Investment
Group, Inc., duly executed by Oxford Investment Group, Inc.;
(xvi) the Lenders shall have received and be satisfied with
audited financial statements of the Company and its Subsidiaries for the
fiscal period ending March 31, 2000 prepared by PricewaterhouseCoopers LLP
which statements shall be unqualified;
(xvii) there shall have occurred no Material Adverse Change
since March 31, 2000;
(xviii) (A) the Master Assignment Agreement and (B) the
Assignment and Release Agreement, each duly executed by all parties
thereto, together with any documents required in connection therewith by
the Administrative Agent;
(xix) all Liens granted to the Existing Agent and lenders under
the Existing Credit Agreement shall have been assigned to the Collateral
Agent, as agent for the Secured Parties, in form and substance satisfactory
to the Lenders; and
(xx) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(b) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees due and payable on or before the Effective Date
(including all such fees described in the Fee Letter), and all expenses due and
payable on or before the Effective Date.
(c) Consents, Etc. Each of the Company and its Subsidiaries shall have
received all consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained all
consents and authorizations of, and effected all notices to and filings with,
any Governmental Authority, in each case, as may be necessary to allow each of
the Borrowers and their respective Subsidiaries lawfully (A) to execute, deliver
and perform, in all material respects, their respective obligations hereunder,
the Loan Documents to which each of them, respectively, is, or shall be,
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a party and each other agreement or instrument to be executed and delivered by
each of them, respectively, pursuant thereto or in connection therewith, and (B)
to create and perfect the Liens on the Collateral to be owned by each of them in
the manner and for the purpose contemplated by the Loan Documents.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT.
The obligation of each Lender on any date (including the Effective Date) to make
any Loan and of each Issuer on any date (including the Effective Date) to issue
any Letter of Credit is subject to the satisfaction of all of the following
conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit. With
respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing or, in the case of Swing Loans, a duly executed
Swing Loan Request, and with respect to any Letter of Credit, the Administrative
Agent and the Issuer shall have received a duly executed Letter of Credit
Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or issuance, both before and
after giving effect thereto and, in the case of such Loan, to the application of
the proceeds therefrom:
(i) The representations and warranties set forth in Article IV and
in the other Loan Documents shall be true and correct on and as of the
Effective Date and shall be true and correct in all material respects on
and as of any such date after the Effective Date 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; and
(ii) No Default or Event of Default has occurred and is
continuing.
(c) No Legal Impediments. The making of the Loans or the issuance of
such Letter of Credit on such date does not violate any Requirement of Law on
the date of or immediately following such Loan or issuance and is not enjoined,
temporarily, preliminarily or permanently.
(d) Additional Matters. The Administrative Agent shall have received
such additional documents, information and materials as any Lender, through the
Administrative Agent, may reasonably request.
Each submission by the Borrowers to the Administrative Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by the Borrowers of the
proceeds of each Loan requested therein, and each submission by the Borrowers to
an Issuer of a Letter of Credit Request and the issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by the Borrowers as to the matters specified in Section 3.2(b) on the
date of the making of such Loan or the issuance of such Letter of Credit.
SECTION 3.3. CONDITIONS PRECEDENT TO THE ARIES ACQUISITION BORROWING.
The obligation of each Lender to make any Loan which will be used,
either directly or indirectly, to finance the Aries Acquisition is subject to
the satisfaction of all of the conditions precedent set forth in Section 3.2,
after giving effect to the consummation of such acquisition, and to the
following conditions precedent:
(a) Related Documents. The Company shall have delivered to the
Administrative Agent a copy of each Related Document certified as being complete
and correct by a Responsible Officer of the Company and a balance sheet of the
Company and its Restricted Subsidiaries as of June 30, 2000, prepared on a Pro
Forma Basis after giving effect to the Aries Acquisition;
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(b) Conditions Precedent. The Administrative Agent shall be satisfied
that: (i) the terms and conditions of the Aries Acquisition Agreement shall be
satisfactory in form and substance to the Administrative Agent and executed
copies thereof shall have been delivered to the Administrative Agent and the
Lenders, (ii) the Aries Acquisition Agreement and the other Related Documents
shall have been approved by all corporate action of each of the parties thereto,
shall be in full force and effect and there shall not have occurred and be
continuing any material breach or default thereunder, (iii) all conditions
precedent to the consummation of the Aries Acquisition shall have been satisfied
or waived with the consent of the Administrative Agent, (iv) the Aries
Acquisition shall have been consummated in accordance with the Aries Acquisition
Agreement and all applicable Requirements of Law and all representations and
warranties contained in the Aries Acquisition Agreement and the other Related
Documents shall be true and correct in all material respects on the closing date
of the Aries Acquisition, (v) all requirements set forth in Section 6.9 (b) have
been satisfied and (vi) all additional Loan Documents and opinions of counsel
relating thereto and to the Aries Acquisition reasonably requested by the
Administrative Agent shall be in form and substance satisfactory to the
Administrative Agent and the Requisite Lenders and executed copies thereof shall
have been delivered to the Administrative Agent.
(c) Consents. All necessary governmental and third party consents and
approvals necessary in connection with the Aries Acquisition, the Facilities and
the transactions contemplated thereby shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the Lenders)
and shall remain in effect, and all applicable governmental filings have been
made and all applicable waiting periods shall have expired without in either
case any action being taken by any competent authority; and no law or regulation
shall be applicable in the judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the Aries Acquisition, the Facilities
or the transactions contemplated thereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative Agent to
enter into this Agreement, each of the Borrowers, with respect to itself and its
Subsidiaries, represents and warrants to the Lenders, the Issuers and the
Administrative Agent that, on and as of the Effective Date, after giving effect
to the making of the Loans and other financial accommodations on the Effective
Date and on and as of each date as required by Section 3.2(b)(i):
SECTION 4.1. CORPORATE EXISTENCE AND POWER. Each of the Loan Parties
is a corporation or other organization duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation or
formation, and is duly qualified to do business, and is in good standing, in all
additional jurisdictions where such qualification is necessary under applicable
law, except for jurisdictions where their failure to be so qualified would not
have a Material Adverse Effect. Each of the Loan Parties has all requisite
corporate or other organizational power to own or lease the properties used in
its business and to carry on its business as now being conducted and as proposed
to be conducted, and to execute and deliver the Loan Documents to which it is a
party and to engage in the transactions contemplated by this Agreement.
SECTION 4.2. CORPORATE AUTHORITY. The execution, delivery and
performance by each of the Loan Parties of the Loan Documents to which each of
them is a party have been duly authorized by all necessary corporate or other
organizational action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of such Loan
Party's Constituent Documents, or of any contract or undertaking to which such
Loan Party is a party or by which such Loan Party or any of their property may
be bound or affected and will not result in the imposition of any Lien on any of
such Loan Party's property or of any of such Loan Party's property, except for
Permitted Liens.
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SECTION 4.3. BINDING EFFECT. The Loan Documents to which each of the
Loan Parties is a party are the legal, valid and binding obligations of such
Loan Party, respectively, enforceable against each of them in accordance with
their respective terms.
SECTION 4.4. SUBSIDIARIES. Schedule 4.4 hereto correctly sets forth
the corporate name, jurisdiction of incorporation or formation and ownership of
each Subsidiary of the Company. Each such Subsidiary and each corporation or
other organization becoming a Subsidiary of the Company after the date hereof is
and will be a corporation or other organization duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
and will be duly qualified to do business in each additional jurisdiction where
such qualification is or may be necessary under applicable law, except for such
failure which could not have a Material Adverse Effect. Each Subsidiary of the
Company has and will have all requisite corporate or other organizational power
to own or lease the properties used in its business and to carry on its business
as now being conducted and as proposed to be conducted. All outstanding Stock of
each Subsidiary of the Company have been and will be validly issued and are and
will be fully paid and nonassessable and, except with respect to the ▇▇▇▇▇▇▇
Preferred Stock or as disclosed in writing to and approved by the Administrative
Agent from time to time, are and will be owned, beneficially and of record, by
the Company or another Subsidiary of the Company free and clear of any Liens,
except Permitted Liens.
SECTION 4.5. LITIGATION. Except as set forth in Schedule 4.5 hereto,
there is no action, suit or proceeding pending or, to the best of such
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries before or by any court, governmental authority or arbitrator,
which, if adversely decided would have, either individually or collectively, a
Material Adverse Effect and, to the best of such Borrower's knowledge, there is
no basis for any such action, suit or proceeding.
SECTION 4.6. FINANCIAL CONDITION. The consolidated and consolidating
balance sheet of the Company and its Subsidiaries and the consolidated and
consolidating statements of income, retained earnings and cash flows of the
Company and its Subsidiaries for the fiscal year ended March 31, 2000 and
reported on by PricewaterhouseCoopers LLP, independent certified public
accountants, copies of which have been furnished to the Lenders, fairly present,
and the financial statements of the Company and its Subsidiaries delivered
pursuant to Section 5.4 will fairly present, the consolidated financial position
of the Company and its Subsidiaries as at the respective dates thereof, and the
consolidated results of operations of the Company and its Subsidiaries for the
respective periods indicated, all in accordance with GAAP consistently applied
(subject, in the case of said interim statements, to year-end audit
adjustments). Since March 31, 2000 there has been no Material Adverse Change and
there have been no events or developments that in the aggregate have had a
Material Adverse Effect. There is no contingent liability of the Company or any
of its Subsidiaries that is not reflected in such financial statements or in the
notes thereto which would have a Material Adverse Effect. Neither the Company
nor any Restricted Subsidiary is liable directly or indirectly, for any of the
Indebtedness or other liabilities of any Unrestricted Subsidiary or for any
Guaranty Obligation or other contingent liability with respect to any
Unrestricted Subsidiary except as permitted by Section 6.2.
SECTION 4.7. USE OF PROCEEDS. The Borrowers will use the proceeds of
the Loans, Letters of Credit and Acceptances to complete the Aries Acquisition
and to provide working capital from time to time for the Borrowers and their
Restricted Subsidiaries and for general corporate purposes. Neither the Company
nor any of its Subsidiaries extends or maintains, in the ordinary course of
business, credit for the purpose, whether immediate, incidental, or ultimate, of
buying or carrying margin stock (within the meaning of Regulations T, U or X of
the Federal Reserve Board), and no part of the proceeds of any Loan will be used
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such margin stock or maintaining or extending credit to others for
such purpose.
SECTION 4.8. CONSENTS, ETC. Except for such consents, approvals,
authorizations, declarations, registrations or filings delivered by the Company
pursuant to Section 3.1 and, after the
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closing of the Aries Acquisition, Section 3.3, if any, each of which is in full
force and effect, no consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
Person or entity, including without limitation any creditor, lessor or
stockholder of the Company or any of its Subsidiaries, is required on the part
of any Borrower or any Guarantor in connection with the execution, delivery and
performance of the Loan Documents or the transactions contemplated hereby or as
a condition to the legality, validity or enforceability of any of the Loan
Documents.
SECTION 4.9. TAXES. Each of the Borrowers and its Restricted
Subsidiaries have filed all tax returns (federal, state and local) required to
be filed and have paid all taxes shown thereon to be due, including interest and
penalties, or have established adequate financial reserves on their respective
books and records for payment thereof. Neither the Borrowers nor any of their
respective Restricted Subsidiaries know of any actual or proposed tax assessment
or any basis therefor, and no extension of time for the assessment of
deficiencies in any federal or state tax has been granted by such Borrower or
any such Restricted Subsidiary. No Borrower will amend any Tax Sharing Agreement
without the prior approval of the Administrative Agent except to add wholly
owned Restricted Subsidiaries to any such Tax Sharing Agreement.
SECTION 4.10. TITLE TO PROPERTIES. Except as otherwise disclosed in
the latest balance sheet referred to in Section 4.6 or delivered pursuant to
Section 5.4, the Company or one or more of its Restricted Subsidiaries have good
and marketable fee simple title (or the equivalent thereto in any relevant
foreign jurisdiction) to all of the real property, and a valid and indefeasible
ownership or leasehold interest in all of the other properties and assets
(including, without limitation, the collateral subject to the Collateral
Documents to which any of them is a party) reflected in said balance sheet or
subsequently acquired by the Company or any such Restricted Subsidiary. All of
such properties and assets are free and clear of any Lien, except for Permitted
Liens. The Collateral Documents grant a first priority, perfected and
enforceable lien and security interest in all collateral described therein,
subject only to Permitted Liens.
SECTION 4.11. LABOR MATTERS.
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or, to any Borrower's knowledge, threatened against or involving any
Borrower or any of their respective Subsidiaries, other than those which in the
aggregate would not have a Material Adverse Effect.
(b) There are no unfair labor practices, grievances or complaints
pending, or, to any Borrower's knowledge, threatened against or involving any
Borrower or any of their respective Subsidiaries, nor are there any arbitrations
or grievances threatened involving any Borrower or any of their respective
Subsidiaries, other than those which, in the aggregate, if resolved adversely to
such Borrower or such Subsidiary, would not have a Material Adverse Effect.
(c) Except as set forth on Schedule 4.11, as of the Effective Date,
there is no collective bargaining agreement covering any of the employees of any
Borrower or its Subsidiaries.
(d) Schedule 4.11 sets forth as of the date hereof, all material
consulting agreements, executive employment agreements, executive compensation
plans, deferred compensation agreements, employee stock purchase and stock
option plans and severance plans of each Borrower and its Subsidiaries.
SECTION 4.12. ERISA. The Company and its ERISA Affiliates and their
respective Title IV Plans are in compliance in all material respects with those
provisions of ERISA and of the Code which are applicable with respect to any
Title IV Plan. No Prohibited Transaction and no Reportable Event has occurred
with respect to any such Plan which could, in the aggregate, result in any
liability to the Company or any of its ERISA Affiliates in excess of $2,000,000.
None of the Company or any of its
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ERISA Affiliates is an employer with respect to any Multiemployer Plan. The
Company and its ERISA Affiliates have met or are meeting in compliance with all
laws and regulations the minimum funding requirements under ERISA and the Code
with respect to each of their respective Title IV Plans, if any, and have not
incurred any liability to the PBGC or any Title IV Plan. The execution, delivery
and performance of the Loan Documents do not constitute a Prohibited
Transaction. There is no Unfunded Pension Liability, with respect to any Title
IV Plan of the Company or its ERISA Affiliates which would have a Material
Adverse Effect.
SECTION 4.13. DISCLOSURE. No report or other information furnished in
writing by or on behalf of any Borrower or any of its Subsidiaries to any Lender
or the Administrative Agent in connection with the negotiation or administration
of this Agreement contains any material misstatement of fact or omits to state
any material fact or any fact necessary to make the statements contained therein
not misleading in light of the circumstances in which they were made. No Loan
Document nor any other document, certificate, or report or statement or other
information furnished to any Lender or the Administrative Agent by or on behalf
of any Borrower or any of its Subsidiaries in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact in order to make the statements contained herein and
therein not misleading in light of the circumstances in which they were made.
There is no fact known to any Borrower which materially and adversely affects,
or which in the future may (so far as such Borrower can now reasonably foresee)
materially and adversely affect, the business, properties, operations or
condition, financial or otherwise, of such Borrower or any of its Subsidiaries,
which has not been set forth in this Agreement (including without limitation the
schedules hereto) or in the other documents, certificates, statements, reports
and other information furnished in writing to the Lenders by or on behalf of
such Borrower or any of its Subsidiaries in connection with the transactions
contemplated hereby.
SECTION 4.14. ENVIRONMENTAL MATTERS.
(a) Except as disclosed on Schedule 4.14, the operations of the
Company and each of its Subsidiaries have been and are in compliance with all
Environmental Laws, including obtaining and complying with all required
environmental, health and safety Permits, other than non-compliances that in the
aggregate would not have a reasonable likelihood of the Company and its
Subsidiaries incurring Environmental Liabilities and Costs in excess of $200,000
with respect to the Company or any Subsidiary or $500,000 with respect to the
Company and its Subsidiaries, taken as a whole.
(b) Except as disclosed on Schedule 4.14, none of the Company or any
of its Subsidiaries or any real property currently or, to the knowledge of the
Company, previously owned, operated or leased by or for the Company or any of
its Subsidiaries is subject to any pending or, to the knowledge of the Company,
threatened, claim, order, agreement, notice of violation, notice of potential
liability or is the subject of any pending or threatened proceeding or
governmental investigation under or pursuant to Environmental Laws other than
those that in the aggregate would not have a reasonable likelihood of the
Company and its Subsidiaries incurring Environmental Liabilities and Costs in
excess of $200,000 with respect to the Company or any Subsidiary or $500,000
with respect to the Company and its Subsidiaries, taken as a whole.
(c) Except as disclosed on Schedule 4.14, none of the Company or any
of its Subsidiaries is a treatment, storage or disposal facility requiring a
permit under the Resource Conservation and Recovery Act, 42 ▇.▇.▇.▇▇. 6901 et
seq., the regulations thereunder or any state analog.
(d) Except as disclosed on Schedule 4.14, to the knowledge of the
Company, after due and reasonable inquiry, there are no facts, circumstances or
conditions arising out of or relating to the operations or ownership of the
Company or any of its Subsidiaries or any real property owned, operated or
leased by the Company or any of its Subsidiaries which would reasonable be
expected to cause the Company or any of its Subsidiaries to incur Environmental
Liabilities and Costs, which are not specifically included in the financial
information furnished to the Lenders other than those that in the
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aggregate would not have a reasonable likelihood of the Company and its
Subsidiaries incurring Environmental Liabilities and Costs in excess of $200,000
with respect to the Company or any Subsidiary or $500,000 with respect to the
Company and its Subsidiaries, taken as a whole.
(e) As of the date hereof, no Environmental Lien has attached to any
property of the Company or any of its Subsidiaries and, to the knowledge of the
Company, no facts, circumstance or conditions exist that could reasonably be
expected to result in any such Lien attaching to any such property.
(f) The Company and each of its Subsidiaries has provided the Lenders
with copies of all material environmental, health or safety audits, studies,
assessments, inspections, investigations or other environmental health and
safety reports relating to the operations of the Company or any of its
Subsidiaries or any of their real property that are in the possession, custody
or control of the Company or any of its Subsidiaries.
(g) None of the items disclosed on the Schedule 4.14, either
individually, or in the aggregate, will have a Material Adverse Effect.
SECTION 4.15. SOLVENCY. The Company, each Subsidiary and each Loan
Party is individually and together are and, after giving effect to the
transactions described herein and to the incurrence or assumption of all
obligations being incurred or assumed in connection herewith, will be, Solvent.
SECTION 4.16. NO DEFAULTS UNDER CERTAIN AGREEMENTS. Neither the
Company nor any of its Subsidiaries is in default or has received any written
notice of default under or with respect to any contract or agreement to which it
is a party or by which it is bound, including without limitation any agreements
for the incurrence of any indebtedness or any tooling or purchase contracts,
which would have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 4.17. INTELLECTUAL PROPERTY. Set forth on Schedule 4.17 is a
complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof, of
each Borrower and each of its Restricted Subsidiaries showing as of the
Effective Date the jurisdiction in which registered, the registration number and
the date of registration. Each Borrower and each of its Restricted Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, service marks,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property") except for those
the failure to own or license which would not have a Material Adverse Effect. To
any Borrower's knowledge, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Borrower or any of its Restricted Subsidiaries know of any valid basis for any
such claim, the use of such Intellectual Property by each Borrower and each of
its Restricted Subsidiaries does not infringe on the rights of any Person, and,
to the knowledge of such Borrower, no Intellectual Property has been infringed,
misappropriated or diluted by any other Person except for such claims,
infringements, misappropriation and dilutions that, in the aggregate, would not
have a Material Adverse Effect.
SECTION 4.18. PREFERRED STOCK. All ▇▇▇▇▇▇▇ Preferred Stock Documents
are listed on Schedule 4.18 hereto, and true, correct and complete copies of all
▇▇▇▇▇▇▇ Preferred Stock Documents have been delivered to the Administrative
Agent. All dividends, distributions, redemptions and other payments required on
the ▇▇▇▇▇▇▇ Preferred Stock are described on Schedule 4.18. Other than the
▇▇▇▇▇▇▇ Preferred Stock, there is no other Preferred Stock as of the Effective
Date.
SECTION 4.19. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither the Company nor any of its Subsidiaries is an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended or
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a "holding company," or an "affiliate" or a "holding company" or a "subsidiary
company" of a "holding company," as each such term is defined and used in the
Public Utility Holding Company Act of 1935, as amended. Neither the Company nor
any of its Subsidiaries is subject to regulation under any federal or state
statute or regulation which limits its ability to incur Indebtedness.
SECTION 4.20. SENIOR SUBORDINATED DEBT DOCUMENTS. All representations
and warranties of each Borrower and any of its Subsidiaries contained in any
Senior Subordinated Debt Document are true and correct in all material respects.
All agreements, instruments and documents executed or delivered pursuant to the
issuance of the Senior Subordinated Notes are described on Schedule 4.20. All
such Obligations are "Senior Debt " and "Designated Senior Debt" as defined in
the Senior Subordinated Debt Documents and, other than the Obligations, there is
no other "Designated Senior Debt" thereunder. There is no event of default or
event or condition which could become an event of default with notice or lapse
of time or both, under the Senior Subordinated Debt Documents and each of the
Senior Subordinated Debt Documents is in full force and effect. Other than
pursuant to the Senior Subordinated Notes, there is no obligation pursuant to
any Senior Subordinated Debt Document or other document or agreement evidencing
or relating to any Subordinated Debt outstanding or to be outstanding on the
Effective Date which obligates the Company to pay any principal or interest or
redeem any of its Stock or incur any other monetary obligation. The Term Loan is
incurred pursuant to, and in full compliance with, Section 4.3(a) of the Senior
Subordinated Note Indentures, and the Term Loan is classified as Indebtedness
incurred under Section 4.3(a) of the Senior Subordinated Note Indentures and is
not classified as Indebtedness outstanding or incurred pursuant to Section
4.3(b) of the Senior Subordinated Note Indentures; and all other Loans and
Letter of Credit Obligations, up to the full amount of the aggregate Revolving
Credit Commitments, have been or will be incurred pursuant to Section 4.3(b) of
the Senior Subordinated Note Indentures and do not need to meet the requirements
of Section 4.3(a).
SECTION 4.21. UNRESTRICTED SUBSIDIARIES. Other than the guaranties
permitted by Section 6.2(h), neither the Company nor any Restricted Subsidiary
of the Company is liable, directly or indirectly, for any of the Indebtedness or
other liabilities of any Unrestricted Subsidiary or has any Guaranty Obligation
with respect to any Unrestricted Subsidiary, other than trade payables for the
sale of goods in the ordinary course of business and in compliance with Section
6.11. The Total Assets of the Unrestricted Subsidiaries (other than Wackenhut)
as of the Effective Date do not exceed $100,000.
SECTION 4.22. MATERIAL AGREEMENTS. No Borrower or any Subsidiary
thereof is a party to any agreement or instrument or subject to any charter or
other corporate restriction which would have a Material Adverse Effect. No
Borrower or any Subsidiary thereof is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any agreement to which it is a party, which default would have a Material
Adverse Effect.
SECTION 4.23. COMPLIANCE WITH LAWS. Each Borrower and its Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective property except for any failure
to comply with any of the foregoing which would not have a Material Adverse
Effect.
SECTION 4.24. ARIES ACQUISITION. If consummated, all financing and
corporate structure arrangements in relation to the Aries Acquisition, and all
terms of the Aries Acquisition, will be completed as described on Schedule 4.24
and described to the Administrative Agent prior to the Effective Date.
SECTION 4.25. MEXICAN FACILITY. All representations and warranties of
the Company or any of its Subsidiaries contained in any Mexican Facility
Document are true and correct in all material respects. All agreements,
instruments and documents executed or delivered pursuant to the Mexican Facility
are described on Schedule 4.25. There is no event of default or event or
condition which could
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become an event of default with notice or lapse of time or both, under the
Mexican Facility Documents and each of the Mexican Facility Documents is in full
force and effect. The Mexican Facility provides an aggregate of $75,000,000 of
financing and provides sufficient financing to complete the acquisition,
construction and equipping of the Mexican Manufacturing Facility. No commitment
to lend or otherwise advance funds has been terminated under the Mexican
Facility Documents. The maximum amount of the Mexican Facility Tranche A Loans
is $63,000,000. The obligations and liabilities under the Mexican Facility
Tranche A Guaranty do not and will not exceed the outstanding amount of the
Mexican Facility Tranche A Loans and, other than the Mexican Facility Guaranty,
there are no, and will not be any, liabilities or obligations, direct,
contingent or otherwise, of any kind owing by the Company or any of its
Subsidiaries (other than the Mexican Subsidiaries) pursuant to the Mexican
Facility Documents or otherwise under the Mexican Facility.
ARTICLE V
AFFIRMATIVE COVENANTS
The Company and, as applicable, each of the Borrowers covenant and
agree that, until the termination of all Commitments and Letters of Credit and
thereafter until payment in full of the Obligations of the Borrowers under this
Agreement, any Hedging Contract with any Lender and any other Loan Document,
unless the Requisite Lenders shall otherwise consent in writing, it shall, and
shall cause each of its Restricted Subsidiaries to:
SECTION 5.1. PRESERVATION OF CORPORATE EXISTENCE, ETC. Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and its qualification as a foreign corporation or
other organization in good standing in each jurisdiction in which such
qualification is necessary under applicable law, and the rights, licenses,
permits (including those required under Environmental Laws), franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
businesses, except to the extent any of the foregoing would not have a Material
Adverse Effect; and defend all of the foregoing against all claims, actions,
demands, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority.
SECTION 5.2. COMPLIANCE WITH LAWS, ETC. Comply in all respects with
all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time,
except to the extent any of the foregoing would not have a Material Adverse
Effect; and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income, revenues or
property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise, which, if unpaid,
might give rise to Liens upon such properties or any portion thereof, except to
the extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of the Company
or the appropriate Restricted Subsidiary in conformity with GAAP.
SECTION 5.3. MAINTENANCE OF PROPERTIES; INSURANCE. (a) Maintain,
preserve and protect all property that is material to the conduct of the
business of the Company or any of its Restricted Subsidiaries and keep such
property in good repair, working order and condition 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 at all times in
accordance with customary and prudent business practices for similar businesses,
except to the extent any of the foregoing would not have a Material Adverse
Effect; (b) maintain, preserve and protect all rights, permits, licenses,
approvals and privileges (including all Permits) which are used or useful or
necessary in the conduct of its business, and all Intellectual Property with
respect to its business; except where the failure to so maintain, preserve and
protect would not in the
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aggregate have a Material Adverse Effect; (c) maintain in full force and effect
insurance with responsible and reputable insurance companies or associations in
such amounts, on such terms and covering such risks, including fire and other
risks insured against by extended coverage, as is usually carried by companies
engaged in similar businesses and owning similar properties similarly situated
and maintain in full force and effect public liability insurance, insurance
against claims for personal injury or death or property damage occurring in
connection with any of its activities or any properties owned, occupied or
controlled by it, in such amount as it shall reasonably deem necessary, and
maintain such other insurance as may be required by law or as may be reasonably
requested by the Requisite Lenders for purposes of assuring compliance with this
Section 5.3; and (d) cause all such insurance to name the Collateral Agent on
behalf of the Secured Parties as additional insured or loss payee, as
appropriate, and to provide that no cancellation, material addition in amount or
material change in coverage shall be effective until after 30 days' written
notice thereof to the Administrative Agent.
SECTION 5.4. REPORTING REQUIREMENTS. Furnish to the Lenders and the
Administrative Agent the following:
(a) Promptly and in any event within three calendar days after
becoming aware of the occurrence of (i) any Default or Event of Default, (ii)
the commencement of any material litigation against, by or affecting the Company
or any of its Restricted Subsidiaries, and any material developments therein, or
(iii) entering into any material Contractual Obligation that is not entered into
in the ordinary course of business or (iv) any development in the business or
affairs of the Company or any of its Restricted Subsidiaries which has resulted
in or which is likely in the reasonable judgment of the Company, to result in a
Material Adverse Effect, a statement of a Responsible Officer of the Company
setting forth details of each such Default or Event of Default or such
litigation, material Contractual Obligation or development and the action which
the Company or such Subsidiary, as the case may be, has taken and proposes to
take with respect thereto;
(b) As soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of the Company, the consolidated and
consolidating balance sheets of the Company and its Restricted Subsidiaries as
of the end of such Fiscal Quarter, and the related consolidated and
consolidating statements of income, retained earnings and changes in cash flows
for the period commencing at the end of the previous Fiscal Year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to year-end
audit adjustments) by the Chief Financial Officer or Treasurer of the Company as
having been prepared in accordance with GAAP, together with a certificate of a
Responsible Officer of the Company stating (i) that no Default or Event of
Default has occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement setting forth the details thereof and
the action which the Company has taken and proposes to take with respect
thereto, and (ii) that a computation (which computation shall accompany such
certificate and shall be in reasonable detail) showing a calculation of Leverage
Ratio for purposes of determining the Applicable Margin and the Applicable
Unused Commitment Fee Rate and compliance with Section 6.1 is in conformity with
the terms of this Agreement;
(c) As soon as available and in any event within 90 days after the end
of each Fiscal Year, a copy of the consolidated balance sheet of the Company and
its Subsidiaries as of the end of such Fiscal Year and the related consolidated
statements of income, retained earnings and changes in cash flows of the Company
and its Subsidiaries for such Fiscal Year, with a customary audit report of
PricewaterhouseCoopers LLP, or other independent certified public accountants
selected by the Company and acceptable to the Administrative Agent, without
qualifications unacceptable to the Administrative Agent, and including a
unaudited schedule in form acceptable to the Administrative Agent prepared by
such accountants setting forth the consolidating balance sheet of the Company
and its Restricted Subsidiaries as of the end of such Fiscal Year and the
related consolidating statements of income, retained earnings and changes in
cash flows of the Company and its Restricted Subsidiaries for such Fiscal Year,
together with a certificate of a Responsible Officer of the Company stating (A)
that no Default or Event of
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Default has occurred and is continuing and, if such a Default or Event of
Default exists and is continuing, a statement setting forth the nature and
status thereof, and (B) that a computation (which computation shall accompany
such certificate and shall be in reasonable detail) showing a calculation of
Leverage Ratio for purposes of determining the Applicable Margin and the
Applicable Unused Commitment Fee Rate and compliance with Section 6.1 is in
conformity with the terms of this Agreement and showing such other matters as
required by the Administrative Agent from time to time, all in form and
substance satisfactory to the Administrative Agent;
(d) Promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements which the Company or any of
its Subsidiaries sends to or files with any of their respective security holders
or any securities exchange or the Securities and Exchange Commission or any
successor agency thereof;
(e) As soon as available and in any event at least 30 days prior to
the end of each Fiscal Year, copies of preliminary capital and operating budgets
and financial forecasts for the Company and its Subsidiaries for each Fiscal
Year through the Term Loan Maturity Date, and as soon as available in any event
within 30 days after the end of each Fiscal Year of the Company, copies of the
final capital and operating budgets and financial forecasts for the Company and
its Subsidiaries for such Fiscal Year, in each case prepared on both a
consolidated and consolidating basis and for a twelve-month period (or more
frequent period if so prepared by the Company in the ordinary course) by or
under the direction of the Chief Financial Officer or Treasurer of the Company
in form and detail satisfactory to the Administrative Agent, and, promptly and
in any event within 10 days after preparation thereof, copies of any material
revisions to such budgets and forecasts;
(f) Promptly and in any event within 10 calendar days after receiving
or becoming aware thereof (A) a copy of any notice of intent to terminate any
Title IV Plan of the Company, any of its Subsidiaries or any ERISA Affiliate
filed with the PBGC, (B) a statement of the Chief Financial Officer or Treasurer
of the Company setting forth the details of the occurrence of any Reportable
Event with respect to any such Title IV Plan, (C) a copy of any notice that the
Company, any of its Subsidiaries or any ERISA Affiliate may receive from the
PBGC relating to the intention of the PBGC to terminate any such Title IV Plan
or to appoint a trustee to administer any such Title IV Plan, or (D) a copy of
any notice of failure to make a required installment or other payment within the
meaning of Section 412(n) of the Code or Section 302(f) of ERISA with respect to
any such Title IV Plan;
(g) Promptly and in any event within 10 days after receipt, a copy of
any management letter or comparable analysis prepared by the auditors for the
Company or any of its Subsidiaries;
(h) Promptly after the sending or filing thereof, copies of all
reports, financial statements and other documents which the Company or any of
its Subsidiaries is required to deliver pursuant to the Mexican Facility
Documents;
(i) Promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the Company or
any of its Restricted Subsidiaries or any of its Unrestricted Subsidiaries with
respect to which the Company or any of its Restricted Subsidiaries has any
Guaranty Obligation or other contingent liability as any Lender or the
Administrative Agent may from time to time reasonably request;
(j) Promptly after the commencement thereof, the Company shall give
the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator, affecting any Borrower or any of the Company's Subsidiaries, which
in the reasonable judgment of the Company or any Subsidiary, expose any Borrower
or any Subsidiary to liability in an amount aggregating $200,000 or more or
which, if adversely determined, could have a Material Adverse Effect;
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(k) Promptly after becoming aware of the same, the Company shall give
the Administrative Agent written notice of (a) any material labor dispute to
which any Borrower or any of the Company's Subsidiaries is or may become a
party, including any strikes, lockouts or other disputes relating to any of such
Person's plants and other facilities, and (b) any Worker Adjustment and
Retraining Notification Act or related liability incurred with respect to the
closing of any plant or other facility of any of such Person;
(l) Upon the request of any Lender, through the Administrative Agent,
the Company will provide copies of all federal, state, local and foreign tax
returns and reports filed by the Company or any of its Subsidiaries in respect
of taxes measured by income (excluding sales, use and like taxes);
(m) Prior to any Asset Sale anticipated to generate in excess of
$2,000,000 (or its Dollar Equivalent) in Net Cash Proceeds, the Company shall
send the Administrative Agent a notice (a) describing such Asset Sale or the
nature and material terms and conditions of such transaction and (b) stating the
estimated Net Cash Proceeds anticipated to be received by the Company or any of
its Subsidiaries;
(n) The Company shall provide written notice to the Administrative
Agent promptly and in any event within 10 days of any Borrower or any Subsidiary
learning of any of the following:
(i) that any Loan Party is or may be liable to any Person as a
result of a Release or threatened Release which could reasonably be
expected to subject such Loan Party to Environmental Liabilities and Costs
of $100,000 or more;
(ii) the receipt by any Loan Party of notification that any real
or personal property of such Loan Party is or is reasonably likely to be
subject to any Environmental Lien;
(iii) the receipt by any Loan Party of any notice of violation of
or potential liability under, or knowledge by such Loan Party that there
exists a condition which could reasonably be expected to result in a
violation of or liability under any Environmental Law, except for
violations and liabilities the consequence of which in the aggregate would
have no reasonable likelihood of subjecting the Loan Parties collectively
to Environmental Liabilities and Costs of $100,000 or more;
(iv) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under any
Environmental Law, which in the aggregate, if adversely determined, would
have a reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs of $100,000 or more;
(v) any proposed acquisition of stock, assets or real estate, or
any proposed leasing of property, or any other action by any Loan Party or
any of its Subsidiaries other than those the consequences of which in the
aggregate have reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs of $100,000 or less;
(vi) any proposed action by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws which in the
aggregate have a reasonable likelihood of requiring the Loan Parties to
obtain additional environmental, health or safety Permits or make
additional capital improvements to obtain compliance with Environmental
Laws that in the aggregate would cost $100,000 or more or subject the Loan
Parties to additional Environmental Liabilities and Costs of $100,000 or
more; and
(vii) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report delivered pursuant to this Agreement.
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SECTION 5.5. ACCOUNTING; ACCESS TO RECORDS, BOOKS, ETC. Maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with GAAP and to comply with the requirements of this Agreement and, at any
reasonable time and from time to time, (i) during regular business hours, permit
any Lender or the Administrative Agent or any agents or representatives thereof
to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Company and its Subsidiaries, and
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with their respective directors, officers, employees and
independent auditors, and by this provision the Company hereby authorizes such
Persons to discuss such affairs, finances and accounts with any Lender or the
Administrative Agent and (ii) during regular business hours, permit the
Administrative Agent or any of its agents or representatives to conduct a
comprehensive field audit of its and its Subsidiaries' books, records,
properties and assets, including without limitation all collateral subject to
the Collateral Documents, provided that prior to an Event of Default no more
than one such field audit (exclusive of any field audits prior to the Effective
Date, which are at the expense of the Borrowers) per fiscal year shall be at the
expense of the Borrowers.
SECTION 5.6. MAINTENANCE OF BUSINESS LINES. Maintain all principal
lines of business in which the Company or any of its Restricted Subsidiaries is
presently engaged.
SECTION 5.7. ENVIRONMENTAL MATTERS.
(a) The Company shall, and shall cause any Subsidiary to, comply in
all material respects with Environmental Laws and, without limiting the
foregoing, the Company shall, at its sole cost and expense, upon receipt of any
notification or otherwise obtaining knowledge of any Release or other event that
has any reasonable likelihood of resulting in the Company and its Subsidiaries
incurring Environmental Liabilities and Costs in excess of $100,000, (i) conduct
or pay for consultants to conduct, tests or assessments of environmental
conditions at such operations or properties, including the investigation and
testing of subsurface conditions and (ii) take such Remedial Action,
investigational or other action as required by Environmental Laws or as any
Governmental Authority requires or as is appropriate and consistent with good
business practice to address the Release or event; subject to Loan Party's right
to appeal or contest such requirements.
(b) The Company shall conduct periodic reviews of its operations and
properties and those of its Subsidiaries to ensure compliance with the
environmental provisions of this Agreement.
(c) The Company and its Subsidiaries shall cause any real property
owned, operated or leased by the Company or its Subsidiaries (the "Property") to
be kept free of Hazardous Materials except to the extent such Hazardous
Materials are stored and/or used in compliance with applicable Environmental
Laws and except as provided on Schedule 4.14 and, without limiting the
foregoing, not cause or permit such Property or any portion thereof to be used
to generate, manufacture, refine, transport, treat, store, handle, dispose of,
transfer, produce or process Hazardous Materials except in compliance with all
applicable Environmental Laws; and not cause or permit, as a result of any
intentional or unintentional act or omission on the part of the Company, its
Subsidiaries, or any tenant, subtenant, or occupant, a Release of Hazardous
Materials on, under or about the Property or any portion thereof or onto any
other contiguous property in violation of Environmental Laws, further, the
Company and its Subsidiaries shall take such Remedial Action, investigational or
other action as required by Environmental Laws or as any Governmental Authority
requires or as is appropriate and consistent with good business practice to
address those matters disclosed on Schedule 4.14.
(d) The Company shall provide the Administrative Agent with copies of
all reports, investigations, sampling results or other written documentation
prepared by or for the Company or its subsidiaries relating to Releases of
Hazardous Materials, to the extent requested by the Administrative Agent.
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(e) If the Company fails to conduct an assessment, investigation or
remediation required under this Section 5.7 to the satisfaction of the
Administrative Agent and the Requisite Lenders or fails to provide
Administrative Agent with copies of the written documentation referenced above,
the Administrative Agent may at its option and at the expense of Company conduct
such assessment, investigation, or remediation; provided that Agent provides
notice to Company of its intent to conduct such work.
SECTION 5.8. ADDITIONAL COLLATERAL AND GUARANTIES.
(a) At least 15 Business Days prior to (i) entering into any real
property lease (other than a renewal of an existing real property lease) for the
principal place of business and chief executive office of the Company or any
other Restricted Subsidiary or any other real property lease (including any
renewal) in which the annual rental payments are anticipated to equal or exceed
$1,000,000 or (ii) acquiring of any material owned real property, the Company
shall, and shall cause such Restricted Subsidiary to, provide the Administrative
Agent written notice thereof. Upon written request of the Administrative Agent,
the Company shall, and shall cause such Restricted Subsidiary to, execute and
deliver to the Administrative Agent, immediately upon the acquisition of any
such leased or owned real property, a mortgage, deed of trust, assignment or
other appropriate instrument evidencing a Lien in favor of the Collateral Agent
for the benefit of the Secured Parties, upon any such lease or real property,
together with such title policies, certified surveys, and local counsel opinions
with respect thereto and such other agreements, documents and instruments which
the Administrative Agent deems necessary or desirable, the same to be in form
and substance satisfactory to the Administrative Agent and to be subject only to
(i) Permitted Liens and (ii) such other Liens as the Administrative Agent may
reasonably approve.
(b) To the extent not delivered to the Administrative Agent on or
before the Effective Date, the Borrowers agree promptly to (i) execute and
deliver to the Administrative Agent such amendments to the Collateral Documents
as the Administrative Agent deems necessary or advisable in order to grant to
the Collateral Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Stock and Stock Equivalents and other debt
Securities of any Material Subsidiary which are owned by the Borrowers or any of
its Restricted Subsidiaries and requested to be pledged by the Administrative
Agent; provided, however, that the Stock of any Restricted Subsidiary shall be
pledged to the Collateral Agent only to the extent such pledge of Stock would
not result in material adverse tax consequences to the Company and its
Restricted Subsidiaries, taken as a whole; provided further, however, that prior
to the Canadian Subsidiary Release Date, 100% of the Stock of any Restricted
Subsidiary that is a Canadian Subsidiary shall be pledged pursuant to this
clause (b), (ii) deliver to the Administrative Agent the certificates (if any)
representing such Stock and Stock Equivalents and other debt Securities,
together with (A) in the case of such certificated Stock and Stock Equivalents,
undated stock powers endorsed in blank, and (B) in the case of such certificated
debt Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of the Borrowers or such Subsidiary, as the case may be,
(iii) in the case of any such new Material Subsidiary that is a Domestic
Subsidiary cause such new Material Subsidiary (A) to become a party to the
Guaranty and the applicable Collateral Documents and (B) to take such actions
necessary or advisable to grant to the Collateral Agent for the benefit of the
Secured Parties a perfected security interest in the Collateral described in the
Collateral Documents with respect to such new Material Subsidiary, including the
filing of Uniform Commercial Code financing statements in such jurisdictions as
may be required by the Collateral Documents or by law or as may be reasonably
requested by the Administrative Agent, (iv) in the case of any Restricted
Subsidiary acquired pursuant to Section 6.9(a), take such actions necessary or
advisable to grant to the Collateral Agent for the benefit of the Secured
Parties a perfected security interest in the Stock and Stock Equivalents, other
debt Securities and property pledged to the Company pursuant to the provisions
of Section 6.9(a), as may be reasonably requested by the Administrative Agent
and (v) if requested by the Administrative Agent, deliver to the Administrative
Agent and Collateral Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent, notwithstanding the
foregoing, on the later of (x) the thirtieth day after the Effective Date, or
such later date as consented to by the Administrative Agent and (y) the
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closing of the Aries Acquisition, OASP II, Inc. shall pledge all of the Stock
and Stock Equivalents and other debt Securities of the Acquirer to the
Collateral Agent pursuant to the provisions of Section 6.9(b).
SECTION 5.9. TERMS OF OTHER INDEBTEDNESS. If at any time any Borrower
or Guarantor shall enter into or be a party to any instrument or agreement with
respect to any Indebtedness which in the aggregate, together with any related
Indebtedness, exceeds $500,000, including all such instruments or agreements in
existence as of the date hereof and all such instruments or agreements entered
into after the date hereof, relating to or amending any terms or conditions
applicable to any of such Indebtedness which includes covenants, terms,
conditions or defaults not substantially provided for in this Agreement or more
favorable to the lender or lenders thereunder than those provided for in this
Agreement, then the Company shall promptly so advise the Administrative Agent
and the Lenders. Thereupon, if the Administrative Agent shall request, upon
notice to the Borrowers, the Administrative Agent and the Lenders shall enter
into an amendment to this Agreement or an additional agreement (as the
Administrative Agent may request), providing for substantially the same
covenants, terms, conditions and defaults as those provided for in such
instrument or agreement to the extent required and as may be selected by the
Administrative Agent. In addition to the foregoing, any covenants or defaults or
similar provisions (which include without limitation any provisions requiring
any mandatory prepayments or defeasance under the Senior Subordinated Debt
Documents or the Mexican Facility Documents) contained in any Senior
Subordinated Debt Document or Mexican Facility Documents not substantially
provided for in this Agreement or more favorable to the holders of Subordinated
Debt or Mexican Facility Obligations issued in connection therewith are hereby
incorporated by reference into this Agreement to the same extent as if set forth
fully herein, and no subsequent amendment, waiver, termination or modification
thereof shall affect any such covenants, terms, conditions or defaults as
incorporated herein.
SECTION 5.10. RESTRICTED AND UNRESTRICTED SUBSIDIARIES. No Borrower or
any Restricted Subsidiary of the Company shall be liable at any time, directly
or indirectly, for any of the Indebtedness or other liabilities of any such
Unrestricted Subsidiary or for any Guaranty Obligation with respect to any
Unrestricted Subsidiary except as permitted by Section 6.2. No Restricted
Subsidiary may be designated as an Unrestricted Subsidiary at any time without
the prior written approval of the Administrative Agent and the Requisite
Lenders. Any Unrestricted Subsidiary may be designated as a Restricted
Subsidiary by the Company at any time provided that such designation is approved
by the Administrative Agent. Neither any Mexican Subsidiary, the Danish Holding
Company, the French Holding Company, Wackenhut, Cofimeta nor any of their
Subsidiaries is or will be a guarantor or otherwise directly or contingently
liable for any of the Indebtedness or other obligations pursuant to the Senior
Subordinated Debt Documents, and the Borrowers are and will be at all times in
compliance with all terms and conditions under the Senior Subordinated Debt
Documents.
SECTION 5.11. FURTHER ASSURANCES. Execute and deliver, and cause each
Restricted Subsidiary of the Company to execute and deliver, within 30 days
after request therefor by the Requisite Lenders or the Administrative Agent, all
further instruments and documents and take all further action that may be
necessary or desirable, or that the Administrative Agent may request, in order
to give effect to, and to aid in the exercise and enforcement of the rights and
remedies of the Lenders, the Administrative Agent and the Collateral Agent
under, the Loan Documents, including without limitation causing each lessor of
real property to the Company or any of its Restricted Subsidiaries to execute
and deliver to the Administrative Agent, prior to or upon the commencement of
any tenancy, an agreement in form and substance acceptable to the Lenders and
the Administrative Agent duly executed on behalf of such lessor waiving any
distraint, lien and similar rights with respect to any property subject to the
Collateral Documents and agreeing to permit the Lenders and the Collateral Agent
to enter such premises in connection therewith. The Company further agrees to
take all necessary action to ensure that the Administrative Agent and the
Lenders may rely on the audited financial statements of the Company and its
Subsidiaries, including without limitation any necessary acknowledgments or
other consents from the Company's auditors as may be required under applicable
law.
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SECTION 5.12. POST CLOSING MATTERS. Each Borrower shall, and shall
cause each of its Restricted Subsidiaries to, satisfy the requirements set forth
on Schedule 5.12 on or before the date set forth opposite such requirement or
such later date as consented to by the Administrative Agent.
ARTICLE VI
NEGATIVE COVENANTS
Until the termination of all Commitments and Letters of Credit and
thereafter until payment in full of the Obligations of the Borrowers under this
Agreement, any Hedging Contract with any Lender and any other Loan Document, the
Company, and as applicable, each of the Borrowers, agree that, unless the
Requisite Lenders shall otherwise consent in writing, it shall not, and shall
not permit any of its Restricted Subsidiaries to:
SECTION 6.1. FINANCIAL COVENANTS. For purposes of computing the
Leverage Ratio and the Interest Coverage Ratio, pursuant to this Section 6.1,
such ratios (and any financial calculations or components required to be made or
included therein) shall be determined on a Pro Forma Basis.
(a) Leverage Ratio. Fail to maintain a Leverage Ratio, as determined
as of the last day of each Fiscal Quarter set forth below, for the four Fiscal
Quarters ending on such day, of not more than the maximum ratio set forth
opposite such Fiscal Quarter:
---------------------------------------- --------------------------
FISCAL QUARTER ENDING MAXIMUM LEVERAGE RATIO
---------------------------------------- --------------------------
September 30, 2000 5.25 to 1
---------------------------------------- --------------------------
December 31, 2000 5.25 to 1
---------------------------------------- --------------------------
March 31, 2001 5.00 to 1
---------------------------------------- --------------------------
June 30, 2001 5.00 to 1
---------------------------------------- --------------------------
September 30, 2001 5.00 to 1
---------------------------------------- --------------------------
December 31, 2001 4.75 to 1
---------------------------------------- --------------------------
March 31, 2002 4.50 to 1
---------------------------------------- --------------------------
June 30, 2002 4.50 to 1
---------------------------------------- --------------------------
September 30, 2002 4.50 to 1
---------------------------------------- --------------------------
December 31, 2002 4.50 to 1
---------------------------------------- --------------------------
March 31, 2003 4.25 to 1
---------------------------------------- --------------------------
June 30, 2003 4.25 to 1
---------------------------------------- --------------------------
September 30, 2003 4.25 to 1
---------------------------------------- --------------------------
December 31, 2003 4.25 to 1
---------------------------------------- --------------------------
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March 31, 2004 4.00 to 1
---------------------------------------- --------------------------
June 30, 2004 4.00 to 1
---------------------------------------- --------------------------
September 30, 2004 4.00 to 1
---------------------------------------- --------------------------
December 31, 2004 4.00 to 1
---------------------------------------- --------------------------
March 31, 2005 3.75 to 1
---------------------------------------- --------------------------
June 30, 2005 3.75 to 1
---------------------------------------- --------------------------
(b) Interest Coverage Ratio. Fail to maintain an Interest Coverage
Ratio, as determined as of the last day of each Fiscal Quarter set forth below,
for the four Fiscal Quarters ending on such day, of at least the minimum ratio
set forth opposite such Fiscal Quarter:
--------------------------------------- --------------------------
FISCAL QUARTER ENDING MINIMUM INTEREST
COVERAGE RATIO
--------------------------------------- --------------------------
September 30, 2000 2.00 to 1
--------------------------------------- --------------------------
December 31, 2000 2.00 to 1
--------------------------------------- --------------------------
March 31, 2001 2.00 to 1
--------------------------------------- --------------------------
June 30, 2001 2.00 to 1
--------------------------------------- --------------------------
September 30, 2001 2.10 to 1
--------------------------------------- --------------------------
December 31, 2001 2.10 to 1
--------------------------------------- --------------------------
March 31, 2002 2.15 to 1
--------------------------------------- --------------------------
June 30, 2002 2.25 to 1
--------------------------------------- --------------------------
September 30, 2002 2.25 to 1
--------------------------------------- --------------------------
December 31, 2002 2.25 to 1
--------------------------------------- --------------------------
March 31, 2003 2.35 to 1
--------------------------------------- --------------------------
June 30, 2003 2.50 to 1
--------------------------------------- --------------------------
September 30, 2003 2.50 to 1
--------------------------------------- --------------------------
December 31, 2003 2.50 to 1
--------------------------------------- --------------------------
March 31, 2004 2.50 to 1
--------------------------------------- --------------------------
June 30, 2004 2.75 to 1
--------------------------------------- --------------------------
September 30, 2004 2.75 to 1
--------------------------------------- --------------------------
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December 31, 2004 2.75 to 1
--------------------------------------- --------------------------
March 31, 2005 2.75 to 1
--------------------------------------- --------------------------
June 30, 2005 3.00 to 1
--------------------------------------- --------------------------
(c) Capital Expenditures. Acquire or contract to acquire any fixed
asset or make any other Capital Expenditure if the aggregate purchase price and
other acquisition costs of all such fixed assets acquired and other Capital
Expenditures made by the Company or any of its Restricted Subsidiaries during
any Fiscal Year set forth below would exceed, on a consolidated basis, the
amount set forth opposite such Fiscal Year, plus the sum of (i) 20% of the net
book value, or, if appraisals of such fixed assets have been obtained, 15% of
the orderly liquidation value of such fixed assets which consist of equipment
and of the fair market value of real property which consists of real estate (in
each case, as determined by an appraisal acceptable to the Administrative Agent)
acquired in a Permitted Acquisition (other than the Aries Acquisition), to be
added as of the effective date of such Acquisition (and on a pro rata basis for
the Fiscal Year in which such Acquisition occurs), plus (ii) the amount of
Capital Expenditures allowed for the previous Fiscal Year (without giving effect
to any increase in the amount thereof caused by this clause (ii)), minus the
amount of actual Capital Expenditures for the previous Fiscal Year:
--------------------------------------- -------------------------
FISCAL YEAR ENDING MAXIMUM CAPITAL
EXPENDITURE
--------------------------------------- -------------------------
March 31, 2001 $65,000,000
--------------------------------------- -------------------------
March 31, 2002 $65,000,000
--------------------------------------- -------------------------
March 31, 2003 $70,000,000
--------------------------------------- -------------------------
March 31, 2004 $75,000,000
--------------------------------------- -------------------------
March 31, 2005 $80,000,000
--------------------------------------- -------------------------
SECTION 6.2. INDEBTEDNESS. Create, incur, assume or in any manner
become liable in respect of, or suffer to exist, any Indebtedness other than:
(a) The Secured Obligations;
(b) The Indebtedness described in Schedule 6.2, including Guaranty
Obligations, provided that no increase in the principal amount thereof (as such
amount is reduced from time to time) shall be permitted and no modifications of
the terms thereof which would result in an earlier final maturity date or
decreased weighted average life thereof shall be permitted;
(c) Indebtedness of (i) any Domestic Subsidiary that is a Subsidiary
Guarantor owing to any Borrower or any other Subsidiary Guarantor, (ii) any
Canadian Subsidiary that is a Subsidiary Guarantor owing to any Borrower or any
other Subsidiary Guarantor, (iii) any Foreign Subsidiary (other than a Canadian
Subsidiary) to any other Foreign Subsidiary (other than a Canadian Subsidiary)
and (iv) any Foreign Subsidiary (other than a Canadian Subsidiary) to the
Company; provided, however, that any such Indebtedness owing by any Loan Party
shall be fully subordinated to the Obligations; provided further, however, that
upon the incurrence of Indebtedness described in clauses (iii) and (iv) above,
the conditions of Section 6.9(a), if applicable, shall have been satisfied;
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(d) Indebtedness constituting purchase money debt and Capital Leases
in aggregate outstanding principal amount not exceeding $25,000,000 at any time;
(e) Subordinated Debt under the Senior Subordinated Notes (or any
refinancing of such Senior Subordinated Notes by the Company), and Guaranty
Obligations of the Company's Subsidiaries (other than Foreign Subsidiaries) in
respect of such Subordinated Debt, in an aggregate principal amount not to
exceed $202,000,000; provided, however, prior to the Canadian Subsidiary Release
Date, the Canadian Subsidiaries may incur Guaranty Obligations in respect of the
Senior Subordinated Notes (but not in relation to any refinancing thereof);
(f) Other Subordinated Debt of the Company and Guaranty Obligations of
the Company's Subsidiaries (other than Foreign Subsidiaries) in respect of such
other Subordinated Debt; provided, however, that (i) both before and after
giving effect to such Subordinated Debt, no Event of Default or Default exists
or would be caused thereby and (ii) after giving effect to such Subordinated
Debt, the Leverage Ratio for the most recently ended Fiscal Quarter for which
Financial Statements have been delivered pursuant to Section 5.4 is no more than
the maximum level permitted under Section 6.1(a) on a Pro Forma Basis;
(g) Hedging Contracts with any Lender, any Affiliate of a Lender or
other Person acceptable to the Administrative Agent; provided, however, that no
Hedging Contracts shall be entered into for purposes of financial speculation;
(h) Guarantees by the Company of the Indebtedness of Unrestricted
Subsidiaries to the extent permitted by, and subject to the terms of, Section
6.9(d);
(i) Indebtedness solely in connection with the factoring of
receivables by European Restricted Subsidiaries or securitization of receivables
by Restricted Subsidiaries, in each case in the ordinary course of business and
on customary terms and conditions; provided, however, that all documentation
providing for such factoring and securitization arrangements shall be in form
and substance acceptable to the Administrative Agent, the obligations thereunder
shall be non-recourse to the Company and its Restricted Subsidiaries and the
aggregate outstanding amount thereof shall not exceed $100,000,000;
(j) Indebtedness of European Restricted Subsidiaries; provided,
however, that such Indebtedness shall be non-recourse to the Company and its
Restricted Subsidiaries and at any time the aggregate principal amount of all
such Indebtedness is less than $20,000,000;
(k) Obligations in respective of synthetic leases to the extent
permitted under Section 6.11; and
(l) Deferred purchase price obligations in the maximum amount of
$15,000,000 arising out of the Aries Acquisition.
Notwithstanding the above or anything else herein to the contrary,
neither OASP I, OASP II, the Danish Holding Company nor the French Holding
Company shall have any Indebtedness other than a guaranty by OASP I and OASP II
of the Obligations, a subordinated guaranty by OASP I and OASP II in favor of
the holders of the obligations owing under the Senior Subordinated Notes and a
guarantee by the French Holding Company in the amount of 66,000,000 French
Francs of the debt of Cofimeta Defeasance Company incurred in connection with
the closing of purchase of Cofimeta, Indebtedness permitted pursuant to Section
6.2(c) and 6.9(a), (b) and (e)(ii), the deferred purchase price obligations
referred to in Schedule 6.2 and the aggregate amount of the Indebtedness of
Cofimeta and its Subsidiaries shall be limited to (x) existing Indebtedness of
Cofimeta and its Subsidiaries, as reduced from time to time, (y) other
Indebtedness allowed under Section 6.2(i) and (z) future unsecured and
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secured (to the extent secured by assets acceptable to the Administrative Agent)
Indebtedness for working capital and Capital Expenditures.
SECTION 6.3. LIENS. Create, incur or suffer to exist any Lien on any
of the assets, rights, revenues or property, real, personal or mixed, tangible
or intangible, whether now owned or hereafter acquired, of the Company or any of
its Restricted Subsidiaries, other than:
(a) Customary Permitted Liens;
(b) Liens created pursuant to the Collateral Documents and Liens
expressly permitted by the Collateral Documents;
(c) Each Lien described in Schedule 6.3 may be suffered to exist upon
the same terms as those existing on the date hereof, but no increase in the
principal amount thereof shall be permitted;
(d) Any Lien created to secure payment of a portion of the purchase
price of, or existing at the time of acquisition of, any tangible fixed asset
acquired by the Company or any of its Restricted Subsidiaries may be created or
suffered to exist upon such fixed asset if the outstanding principal amount of
the Indebtedness secured by such Lien does not at any time exceed 100% of the
purchase price paid by the Company or such Restricted Subsidiary for such fixed
asset and the aggregate principal amount of all Indebtedness secured by such
Liens does not exceed the amount permitted under Section 6.2(d); provided,
however, that such Lien does not encumber any other asset at any time owned by
the Company or such Restricted Subsidiary, and that not more than one such Lien
shall encumber such fixed asset at any one time and neither OASP I, OASP II, the
Danish Holding Company nor the French Holding Company shall incur or permit or
suffer any such Lien to exist;
(e) The interest or title of a lessor under any operating lease
otherwise permitted under this Agreement with respect to the property subject to
such lease to the extent performance of the obligations of the Company or its
Restricted Subsidiary thereunder are not delinquent;
(f) Liens on accounts receivable of European Restricted Subsidiaries
securing the Indebtedness permitted by Section 6.2(i) and other Liens on the
assets of Cofimeta and its Subsidiaries to the extent securing Indebtedness
permitted by clause (z) of the last paragraph of Section 6.2;
(g) Liens securing guarantees of synthetic leases to the extent
permitted under Section 6.11, subject to intercreditor arrangements acceptable
to the Administrative Agent;
(h) any Lien securing the renewal, extension, refinancing or refunding
of any Indebtedness secured by any Lien permitted by clauses (c), (d) or (h) of
this Section 6.3 without any change in the assets subject to such Lien; and
(i) Liens securing Indebtedness permitted pursuant to Section 6.2(c),
provided that any such Liens are assigned to the Collateral Agent pursuant to
the Collateral Documents.
SECTION 6.4. MERGER; ACQUISITIONS; ETC. Purchase or otherwise acquire,
whether in one or a series of transactions, directly or indirectly, by merger or
otherwise, all or a substantial portion of the business assets, rights, revenues
or property, real, personal or mixed, tangible or intangible, of any Person, or
all or a substantial portion of the Stock of any other Person; nor merge or
consolidate or amalgamate with any other Person or take any other action having
a similar effect (any such transaction being an "Acquisition"); provided,
however, that this Section 6.4 shall not prohibit any Acquisition if:
(i) such Acquisition involves the Company, the Company shall be
the surviving or continuing corporation thereof;
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(ii) immediately before and after giving effect to such
Acquisition, no Default or Event of Default shall exist or shall have
occurred and be continuing and the representations and warranties
contained in Article IV and in the other Loan Documents shall be true
and correct on and as of the date thereof (both before and after such
Acquisition is consummated) as if made on the date such Acquisition is
consummated;
(iii) at least 10 Business Days' prior to the consummation of
such Acquisition, the Company shall have provided to the Lenders an
opinion of counsel and a certificate of the Chief Financial Officer or
Treasurer of the Company (attaching pro forma computations acceptable
to the Administrative Agent to demonstrate compliance with all
financial covenants hereunder on a Pro Forma Basis), each stating that
such Acquisition complies with this Section 6.4, all laws and
regulations and that any other conditions under this Agreement
relating to such transaction have been satisfied, and such certificate
shall contain such other information and certifications as requested
by the Administrative Agent and be in form and substance satisfactory
to the Administrative Agent;
(iv) at least 10 Business Days' prior to the consummation of such
Acquisition, the Company shall have delivered all acquisition
documents and other agreements and documents relating to such
Acquisition, and the Administrative Agent shall have completed a
satisfactory review thereof and completed such other due diligence
satisfactory to the Administrative Agent; provided, however, that if
such Acquisition is being done by an Unrestricted Subsidiary or
involves Unrestricted Subsidiaries only, then the requirements of this
clause (iv) will be satisfied if the Company provides the Lenders with
a certificate representing that neither the Company nor any Restricted
Subsidiary shall be liable, directly or indirectly, for any of the
Indebtedness or other liabilities of such Unrestricted Subsidiary or
for any Guaranty Obligation with respect to any such Unrestricted
Subsidiary except as permitted by Section 6.2, provided further,
however that if such Acquisition is being done by a Restricted
Subsidiary, the provisions of Section 6.9(a), if applicable, shall
have been satisfied;
(v) the Company shall, at least 10 Business Days prior to the
consummation of such Acquisition, provide such other certificates and
documents as requested by the Administrative Agent, in form and
substance satisfactory to the Administrative Agent;
(vi) the target of such Acquisition is in the same line of
business as the Company;
(vii) the Board of Directors (or similar governing body) and the
management of the target of such Acquisition has approved such
Acquisition; and
(viii) the aggregate consideration paid or payable in connection
with all Acquisitions permitted by this proviso (excluding the Aries
Acquisition and amounts paid or payable solely by Unrestricted
Subsidiaries and investments and other transactions permitted by
Section 6.9(d)), including any Indebtedness assumed in connection
therewith or guarantees or other liabilities incurred in connection
therewith, shall not exceed $150,000,000.
Notwithstanding the foregoing, (x) the requirements listed in clauses
(ii), (iii), (iv), (v) and (vii) of this Section 6.4 shall not be
required to be satisfied in connection with any acquisition done
solely by an Unrestricted Subsidiary; provided, however, that the
terms of Section 6.2, Section 6.9 and all other terms and provisions
hereof shall be applicable, (y) no Mexican Subsidiary will make,
directly or indirectly, any Acquisition or otherwise assist or be
involved in any Acquisition.
SECTION 6.5. DISPOSITION OF ASSETS; ETC. Consummate any Asset Sale,
and shall not permit or suffer any Restricted Subsidiary to consummate any Asset
Sale; provided, however, that this Section 6.5 shall not prohibit:
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(i) any Asset Sale if the consolidated book value (disregarding
any write-downs of such book value other than ordinary depreciation
and amortization) of all of the business, assets, rights, revenues and
property of the Company and its Restricted Subsidiaries disposed of in
any consecutive twelve-month period shall be less than 10% of the
consolidated book value of the assets of the Company and its
Restricted Subsidiaries as of the beginning of such twelve month
period and the aggregate book value of all assets disposed of after
the Effective Date shall be less than 25% of the consolidated book
value of assets of the Company and its Restricted Subsidiaries at the
time of any such Asset Sale and if, immediately after such
transaction, no Default or Event of Default shall exist or shall have
occurred and be continuing;
(ii) Asset Sales as to which proceeds are used within 180 days
to purchase or construct assets of at least equivalent value to those
sold, provided that the Company and its Subsidiaries may not sell a
substantial portion of their assets pursuant to this clause (ii);
(iii) the transfer of assets (i) from any Restricted Subsidiary
to the Company or any Subsidiary Guarantor, (ii) from the Company to
any Subsidiary Guarantor, (iii) from any Canadian Borrower to a
Borrower or a Subsidiary Guarantor, (iv) from a Foreign Subsidiary
(other than a Canadian Borrower) to any Foreign Subsidiary, any
portion of the Stock of which has been pledged to the Administrative
Agent pursuant to the Collateral Documents;
(iv) the transfer of assets with an aggregate fair market value
of less than $1,000,000, by the Company or any Restricted Subsidiary
to an Unrestricted Subsidiary; and
(v) the transfer of assets in connection with factoring or
securitization of receivables permitted by Section 6.2(i);
(vi) the transfer of the loan or advance, made by the Company
and evidenced by a promissory note pursuant to Section 6.9(b), by the
Company to the FCC pursuant to the transactions described on Schedule
6.9(e)(ii).
provided, however, in the case of any of the foregoing permitted Asset Sales,
the Company shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale, other than pursuant to clauses (iii) or (iv) of
this Section 6.5, unless (A) the Company (or the Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets and (B) at least 75% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash; provided,
however, that Cash Equivalents and the assumption of Indebtedness of the Company
or any Guarantor and the unconditional release of the Company or such Guarantor
from such Indebtedness in connection with such Asset Sale, in each case
acceptable to the Administrative Agent, shall be considered cash for purposes of
this Section 6.5; provided further, that the amount of (x) any liabilities (as
shown on the Company's or such Subsidiary's most recent balance sheet), of the
Company or any Subsidiary that are assumed by the transferee of any such assets
such that the Company or such Subsidiary have no further liability and (y) any
securities, notes or other obligations received by the Company or any such
Subsidiary from such transferee that are converted by the Company or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to be
cash for purposes of this provision and the definition of Net Cash Proceeds, and
the Administrative Agent promptly shall obtain a first priority security
interest in any non-cash consideration for any Asset Sale.
SECTION 6.6. NATURE OF BUSINESS. Make any material change in the
nature of its business from that engaged in on the date of this Agreement or
engage in any other businesses or activities other than those described in the
business plan provided to the Lenders.
SECTION 6.7. DIVIDENDS AND OTHER RESTRICTED PAYMENTS. Directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Payment, except:
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(a) dividends and distributions on Preferred Stock to the extent
permitted under Section 6.16;
(b) if no Event of Default or Default exists or would be caused
thereby, dividends and distributions in an aggregate amount not to exceed
$1,000,000 made after the Effective Date;
(c) dividends and distributions which in aggregate amount do not
exceed 25% of the Net Income accrued during Fiscal Quarters ending after the
Effective Date for which the Leverage Ratio was not greater than 3.00 to 1;
provided, however, that both before and after the making or declaration of such
dividend, payment or other distribution (i) the Leverage Ratio for the most
recently ended Fiscal Quarter for which Financial Statements have been delivered
pursuant to Section 5.4 is not greater than 3.00 to 1 on a Pro Forma Basis and
(ii) no Default or Event of Default shall have occurred or be caused thereby;
(d) if no Event of Default or Default exists or would be caused
thereby, payments in an aggregate amount not to exceed $2,500,000 in any Fiscal
Year and $5,000,000 in the aggregate, for all employees made after the Effective
Date for the purpose of redeeming the Stock of the Company owned by any
employees of the Company, other than a Permitted Holder, upon the termination of
the employment by the Company or any of its Restricted Subsidiaries of such
employee; provided, however, that (i) any amounts used to redeem such Stock
under this clause (d) shall first reduce the amount allowed or accumulated under
Section 6.7(b) until the amount allowed thereunder is exhausted and then shall
reduce the amount allowed under Section 6.7(c) and (ii) the amounts payable for
the redemption of such Stock will not be paid any sooner or in any greater
amount than contractually required;
(e) prepayment of the Subordinated Debt in an amount not to exceed
$250,000,000 in connection with the refinancing of the Senior Subordinated
Notes, as long as the incurrence of such Subordinated Debt is permitted under
Section 6.2(e) or (f); and
(f) any repayment of Indebtedness permitted pursuant to Section
6.2(c).
SECTION 6.8. ACCOUNTING CHANGES; FISCAL YEAR. Change its (a)
accounting treatment and reporting practices or tax reporting treatment, except
as required by GAAP or any Requirement of Law and disclosed to the Lenders and
the Administrative Agent or (b) Fiscal Year.
SECTION 6.9. INVESTMENTS. Make or maintain any Investment, or enter
into any joint venture or similar arrangement with any other Person to do any of
the foregoing, except:
(a) other than as provided in Section 6.9(b) with respect to the Aries
Acquisition, loans and advances to other Restricted Subsidiaries to the extent
the Indebtedness in respect thereof is permitted under Section 6.2(c); provided,
however, that any such Indebtedness incurred pursuant to a loan or advance made
by a Loan Party shall be evidenced by promissory notes payable on demand and in
form and substance satisfactory to the Administrative Agent and such notes shall
be pledged to the Collateral Agent pursuant to the applicable Collateral
Document for the benefit of the Secured Parties; provided further, however, that
if such loan or advance is made by a Loan Party or a Foreign Subsidiary pursuant
to Section 6.2(c)(ii), (iii) or (iv) and the aggregate amount outstanding of all
such loans or advances made to such Restricted Subsidiary by all Loan Parties is
in excess of $5,000,000 for a period of 45 days or more, or if any such loan or
advance is made in order to finance, in whole or in part, a Permitted
Acquisition by a Restricted Subsidiary which, alone, or together with any
related transactions, has a Fair Market Value in excess of $5,000,000, the
Company shall also:
(i) cause:
(A) each Restricted Subsidiary that receives the benefit of
the loan or advance to grant to the Loan Party which makes such loan or
advance, as security for such loan or
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advance, (x) following the Canadian Subsidiary Release Date, with respect
to loans or advances made pursuant to Section 6.2(c)(ii), a perfected
second priority security interest in all of such Restricted Subsidiary's
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible which constitute "Collateral" (as defined in the Collateral
Documents executed and delivered by such Restricted Subsidiary) and (y)
with respect to loans or advances made pursuant to Section 6.2(c)(iii) or
(iv), a perfected first priority security interest in all Stock and Stock
Equivalents and other debt Securities held by such Restricted Subsidiary,
of any other Restricted Subsidiary, including each Restricted Subsidiary
that was acquired in such Permitted Acquisition;
(B) each holder of Stock or Stock Equivalents or other debt
Securities of the Restricted Subsidiary that is the borrower of such loan
or advance, to provide a guarantee of such loan or advance in favor of the
Loan Party which makes such loan or advance and to grant to such Loan
Party, as security for such loan or advance, (x) following the Canadian
Subsidiary Release Date, with respect to loans or advances made pursuant to
Section 6.2(c)(ii), a perfected second priority security interest in all of
the assets, rights, revenues or property, real, personal or mixed, tangible
or intangible which constitute "Collateral" (as defined in the Collateral
Document executed and delivered by such holder of Stock or Stock
Equivalents or other debt Securities) of such holder of Stock or Stock
Equivalents or other debt Securities, and (y) with respect to loans or
advances made pursuant to Section 6.2(c)(iii) or (iv), a perfected first
priority security interest in the Stock and Stock Equivalents and other
debt Securities of the Restricted Subsidiary that is the borrower of such
loan or advance, each of the foregoing to be in form and substance
satisfactory to the Administrative Agent; provided, however, that the
Stock, Stock Equivalents or other debt Securities of any Restricted
Subsidiary shall be pledged to the Company only to the extent such pledge
of such Stock, Stock Equivalents or other debt Securities would not result
in material adverse tax consequences to the Company and its Restricted
Subsidiaries, taken as a whole;
(ii) cause to be delivered to the Collateral Agent, for the benefit of
the Secured Parties:
(A) following the Canadian Subsidiary Release Date, with
respect to loans or advances made pursuant to Section 6.2(c)(ii), evidence
satisfactory to the Administrative Agent that the Loan Party that made the
loan or advance has a valid and perfected first priority security interest
in all "Collateral" pledged as required by this Section 6.9(a);
(B) with respect to loans or advances made pursuant to
Section 6.2(c)(iii) or (iv), the certificates (if any) representing the
Stock and Stock Equivalents and other debt Securities referred to in clause
(a)(i) above, together with (x) in the case of such certificated Stock and
Stock Equivalents, undated stock powers endorsed in blank, and (y) in the
case of such certificated debt Securities, endorsed in blank, in each case
executed and delivered by a Responsible Officer of the applicable
Restricted Subsidiary; and
(iii) if requested by the Administrative Agent, deliver to the
Administrative Agent and Collateral Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent,
provided further, however that if any Loan Party to which Stock, Stock
Equivalents or other debt Securities are pledged pursuant to this Section
6.9(a), becomes the holder of such Stock, Stock Equivalents or other debt
Securities by virtue of a foreclosure action with respect to the foregoing loans
or advances, such Stock, Stock Equivalents or other debt Securities shall be
"Additional Pledged Collateral" (as defined in the Pledge and Security
Agreement) and shall be pledged to the Collateral Agent for the benefit of the
Secured Parties pursuant to and subject to the terms of the Pledge and Security
Agreement;
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(b) loans and advances by the Company or a Restricted Subsidiary in
connection with the consummation of the Aries Acquisition in the amounts and as
described on Schedule 4.24, in an aggregate amount not to exceed $70,000,000;
provided, however, that the Company shall cause (A) any such Indebtedness
incurred pursuant to a loan or advance made by a Loan Party to be evidenced by a
promissory note in favor of the Loan Party which makes such loan or advance, in
form and substance satisfactory to the Administrative Agent and pledged to the
Collateral Agent pursuant to the Pledge and Security Agreement for the benefit
of the Secured Parties, (B) the Acquirer to be a direct, wholly owned Subsidiary
of OASP II, Inc. and (C) all other financing arrangements, including all capital
contributions to Foreign Subsidiaries, in connection with the Aries Acquisition
to be completed as described on Schedule 4.24;
(c) Investments in Permitted Acquisitions;
(d) other Investments in, and guarantees by the Company, including
Investments and guarantees made after the Effective Date (valued at the maximum
amount that could be payable thereunder, and provided that all such guarantees
shall be collection guarantees, not payment guarantees, and be on terms and
conditions satisfactory to the Administrative Agent), of the Indebtedness of,
Unrestricted Subsidiaries or joint ventures which do not exceed $35,000,000 for
all of the foregoing in aggregate outstanding amount (with the outstanding
amount thereof being deemed decreased by any cash repayments of such loans or
advances or cash dividends paid to the Company or any Restricted Subsidiary with
respect to any such investments), provided that (i) if such transaction involves
a loan or advance, such loans and advances are evidenced by promissory notes
payable on demand or on such other terms acceptable to the Administrative Agent
and in form and substance satisfactory to the Administrative Agent and which are
pledged to the Collateral Agent pursuant to the Pledge and Security Agreement
for the benefit of the Secured Parties, (ii) both before and after giving effect
to such Investment, the Leverage Ratio as of the last day of the most recently
ended Fiscal Quarter for which Financial Statements have been delivered pursuant
to Section 5.4 is no more than the maximum level permitted under Section 6.1(a)
on a Pro Forma Basis, and (iv) no Event of Default or Default exists or would be
caused thereby and the Company provides such certificates and legal opinions as
requested by the Administrative Agent in connection therewith; and
(e) Investments (i) described on Schedule 6.9 (e)(i), as such
Investments may be reduced from time to time, but no increase in the amount
thereof shall be permitted and (ii) provided that no Default or Event of Default
has occurred and is continuing, in a "fonds commun de Creance" ("FCC") in
connection with the Aries Acquisition and as described, and in the amounts set
forth, on Schedule 6.9(e)(ii).
SECTION 6.10. TRANSACTIONS WITH AFFILIATES. Other than as permitted by
Section 6.18, enter into or permit to exist any transaction or series of related
transactions (including without limitation the purchase, sale, lease or exchange
of any property, employee compensation arrangements or rendering of any service)
with any Affiliate of the Company (an "Affiliate Transaction") unless the terms
of such transaction (i) are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
a comparable transaction in arm's-length dealings with a Person who is not such
an Affiliate, (ii) if such Affiliate Transaction (or series of related
Affiliated Transactions) involves aggregate payments in an amount in excess of
$1,000,000 in any one year, (A) are set forth in writing, (B) comply with clause
(i) of this Section 6.10 and (C) have been approved by a majority of
disinterested members of the Board of Directors of the Company, and (iii) if
such Affiliate Transaction (or series of related Affiliate Transactions)
involves aggregate payments in an amount in excess of $5,000,000 in any one
year, (A) comply with clause (ii) and (B) have been determined by a nationally
recognized investment banking firm to be fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.
SECTION 6.11. SALE AND LEASEBACK AND OTHER FINANCING TRANSACTIONS.
Other than as provided elsewhere herein, and other than the Mexican
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Facility pursuant to the terms of the Mexican Facility Documents delivered to
the Administrative Agent prior to the Effective Date, (i) become or remain
liable in any way, whether directly or by assignment or as a guarantor or other
contingent obligor, for the obligations of the lessee or user under any lease or
contract for the use of any real or personal property if such property is owned
on the date of this Agreement or thereafter acquired by the Company or any of
its Restricted Subsidiaries and has been or is to be sold or transferred to any
other Person and was, is or will be used by the Company or any such Restricted
Subsidiary for substantially the same purpose as such property was used by the
Company or such Restricted Subsidiary prior to such sale or transfer, or (ii)
enter into or become or remain liable in any way, whether directly or by
assignment or as a guarantor or other contingent obligor or otherwise, any
synthetic lease (excluding the Mexican Facility); provided, however, that, at
any time the aggregate principal amount of all synthetic leases entered into by
the Company and its Restricted Subsidiaries is less than $100,000,000, and
provided further, that if any Guaranty Obligations incurred by the Company or
any of its Restricted Subsidiaries in respect of any such synthetic lease is in
excess of $12,000,000 such obligation shall be unsecured (it being understood
that if any Guaranty Obligation for an amount in excess of $12,000,000 is
secured, such obligation and the security therefore shall be on terms reasonably
acceptable to the Administrative Agent), tax ownership/operating lease, off
balance sheet financing or similar financing; provided further, that it is
acknowledged that this clause (ii) does not prohibit normal operating leases
entered into in the ordinary course of business as determined by GAAP. It is
acknowledged and agreed by the Borrowers that (x) the aggregate outstanding
amount under the Mexican Facility or otherwise pursuant to the Mexican Facility
Documents shall not exceed $75,000,000, as reduced from time to time, (y) the
obligations and liabilities under the Mexican Facility Tranche A Guaranty will
not exceed the outstanding amount of the Mexican Facility Tranche A Loans, as
reduced from time to time, and (z) other than the Mexican Facility Guaranty,
there are no liabilities or obligations, direct, contingent or otherwise, of any
kind owing by the Company of any of its Restricted Subsidiaries (other than the
Mexican Subsidiaries) pursuant to the Mexican Facilities.
SECTION 6.12. NEGATIVE PLEDGE LIMITATION. Enter into any agreement
with any Person, other than the Lenders, the Administrative Agent or the
Collateral Agent pursuant hereto and other than the existing provisions without
amendment contained in the ▇▇▇▇▇▇▇ Preferred Stock Documents and in the
agreements listed on Schedule 6.12, which prohibits or limits the ability of the
Company or any Restricted Subsidiary to create, incur, assume or suffer to exist
any Lien upon any of its assets, rights, revenues or property, real, personal or
mixed, tangible or intangible, whether now owned or hereafter acquired.
SECTION 6.13. FSC COMMISSIONS. Pay or become obligated for the payment
during any fiscal year of the Company, commissions to all related wholly owned
foreign sales corporations in excess of an amount acceptable to the
Administrative Agent in aggregate amount plus reimbursement of the reasonable
administrative expenses of such wholly owned foreign sales corporations.
SECTION 6.14. OTHER AGREEMENTS.
(a) Permit any breach or default to exist under any Leases, Related
Documents, material contracts and other material agreements, or take or fail to
take any action thereunder, if to do so would have a Material Adverse Effect.
(b) Enter into any agreement containing any provision which would be
violated or breached by this Agreement or any of the transactions contemplated
hereby or by performance by the Company or any of its Subsidiaries of its
obligations in connection therewith.
SECTION 6.15. SUBSIDIARY DIVIDENDS. Other than those restrictions
existing as of the Effective Date or described in Schedule 6.12 without giving
effect to any amendment thereof on or after the Effective Date, permit any of
its Restricted Subsidiaries, directly or indirectly, to create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction which by its terms materially restricts the ability of any such
Subsidiary to (i) pay dividends or make any other distributions
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on such Restricted Subsidiary's Stock, (ii) pay any Indebtedness owed to the
Company or any of its other Restricted Subsidiaries, (iii) make any loans or
advances to the Company or any of such other Restricted Subsidiaries or (iv)
transfer any material portion of its assets to the Company or any of such other
Restricted Subsidiaries.
SECTION 6.16. PREFERRED STOCK.
(a) Issue any Preferred Stock or any Disqualified Stock, other than
(i) any Preferred Stock which does not require any dividends, payments,
redemptions or other distributions of any kind until at least one year after the
later of the Revolving Credit Termination Date or the Term Loan Maturity Date,
(ii) the existing ▇▇▇▇▇▇▇ Preferred Stock and (iii) any other Preferred Stock or
Disqualified Stock which meets all of the requirements for the issuance by the
Company of Subordinated Debt (i.e., all payments and other obligations
thereunder are expressly subordinated and junior in right and priority of
payment to the Obligations and other Indebtedness of such Person to the Lenders
in manner and by agreement satisfactory in form and substance to the
Administrative Agent and such Preferred Stock or Disqualified Stock is subject
to such other terms and provisions, including without limitation maturities,
covenants, defaults, rates and fees, acceptable to the Administrative Agent),
and such Preferred Stock and Disqualified Stock allowed under this clause (iii)
shall be treated as if it were Subordinated Debt for all purposes of this
Agreement and is defined herein as "Permitted Disqualified Stock".
(b) Make any amendment or modification to any ▇▇▇▇▇▇▇ Preferred Stock
Document, other than the adjustment in the price of the ▇▇▇▇▇▇▇ Preferred Stock
made prior to the Effective Date based on post closing adjustments and which do
not result in any additional obligations of ▇▇▇▇▇▇▇ or of the Company or any of
its Restricted Subsidiaries, or enter into any other agreement or document
relating thereto other than the documents listed on Schedule 4.18 or make, pay,
declare or authorize any dividend, payment or other distribution with respect to
any Preferred Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any Preferred Stock other than as required under the ▇▇▇▇▇▇▇
Preferred Stock Documents listed on Schedule 4.18; provided, however, that no
dividend, payment or other distribution in respect to the Preferred Stock or
dividend, payment or distribution in connection with the redemption, purchase,
retirement or other acquisition, directly or indirectly, of any Preferred Stock,
including those required under the ▇▇▇▇▇▇▇ Preferred Stock Documents, will be
made if any Event of Default exists under Section 7.1(a) or would be caused
thereby.
SECTION 6.17. OTHER INDEBTEDNESS AND AGREEMENTS. Make any amendment or
modification to any indenture, note or other agreement evidencing or governing
any Indebtedness (other than Indebtedness hereunder of the Company or any of its
Subsidiaries) or to any Tax Sharing Agreement, any Mexican Facility Document,
any Related Document or designate any Indebtedness (other than the Indebtedness
under the Loan Documents and under Hedging Agreements with Lenders) as
"Designated Senior Debt" under the Senior Subordinated Debt Documents.
SECTION 6.18. MANAGEMENT FEES. Pay any management, consulting or
similar fees or amounts to any of its Affiliates other than (i) to the Company
or a Guarantor and (ii) as described on Schedule 6.18, without giving effect to
any amendment or modification of the agreement described on Schedule 6.18,
provided that no such management, consulting or similar fees or amounts (other
than the out of pocket expenses provided therefor) shall be paid pursuant to
this clause (ii) if any Event of Default or Default exists or would be caused
thereby, and the Oxford Investment Group, Inc. has acknowledged and agreed that
no such management, consulting or similar fees or amounts (other than out of
pocket expenses) will be so paid.
SECTION 6.19. RESTRICTED SUBSIDIARIES. Except with the consent of the
Administrative Agent, which consent will not be unreasonably withheld, permit or
suffer any Restricted Subsidiary to not be a wholly owned Subsidiary.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived pursuant to Section 9.1:
(a) Nonpayment. The Borrowers shall fail to pay when due, whether at
stated maturity, by acceleration or otherwise, any principal on the Loans or any
Reimbursement Obligation under Sections 2.4 or 2.5 (whether by deemed
disbursement of a Revolving Credit Loan or otherwise), or, within five days
after becoming due, any interest on the Loans or any fees or any other amount
payable hereunder; or
(b) Misrepresentation. Any representation or warranty made by any Borrower
or any of the Guarantors in Article IV hereof, or in any Collateral Document, or
any other certificate, report, financial statement or other document furnished
by or on behalf of the Company or any of the Guarantors in connection with this
Agreement, shall prove to have been incorrect in any material respect when made
or deemed made; or
(c) Certain Covenants. Any Borrower shall fail to perform or observe any
term, covenant or agreement contained in Article VI hereof; or
(d) Other Defaults. Any default which remains uncured beyond any
applicable cure period shall exist under any material purchase or tooling
contract that could have a Material Adverse Effect, or any Borrower or any
Guarantor shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement or in any other Loan Document, and any such failure
shall remain unremedied for 15 calendar days after the earlier of the date on
which (i) a Responsible Officer of the Company becomes aware of such failure and
(ii) written notice thereof shall have been given to the Company by the
Administrative Agent; or
(e) Cross Default. Failure of the Company or any of its Restricted
Subsidiaries to pay when due any Indebtedness aggregating in excess of
$6,000,000 or any Mexican Facility Obligations ("Material Obligations") or the
default by the Company or any of its Restricted Subsidiaries in the observance
or performance (beyond the applicable grace period with respect thereto, if any)
of any term, provision or condition contained in any agreement under which any
such Material Obligations was created or is governed, or any other event shall
occur or condition exist, the effect of which default or event is to cause, or
to permit the holder or holders of such Material Obligations to cause, such
Material Obligations to become due prior to its stated maturity; or any Material
Obligations of the Company or any of its Restricted Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
(f) Judgments. One or more judgments or orders for the payment of money in
an aggregate amount of $6,000,000 shall be rendered against the Company or any
of its Restricted Subsidiaries, or any other judgment or order (whether or not
for the payment of money) shall be rendered against or shall affect the Company
or any of its Restricted Subsidiaries which causes or could cause a Material
Adverse Effect, and either (i) such judgment or order shall have remained
unsatisfied and the Company or such Restricted Subsidiary shall not have taken
action necessary to stay enforcement thereof by reason of pending appeal or
otherwise, prior to the expiration of the applicable period of limitations for
taking such action or, if such action shall have been taken, a final order
denying such stay shall have been rendered, or (ii) enforcement proceedings
shall have been commenced by any creditor upon any such judgment or order; or
(g) ERISA. The occurrence of a Reportable Event that results in or could
result in liability of the Company or any of its ERISA Affiliates to the PBGC or
to any Title IV Plan and such
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Reportable Event is not corrected within 30 days after the occurrence thereof;
or the occurrence of any Reportable Event which could constitute grounds for
termination of any Title IV Plan of the Company or any of its ERISA Affiliates
by the PBGC or for the appointment by the appropriate United States District
Court of a trustee to administer any such Title IV Plan and such Reportable
Event is not corrected within 30 days after the occurrence thereof; or the
Company or any of its ERISA Affiliates shall fail to pay when due any liability
to the PBGC or to a Title IV Plan; or any Person engages in a Prohibited
Transaction with respect to any Title IV Plan which results in or could result
in liability of the Company, any of its ERISA Affiliates, any Title IV Plan of
the Company or any of its ERISA Affiliates or any fiduciary of any such Title IV
Plan; or the PBGC shall have instituted proceedings to terminate, or to cause a
trustee to be appointed to administer, any Title IV Plan of the Company or any
of its ERISA Affiliates; or failure by the Company or any of their ERISA
Affiliates to make a required installment or other payment to any Title IV Plan
within the meaning of Section 302(f) of ERISA or Section 412(n) of the Code that
results in or could result in liability of the Company or any of their ERISA
Affiliates to the PBGC or any Title IV Plan; or the withdrawal of the Company or
any of its ERISA Affiliates from a Title IV Plan during a Title IV Plan year in
which it was a "substantial employer" as defined in Section 4001(9a)(2) of
ERISA; or the Company or any of its ERISA Affiliates becomes an employer with
respect to any Multiemployer Plan without the prior written consent of the
Administrative Agent, and in each case above, such event or condition, together
with all other events or conditions, if any, could subject the Company and its
Restricted Subsidiaries to any tax, penalties or other liability which in the
aggregate may exceed $6,000,000; or
(h) Insolvency, Etc. The Company or any of its Restricted Subsidiaries
shall be dissolved or liquidated (or any judgment, order or decree therefor
shall be entered), or shall generally not pay its debts as they become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Company or any of its Restricted Subsidiaries
any proceeding or case seeking to adjudicate it a bankrupt or insolvent or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief or protection of debtors or
seeking the entry of an order for relief, or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its assets, rights, revenues or property, and, if such proceeding is
instituted against the Company or such Restricted Subsidiary and is being
contested by the Company or such Restricted Subsidiary, as the case may be, in
good faith by appropriate proceedings, such proceeding shall remain undismissed
or unstayed for a period of 60 days or an order for relief is entered; or the
Company or such Restricted Subsidiary shall take any action (corporate or other)
to authorize or further any of the actions described above in this subsection;
or
(i) Collateral Documents. Any event of default described in any Loan
Document shall have occurred and be continuing, or any material provision of any
Loan Document shall at any time for any reason cease to be valid and binding and
enforceable against any obligor thereunder, or the validity, binding effect or
enforceability thereof shall be contested by any Person, or any obligor, shall
deny that it has any or further liability or obligation thereunder, or any
material provision thereof shall be terminated, invalidated or set aside, or be
declared ineffective or inoperative or in any way cease to give or provide to
the Lenders and the Administrative Agent the benefits purported to be created
thereby; or
(j) Control. Any Change of Control shall occur; or
(k) Material Adverse Change. There shall occur a Material Adverse Change
or any event or circumstances which would have a Material Adverse Effect,
including an event or circumstances that would result in the reasonable
likelihood of the Company and its Subsidiaries incurring Environmental
Liabilities and Costs, the payment of which would have a Material Adverse
Effect; or
(l) Mexican Facility. Any commitment to lend or other obligation to
advance funds pursuant to the Mexican Facility or otherwise under the Mexican
Facility Documents shall be terminated
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for any reason or any Loan Agreement Event of Default (as defined in the Mexican
Facility Documents) or other default shall occur under the Mexican Facility
Documents.
SECTION 7.2. REMEDIES. During the continuance of any Event of Default, the
Administrative Agent (i) may, and shall at the request of the Requisite Lenders,
by notice to the Borrowers declare that all or any portion of the Commitments be
terminated, whereupon the obligation of each Lender to make any Loan and each
Issuer to issue any Letter of Credit shall immediately terminate, and/or (ii)
may and shall at the request of the Requisite Lenders, by notice to the
Borrowers, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrowers; provided, however, that upon the occurrence of the Event of
Default specified in Section 7.1(h), (A) the Commitments of each Lender to make
Loans and of each Lender and Issuer to issue or participate in Letters of Credit
shall automatically be terminated and (B) the Loans, all such interest and all
such amounts and Obligations shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers. In addition to the remedies set forth
above, the Collateral Agent may exercise any remedies provided for by the
Collateral Documents in accordance with the terms thereof or any other remedies
provided by applicable law.
SECTION 7.3. ACTIONS IN RESPECT OF LETTERS OF CREDIT AND BANKERS'
ACCEPTANCE. Upon the Revolving Credit Termination Date or as required by Section
2.10, the Borrowers shall pay to the Administrative Agent in immediately
available funds at the Administrative Agent's office referred to in Section 9.8,
for deposit in a Cash Collateral Account an amount equal to 105% of the sum of
all outstanding Letter of Credit Obligations and Bankers' Acceptance
Obligations. The Administrative Agent may, from time to time after funds are
deposited in such Cash Collateral Account, apply funds then held in such Cash
Collateral Account to the payment of any amounts, in accordance with Section
2.14(f), as shall have become or shall become due and payable by the Borrowers
to the Issuers or Revolving Credit Lenders in respect of the Letter of Credit
Obligations and Bankers' Acceptance Obligations. The Administrative Agent shall
promptly give written notice of any such application; provided, however, that
the failure to give such written notice shall not invalidate any such
application.
SECTION 7.4. RESCISSION. If at any time after termination of the Revolving
Credit Commitments and/or acceleration of the maturity of the Loans, the
Borrowers shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations Acceptances which shall
have become due otherwise than by acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified
herein) and all Events of Default and Defaults (other than non-payment of
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 9.1, then upon
the written consent of the Requisite Lenders and written notice to the
Borrowers, the termination of the Revolving Credit Commitments and/or the
acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Default or impair any
right or remedy consequent thereon. The provisions of the preceding sentence are
intended merely to bind the Lenders and the Issuers to a decision which may be
made at the election of the Requisite Lenders; they are not intended to benefit
the Borrowers and do not give the Borrowers the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT; THE AGENTS
SECTION 8.1. AUTHORIZATION AND ACTION.
(a) Each Lender and each Issuer hereby appoints Citicorp as the
Administrative Agent hereunder and each Lender and each Issuer authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the other Loan Documents and the Mexican
Intercreditor Agreement as are delegated to the Administrative Agent under such
agreements and to exercise such powers as are reasonably incidental thereto.
Without limitation of the foregoing, each Lender and each Issuer hereby
authorizes the Administrative Agent to execute and deliver, and to perform its
obligations under the Mexican Intercreditor Agreement and each of the Loan
Documents and to which the Administrative Agent is a party and to exercise all
rights, powers and remedies that the Administrative Agent may have under the
Mexican Intercreditor Agreement and such Loan Documents and that under the
Collateral Documents the Collateral Agent is acting as agent for the Lenders,
Issuers and the other Secured Parties.
(b) As to any matters not expressly provided for by this Agreement, the
other Loan Documents and the Mexican Intercreditor Agreement (including
enforcement or collection), the Administrative Agent, or Collateral Agent, as
the case may be, shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders, and such instructions shall be binding upon all Lenders
and each Issuer; provided, however, that the Administrative Agent shall not be
required to take any action which (i) the Administrative Agent in good faith
believes exposes it to personal liability unless the Administrative Agent
receives an indemnification satisfactory to it from the Lenders and the Issuers
with respect to such action or (ii) is contrary to this Agreement or applicable
law. The Administrative Agent agrees to give to each Lender and each Issuer
prompt notice of each notice given to it by any Loan Party pursuant to the terms
of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder, under the other Loan
Documents and under the Mexican Intercreditor Agreement, the Administrative
Agent is acting solely on behalf of the Lenders and the Issuers and its duties
are entirely administrative in nature. The Administrative Agent does not assume
and shall not be deemed to have assumed any obligation other than as expressly
set forth herein, in the other Loan Documents or under the Mexican Intercreditor
Agreement or any other relationship as the agent, fiduciary or trustee of or for
any Lender, Issuer or holder of any other Secured Obligation. The Administrative
Agent may perform any of its duties under any of the Loan Documents or under the
Mexican Intercreditor Agreement by or through its agents or employees.
(d) Each Lender and each Issuer hereby appoints Comerica Bank as
Syndication Agent and Credit Suisse First Boston as Documentation Agent and
hereby authorizes the Syndication Agent to act as Syndication Agent and the
Documentation Agent to act as Documentation Agent on its behalf in accordance
with the terms of this Agreement and the other Loan Documents. Notwithstanding
anything to the contrary contained in this Agreement, each of the Syndication
Agent and the Documentation Agent is a Lender designated as "Syndication Agent"
or "Documentation Agent," respectively, for title purposes only and in such
capacity shall have no obligations or duties whatsoever under this Agreement or
any other Loan Document to any Loan Party, any Lender or any Issuer and shall
have no rights separate from its rights as a Lender except as expressly provided
in this Agreement.
SECTION 8.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its Affiliates or any of the respective
directors, officers, agents or employees of the Administrative Agent or any such
Affiliate shall be liable for any action taken or omitted to be taken by it,
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him, her or them under or in connection with this Agreement, the other Loan
Documents or the Mexican Intercreditor Agreement, except for its, his, her or
their own gross negligence or willful misconduct. Without limiting the
foregoing, the Administrative Agent (a) may treat the payee of any Note as its
holder until such Note has been assigned in accordance with Section 9.2; (b) may
rely on the Register to the extent set forth in Section 9.2(c); (c) may consult
with legal counsel (including counsel to the Borrowers or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (d) makes no
warranty or representation to any Lender or Issuer and shall not be responsible
to any Lender or Issuer for any statements, warranties or representations made
by or on behalf of the Company or any of its Subsidiaries in or in connection
with this Agreement or any of the other Loan Documents; (e) shall not have any
duty to ascertain or to inquire either as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any of the other
Loan Documents or the financial condition of any Loan Party, or the existence or
possible existence of any Default or Event of Default; (f) shall not be
responsible to any Lender or Issuer for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Loan Documents or the Mexican Intercreditor Agreement or any other
instrument or document furnished pursuant hereto or thereto; and (g) shall incur
no liability under or in respect of this Agreement, any of the other Loan
Documents or the Mexican Intercreditor Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopy)
or any telephone message believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 8.3. THE ADMINISTRATIVE AGENT INDIVIDUALLY. With respect to its
Ratable Portion, Citicorp shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "Lenders" or "Requisite
Lenders" or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity as a
Lender or as one of the Requisite Lenders. Citicorp and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Loan Party as if it were not acting as
the Administrative Agent.
SECTION 8.4. LENDER CREDIT DECISION. Each Lender and each Issuer
acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrowers and each
other Loan Party in connection with the making and continuance of the Loans and
with the issuance of the Letters of Credit. Each Lender and each Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
SECTION 8.5. INDEMNIFICATION. Each Lender agrees to indemnify the
Administrative Agent and each of its Affiliates, and each of their respective
directors, officers, employees, agents and advisors (to the extent not
reimbursed by the Borrowers), from and against such Lender's aggregate Ratable
Portion of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements (including fees and
disbursements of legal counsel) of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against, the Administrative Agent or any of
its Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or any
action taken or omitted by the Administrative Agent under this Agreement, the
other Loan Documents or the Mexican Intercreditor Agreement; provided, however,
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's or such Affiliate's
gross negligence or willful misconduct. Without limiting the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including fees and disbursements of
legal counsel) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration,
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modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement, the other Loan Documents or the Mexican
Intercreditor Agreement, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrowers or another Loan Party.
SECTION 8.6. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Requisite Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Requisite Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent,
selected from among the Lenders. In either case, such appointment shall be
subject to the prior written approval of the Borrowers (which approval may not
be unreasonably withheld and shall not be required upon the occurrence and
during the continuance of an Event of Default). Upon the acceptance of any
appointment as Administrative Agent by a successor Administrative Agent, such
successor Administrative Agent shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement, the other Loan Documents and the Mexican
Intercreditor Agreement. Prior to any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the retiring Administrative Agent
shall take such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan Documents
and the Mexican Intercreditor Agreement. After such resignation, the retiring
Administrative Agent shall continue to have the benefit of this Article VIII as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement, the other Loan Documents and Mexican Intercreditor
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENTS, WAIVERS, ETC.
(a) No amendment or 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 in writing and signed by the
Requisite Lenders, and then any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by each Lender affected thereby, in addition to the Requisite Lenders, do
any of the following:
(i) waive any of the conditions specified in Section 3.2 or 3.3 except
with respect to a condition based upon another provision hereof, the waiver
of which requires only the concurrence of the Requisite Lenders;
(ii) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations (other than a Facilities Increase permitted under
Section 2.20); provided, however, that any such increase with respect to the
Term Loan or the Revolving Loan Commitments shall require the consent of the
Requisite Term Loan Lenders or the Requisite Revolving Credit Lenders, as the
case may be;
(iii) extend the scheduled final maturity of any Loan, or waive, reduce
or postpone any scheduled date fixed for the payment or reduction of
principal (it being understood that Section 2.11 does not provide for
scheduled dates fixed for payment) or of the Commitments;
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(iv) reduce the principal amount of any Loan or Reimbursement
Obligation (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement
Obligations or any fee payable hereunder;
(vi) postpone any scheduled date fixed for payment of such interest
or fees;
(vii) change the aggregate Ratable Portions of the Lenders which shall
be required for the Lenders or any of them to take any action hereunder;
(viii) release any Collateral except (A) as provided in the Mexican
Intercreditor Agreement, (B) following the Canadian Subsidiary Release Date
as provided in the Collateral Documents or (C) following the repayment in
full of the related loan or advance made by a Loan Party pursuant to Sections
6.9(a) or (b), or release any Subsidiary Guarantor from its obligations under
the Guaranty except in connection with sale or other disposition permitted by
this Agreement (or permitted pursuant to a waiver or consent of a transaction
otherwise prohibited by this Agreement); or
(ix) amend this Section 9.1, Section 9.7 or the definition of the
terms "Requisite Lenders", "Requisite Revolving Credit Lenders", "Requisite
Term Loan Lenders" or "Ratable Portion";
and provided, further, (A) that any modification of the application of payments
to the Term Loans pursuant to Section 2.10 shall require the consent of the
Requisite Term Loan Lenders and any such modification of the application of
payments to the Revolving Loans pursuant to Section 2.10 or the reduction of the
Revolving Credit Commitments pursuant to Section 2.6(b) shall require the
consent of the Requisite Revolving Credit Lenders and (B) that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or the other
Loan Documents.
(b) The Administrative Agent may, but shall have no obligation to, with the
written concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers to
any other or further notice or demand in similar or other circumstances.
(c) In connection with any proposed amendment, modification, waiver or
termination (a "Proposed Change") requiring the consent of all affected Lenders,
the consent of Requisite Lenders is obtained, but the consent of other Lenders
whose consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 9.1 being referred to as a "Non-Consenting
Lender"), then, so long as the Lender that is acting as the Administrative Agent
is not a Non-Consenting Lender, at the Borrowers' request, the Administrative
Agent or an Eligible Assignee that is acceptable to the Administrative Agent
shall have the right with the Administrative Agent's consent and in the
Administrative Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees
that it shall, upon the Administrative Agent's request, sell and assign to the
Lender that is acting as the Administrative Agent or such Eligible Assignee, all
of the Commitments, Term Loans and Revolving Credit Outstandings of such
Non-Consenting Lender for an amount equal to the principal balance of all Term
Loans and Revolving Loans held by the Non-Consenting Lender and all accrued
interest and fees with respect thereto through the date of sale, such purchase
and sale to be consummated pursuant to an executed Assignment and Acceptance.
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SECTION 9.2. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may sell, transfer, negotiate or assign to one or more
Eligible Assignees all or a portion of its rights and obligations hereunder
(including all of its rights and obligations with respect to the Term Loans, the
Revolving Loans, the Swing Loans and the Letters of Credit); provided, however,
that (i) (A) if any such assignment shall be of the assigning Lender's Revolving
Credit Outstandings and Revolving Credit Commitment, such assignment shall cover
the same percentage of such Lender's Revolving Credit Outstandings and Revolving
Credit Commitment (adjusted, if necessary, in the case of an assignment by a
Canadian Lender to account for its ratable portion of Canadian Revolving Credit
Outstandings), and (B) if any such assignment shall be of the assigning Lender's
Term Loans and Term Loan Commitment, such assignment shall cover the same
percentage of such Lender's Term Loans and Term Loan Commitment, (ii) the
aggregate amount being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event (if less than the Assignor's entire interest) be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in
either case, (A) with the consent of the Borrowers and the Administrative Agent
or (B) if such assignment is being made to a Lender or an Affiliate or Approved
Fund of such Lender, and (iii) if such Eligible Assignee is not, prior to the
date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender,
such assignment shall be subject to the prior consent of the Administrative
Agent and the Borrowers (which consent shall not be unreasonably withheld or
delayed); provided, however, that, notwithstanding any other provision of this
Section 9.2, the consent of the Borrowers shall not be required for any
assignment which occurs when any Event of Default shall have occurred and be
continuing. Any such assignment need not be ratable as among the Term Loan
Facility and the Revolving Credit Facility. If, as a result of any assignment to
an Eligible Assignee that is a Canadian Lender, the Canadian Revolving Credit
Outstandings owing to any Canadian Lender are greater than such Canadian
Lender's Canadian Ratable Portion of the Canadian Revolving Credit Outstandings
owing to all Canadian Lenders, then at the direction of the Administrative Agent
(with notice from the Administrative Agent to each Canadian Lender and the
Borrowers), each Canadian Lender that does not hold such Obligations in excess
of its Canadian Ratable Portion shall purchase from the other Canadian Lenders
such Canadian Revolving Credit Outstandings as shall be necessary to cause each
Canadian Lender to have Canadian Revolving Credit Outstandings owing to it equal
to its Canadian Ratable Portion of the Canadian Revolving Credit Outstandings
owing to all Canadian Lenders. The amount of such purchase shall be determined
by the Administrative Agent in accordance with each Canadian Lender's Canadian
Ratable Portion.
(b) The parties to each assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording, an Assignment and
Acceptance, together with any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such assignment. Upon such execution, delivery,
acceptance and recording and the receipt by the Administrative Agent from the
assignee of an assignment fee in the amount of $3,500 from and after the
effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall become a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender, and if such Lender were an Issuer, of such Issuer hereunder and
thereunder, and (ii) the assignor thereunder shall, to the extent that rights
and obligations under this Agreement have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except those which survive the
payment in full of the Obligations) and be released from its obligations under
the Loan Documents, other than those relating to events or circumstances
occurring prior to such assignment (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto).
(c) The Administrative Agent shall maintain at its address referred to in
Section 9.8 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recording of the names and addresses of the Lenders
and the Commitments of and principal amount of the Loans and Letter of Credit
Obligations owing to each Lender from time to time (the "Register"). The entries
in
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the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Loan Parties, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers, the Administrative Agent or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers. Within five Business Days
after its receipt of such notice, the Borrowers, at their expense, shall, if
requested by such assignee, execute and deliver to the Administrative Agent, new
Notes to the order of such assignee in an amount equal to the Commitments and
Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has surrendered any Note for exchange in connection with the
assignment and has retained Commitments or Term Loans hereunder, new Notes to
the order of the assigning Lender in an amount equal to the Commitments and Term
Loans retained by it hereunder. Such new Notes shall be dated the same date as
the surrendered Notes and be in substantially the form of Exhibit B-1 or B-2
hereto, as applicable.
(e) In addition to the other assignment rights provided in this Section
9.2, (i) each Lender may assign, as collateral or otherwise, any of its rights
under this Agreement (including rights to payments of principal or interest on
the Loans) to any Federal Reserve Bank pursuant to Regulation A of the Federal
Reserve Board without notice to or consent of the Borrowers or the
Administrative Agent and (ii) any Lender (a "Granting Bank") may grant to a
special purpose funding vehicle (a "SPC"), identified as such in writing from
time to time by the Granting Bank to the Administrative Agent and the Borrowers,
the option to provide to the Borrowers all or any part of any Loan to the
Borrowers that such Granting Bank would otherwise be obligated to make to the
Borrowers pursuant to this Agreement; provided that (A) nothing herein shall
constitute a commitment by any SPC to make any Loan and (B) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Bank shall be obligated to make such Loan pursuant to the
terms hereof. The making of such Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 9.2(e), any SPC may (i) with notice to, but
without the prior written consent of, the Borrowers and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by the Borrowers and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of such Loans and (ii) disclose on a confidential basis any
non-public information relating to such Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This section may not be amended without the written
consent of the Granting Bank. No such pledge or assignment of security interest
as described in this Section 9.4(e) shall release any Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(f) Each Lender may sell participations to one or more Persons in or to all
or a portion of its rights and obligations under the Loan Documents (including
all its rights and obligations with respect to the Term Loans, Revolving Loans
and Letters of Credit). The terms of such participation shall not, in any event,
require the participant's consent to any amendments, waivers or other
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modifications of any provision of any Loan Documents, the consent to any
departure by any Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights which such Lender may have under or in respect
of the Loan Documents (including the right to enforce the obligations of the
Loan Parties), except if any such amendment, waiver or other modification or
consent would (i) reduce the amount, or postpone any date fixed for, any amount
(whether of principal, interest or fees) payable to such participant under the
Loan Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of all or substantially all of the
Collateral other than in accordance with the Mexican Intercreditor Agreement).
In the event of the sale of any participation by any Lender, (A) such Lender's
obligations under the Loan Documents shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties for the performance of such
obligations, (C) such Lender shall remain the holder of such Obligations for all
purposes of this Agreement, and (D) the Borrowers, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Each
participant shall be entitled to the benefits of Sections 2.15(d), 2.16 and 2.17
as if it were a Lender; provided, however, that anything herein to the contrary
notwithstanding, the Borrowers shall not, at any time, be obligated to pay to
any participant of any interest of any Lender, under Section 2.15(d), 2.16 or
2.17, any sum in excess of the sum which the Borrowers would have been obligated
to pay to such Lender in respect of such interest had such participation not
been sold.
(g) Any Issuer may at any time assign its rights and obligations hereunder
to any other Lender by an instrument in form and substance satisfactory to the
Borrowers, the Administrative Agent, such Issuer and such Lender. If any Issuer
ceases to be a Lender hereunder by virtue of any assignment made pursuant to
this Section 9.2, then, as of the effective date of such cessation, such
Issuer's obligations to issue Letters of Credit pursuant to Section 2.4 shall
terminate and such Issuer shall be an Issuer hereunder only with respect to
outstanding Letters of Credit issued prior to such date.
SECTION 9.3. COSTS AND EXPENSES.
(a) The Borrowers agrees upon demand to pay, or reimburse the
Administrative Agent for, all of the Administrative Agent's reasonable internal
and external audit, legal, appraisal, valuation, filing, document duplication
and reproduction and investigation expenses and for all other reasonable
out-of-pocket costs and expenses of every type and nature (including, without
limitation, the reasonable fees, expenses and disbursements of the
Administrative Agent's counsel, Weil, Gotshal & ▇▇▇▇▇▇ LLP, local legal counsel,
auditors, accountants, appraisers, printers, insurance and environmental
advisers, and other consultants and agents) incurred by the Administrative Agent
in connection with (i) the Administrative Agent's audit and investigation of the
Company and its Subsidiaries in connection with the preparation, negotiation and
execution of the Loan Documents and the Administrative Agent's periodic audits
of the Company and its Subsidiaries, which, in the absence of an Event of
Default shall be conducted no more frequently than is reasonable, as the case
may be; (ii) the preparation, negotiation, execution and interpretation of this
Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article III), the Loan
Documents, the Mexican Intercreditor Agreement and any proposal letter or
commitment letter issued in connection therewith and the making of the Loans
hereunder; (iii) the creation, perfection or protection of the Liens under the
Loan Documents (including, without limitation, any reasonable fees and expenses
for local counsel in various jurisdictions); (iv) the ongoing administration of
this Agreement and the Loans, including consultation with attorneys in
connection therewith and with respect to the Administrative Agent's rights and
responsibilities hereunder, under the other Loan Documents and under the Mexican
Intercreditor Agreement; (v) the protection, collection or enforcement of any of
the Obligations or the enforcement of any of the Loan Documents; (vi) the
commencement, defense or intervention in any court proceeding relating in any
way to the Obligations, any Loan Party, any of the
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Company's Subsidiaries, the Acquisition, the Related Documents, this Agreement
or any of the other Loan Documents; (vii) the response to, and preparation for,
any subpoena or request for document production with which the Administrative
Agent is served or deposition or other proceeding in which the Administrative
Agent is called to testify, in each case, relating in any way to the
Obligations, any Loan Party, any of the Company's Subsidiaries, the Acquisition,
the Related Documents, this Agreement or any of the other Loan Documents; and
(viii) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents or the Mexican Intercreditor Agreement
and the preparation, negotiation, and execution of the same.
(b) Each Borrower further agrees to pay or reimburse the Administrative
Agent and each of the Lenders and Issuers upon demand for all out-of-pocket
costs and expenses, including, without limitation, reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent, such Lenders or Issuers (i) in enforcing
any Loan Document or Obligation or any security therefor or exercising or
enforcing any other right or remedy available by reason of an Event of Default;
(ii) in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "work-out" or in any
insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, any of the Company's' Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents or
Related Documents; and (iv) in taking any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) described in clauses (i) through
(iii) above.
SECTION 9.4. INDEMNITIES.
(a) The Borrowers agrees to indemnify and hold harmless the Administrative
Agent, the Syndication Agent, the Documentation Agent, each Lender and each
Issuer and each of their respective Affiliates, and each of the directors,
officers, employees, agents, representative, attorneys, consultants and advisors
of or to any of the foregoing (including those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article III) (each such Person being an "Indemnitee") from and against any and
all claims, damages, liabilities, obligations, losses, penalties, actions,
judgments, suits, costs, disbursements and expenses of any kind or nature
(including fees and disbursements of counsel to any such Indemnitee) which may
be imposed on, incurred by or asserted against any such Indemnitee in connection
with or arising out of any investigation, litigation or proceeding, whether or
not any such Indemnitee is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state or local law or other
statutory regulation, securities or commercial law or regulation, or under
common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, any other Loan Document, any
Obligation, any Letter of Credit, any Related Document, or any act, event or
transaction related or attendant to any thereof, or the use or intended use of
the proceeds of the Loans or Letters of Credit or in connection with any
investigation of any potential matter covered hereby (collectively, the
"Indemnified Matters"); provided, however, that the Borrowers shall not have any
obligation under this Section 9.4 to an Indemnitee with respect to any
Indemnified Matter caused by or resulting from the gross negligence, willful
misconduct or breach of its obligations under any Loan Document of that
Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order. Without limiting the foregoing, Indemnified
Matters include (i) all Environmental Liabilities and Costs arising from or
connected with the past, present or future operations of the Company or any of
its Subsidiaries involving any property subject to a Collateral Document, or
damage to real or personal property or natural resources or harm or injury
alleged to have resulted from any Release of Contaminants on, upon or into such
property or any contiguous real estate; (ii) any costs or liabilities incurred
in connection with any Remedial Action concerning the Company or any of its
Subsidiaries; (iii) any costs or liabilities incurred in connection with any
Environmental Lien; (iv) any costs or liabilities incurred in connection with
any other matter under any Environmental Law, including CERCLA and applicable
state property transfer laws, whether, with respect to any of such matters, such
Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in
possession, the successor in interest to the Company or any of its Subsidiaries,
or the owner, lessee or operator of any property of the Company or any of its
Subsidiaries by virtue of foreclosure, except, with respect to those matters
referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred
following (A) foreclosure by the Administrative Agent any Lender or any
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Issuer, or the Administrative Agent, any Lender or any Issuer having become the
successor in interest to the Company or any of its Subsidiaries, and (B)
attributable solely to acts of the Administrative Agent, such Lender or such
Issuer or any agent on behalf of the Administrative Agent, or such Lender.
(b) The Borrowers shall indemnify the Administrative Agent, the Lenders and
each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer
harmless from and against, any and all claims for brokerage commissions, fees
and other compensation made against the Administrative Agent, the Lenders and
the Issuers for any broker, finder or consultant with respect to any agreement,
arrangement or understanding made by or on behalf of any Loan Party or any of
its Subsidiaries in connection with the transactions contemplated by this
Agreement.
(c) The Administrative Agent, Lender and each Issuer agree that in the
event that any such investigation, litigation or proceeding set forth in
subparagraph (b) above is asserted or threatened in writing or instituted
against it or any other Indemnitee, or any Remedial Action, is requested of it
or any of its officers, directors, Administrative Agents and employees, for
which any Indemnitee may desire indemnity or defense hereunder, such Indemnitee
shall promptly notify the Borrowers in writing.
(d) The Borrowers, at the request of any Indemnitee, shall have the
obligation to defend against such investigation, litigation or proceeding or
requested Remedial Action and the Borrowers, in any event, may participate in
the defense thereof with legal counsel of the Borrowers' choice. In the event
that such Indemnitee requests the Borrowers to defend against such
investigation, litigation or proceeding or requested Remedial Action, the
Borrowers shall promptly do so and such Indemnitee shall have the right to have
legal counsel of its choice participate in such defense. No action taken by
legal counsel chosen by such Indemnitee in defending against any such
investigation, litigation or proceeding or requested Remedial Action, shall
vitiate or in any way impair the Borrowers' obligation and duty hereunder to
indemnify and hold harmless such Indemnitee.
(e) Each Borrowers agrees that any indemnification or other protection
provided to any Indemnitee pursuant to this Agreement (including pursuant to
this Section 9.4) or any other Loan Document shall (i) survive payment in full
of the Obligations and (ii) inure to the benefit of any Person who was at any
time an Indemnitee under this Agreement or any other Loan Document.
SECTION 9.5. LIMITATION OF LIABILITY. Each Borrower agrees that no
Indemnitee shall have any liability (whether direct or indirect, in contract,
tort or otherwise) to any Loan Party or any of their respective Subsidiaries or
any of their equity holders or creditors for or in connection with the
transactions contemplated hereby and in the other Loan Documents, the Mexican
Intercreditor Agreement and Related Documents, except to the extent such
liability is found in a final judgment by a court of competent jurisdiction to
have resulted from such Indemnitee's gross negligence, willful misconduct or
breach of its obligations under any Loan Document or the Mexican Intercreditor
Agreement. In no event, however, shall any Indemnified Party be liable on any
theory of liability for any special, indirect, consequential or punitive damages
and each Borrower hereby waives, releases and agrees (for itself and on behalf
of its Subsidiaries) not to ▇▇▇ upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
SECTION 9.6. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default each Lender and each Affiliate of a Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or its Affiliates to or for the credit or the
account of the Borrowers against any and all of the Obligations now or hereafter
existing whether or not such Lender shall have made any demand under this
Agreement or any other Loan Document and although such Obligations may be
unmatured. Each Lender agrees promptly to notify the Borrowers after any such
set-off and application made by such Lender or its Affiliates; provided,
however, that the failure to give such notice shall not affect the validity
95
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of such set-off and application. The rights of each Lender under this Section
9.6 are in addition to the other rights and remedies (including other rights of
set-off) which such Lender may have.
SECTION 9.7. SHARING OF PAYMENTS, ETC.
(a) If any Lender shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off or otherwise) on account of the
Term Loans or Revolving Loans made by it (other than pursuant to Sections 2.15,
2.16 or 2.17) in excess of its Ratable Portion of payments obtained by all the
Lenders on account of such Obligations, such Lender (a "Purchasing Lender")
shall forthwith purchase from the other Lenders (each, a "Selling Lender") such
participations in their Loans or other Obligations as shall be necessary to
cause such Purchasing Lender to share the excess payment ratably with each of
them.
(b) If all or any portion of any payment received by a Purchasing Lender is
thereafter recovered from such Purchasing Lender, such purchase from each
Selling Lender shall be rescinded and such Selling Lender shall repay to the
Purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Selling Lender's ratable share (according to the
proportion of (i) the amount of such Selling Lender's required repayment to (ii)
the total amount so recovered from the Purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered.
(c) Each Borrowers agrees that any Purchasing Lender so purchasing a
participation from a Selling Lender pursuant to this Section 9.7 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrowers in the amount of such
participation.
SECTION 9.8. NOTICES, ETC. All notices, demands, requests and other
communications provided for in this Agreement shall be given in writing, or by
any telecommunication device capable of creating a written record, and addressed
to the party to be notified as follows:
(a) if to the Borrowers:
Oxford Automotive, Inc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy no: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to any Lender, at its Domestic Lending Office specified opposite its
name on Schedule II or on the signature page of any applicable Assignment and
Acceptance;
(c) if to any Issuer, at the address set forth under its name page hereof
on Schedule II; and
(d) if to the Administrative Agent:
Citicorp USA, Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as shall be notified in writing (i) in the case of the
Borrowers and the Administrative Agent, to the other parties and (ii) in the
case of all other parties, to the Borrowers and the Administrative Agent. All
such notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device); provided, however, that notices and communications
to the Administrative Agent pursuant to Article II or VIII shall not be
effective until received by the Administrative Agent.
SECTION 9.9. NO WAIVER; REMEDIES. No failure on the part of any Lender,
Issuer or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.10. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agent
and when the Administrative Agent shall have been notified by each Lender that
such Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrowers, the Administrative Agent and each Lender and their
respective successors and assigns, except that no Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 9.11. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
SECTION 9.12. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS; JUDGMENT
CURRENCY.
(a) Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, each Borrower hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, which any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Canadian Borrower hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone no: ▇▇▇ ▇▇▇ ▇▇▇▇) (telecopy no: 212
894 8790) (the "Process Agent"), in the case of any suit, action or proceeding
brought in the United States of America as its designee, appointee and agent to
receive, accept and acknowledge receipt thereof for and on its behalf, and in
respect of its property, service of any and all legal process, summons, notices
and documents that may be served in any action or proceeding arising out of or
in connection with this Agreement or any Loan Document. Such service may be made
by mailing (by registered or certified mail, postage prepaid) or delivering a
copy of such process to such Borrower in care of the Process Agent at the
Process Agent's above address, and each Canadian Borrower hereby irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.
As an alternative method of service, each Borrower irrevocably
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103
consents to the service of any and all process in any such action or proceeding
by the mailing (by registered or certified mail, postage prepaid) of copies of
such process to the Process Agent or each Borrower at its address specified in
Section 9.8. Each Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Section 9.12 shall affect the right of
the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrowers or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York City time) on the Business Day preceding that on which
final judgment is given, for the purchase of Dollars, for delivery two Business
Days thereafter.
SECTION 9.13. WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE LENDERS, THE ISSUERS AND THE
BORROWERS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 9.14. MARSHALING; PAYMENTS SET ASIDE. None of the
Administrative Agent, any Lender or any Issuer shall be under any obligation to
marshal any assets in favor of the Borrowers or any other party or against or in
payment of any or all of the Obligations. To the extent that the Borrowers make
a payment or payments to the Administrative Agent, the Lenders or the Issuers or
any of such Persons receives payment from the proceeds of the Collateral or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
SECTION 9.15. SECTION TITLES. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 9.16. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document.
SECTION 9.17. DOCUMENTS EVIDENCE THE SAME INDEBTEDNESS. Upon its
effectiveness, this Agreement amends and restates in its entirety the Existing
Credit Agreement and the Notes issued under this Agreement, if any, amend and
restate the "Notes" (as defined in the Existing Credit Agreement) issued under
the Existing Credit Agreement. This Agreement and the Notes, if any, do not
constitute and shall not be construed to evidence a novation of or a payment and
readvance of the loan principal, interest and other sums, if any, heretofore
outstanding under the Existing Credit Agreement, it being the intention of the
Borrowers, and by their signature hereto, the Administrative Agent and Lenders,
that this Agreement provide for the terms and conditions of, and the Notes
evidence, upon the effectiveness of this Agreement, the same Indebtedness as was
then outstanding under the Existing Credit
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104
Agreement. Each Lender shall surrender the original "Notes" (as defined in the
Existing Credit Agreement) outstanding on the Effective Date issued to it under
the Existing Credit Agreement.
SECTION 9.18. ENTIRE AGREEMENT. This Agreement, together with all of
the other Loan Documents, the Mexican Intercreditor Agreement and all
certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof; provided, however, the
Company's obligations under the Commitment Letter dated June 9, 2000 addressed
to the Company from Citicorp and the Arranger and accepted by the Company on
June 9, 2000 that survive the termination or expiration of such letter shall
continue to apply to the Company. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all parties shall be lodged with the Borrowers and the Administrative
Agent.
SECTION 9.19. CONFIDENTIALITY. Each Lender and the Administrative Agent
agree to keep information obtained by it pursuant hereto and the other Loan
Documents confidential in accordance with such Lender's or the Administrative
Agent's, as the case may be, customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's or the Administrative Agent's, as the case may be, employees,
representatives and agents who are or are expected to be involved in the
evaluation of such information in connection with the transactions contemplated
by this Agreement and who are advised of the confidential nature of such
information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or the Administrative Agent, as the case may
be, on a non-confidential basis from a source other than the Borrowers, (c) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors, (d) to assignees or
participants or potential assignees or participants who agree to be bound by the
provisions of this Section 9.19 or (e) with the consent of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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105
Schedule I
Commitments
-------------------------- --------------------------------------- --------------------------------- -------------------------------
REVOLVING CREDIT
COMMITMENT TERM LOAN COMMITMENT TOTAL COMMITMENT
-------------------------- --------------------------------------- --------------------------------- -------------------------------
The Bank of US Dollars: $10,714,285.71
Montreal CAD$ Sub-Limit: $6,000,000.00 US Dollars: $4,285,714.29 US Dollars: $15,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
The Bank of US Dollars: $10,714,285.71
New York CAD$ Sub-Limit: N/A US Dollars: $4,285,714.29 US Dollars: $15,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
The Bank of Nova Scotia US Dollars: $8,571,428.57
CAD$ Sub-Limit: $4,800,000.00 US Dollars: $3,428,571.43 US Dollars: $12,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
Citicorp US Dollars: $24,714,285.73
USA, Inc. CAD$ Sub-Limit: $13,840,000.00 US Dollars: $9,885,714.27 US Dollars: $34,600,000.0
-------------------------- --------------------------------------- --------------------------------- -------------------------------
Comerica US Dollars: $17,857,142.86
Bank CAD$ Sub-Limit: N/A US Dollars: $7,142,857.14 US Dollars: $25,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
Credit Suisse First US Dollars: $14,285,714.25
Boston CAD$ Sub-Limit: $8,000,000.00 US Dollars: $5,714,285.71 US Dollars: $20,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
US Dollars: $10,714,285.71
Deutsche Bank CAD$ Sub-Limit: $6,000,000.00 US Dollars: $4,285,714.29 US Dollars: $15,00,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
Fifth Third Bank
Northwestern US Dollars: $7,142,857.14
Ohio, N.A. CAD$ Sub-Limit: N/A US Dollars: $2,857,142.86 US Dollars: $10,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
▇▇▇▇▇▇ Guaranty
Trust Company US Dollars: $10,714,285.71
of New York CAD$ Sub-Limit: $6,000,000.00 US Dollars: $4,285,714.29 US Dollars: $15,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
National Bank US Dollars: $9,571,428.57
of Canada CAD$ Sub-Limit: $5,360,000.00 US Dollars: $3,828,571.43 US Dollars: $13,400,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
TOTAL US TOTAL TOTAL
DOLLARS: $125,000,000.00 US DOLLARS: $50,000,000.00 US DOLLARS: $175,000,000.00
TOTAL CAD$ SUB-LIMIT:
$50,000,000.00
-------------------------- --------------------------------------- --------------------------------- -------------------------------
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Schedule II
Applicable Lending Offices and Addresses for Notice
1. BANK OF MONTREAL:
Domestic Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
(Same as above)
Notices:
(Same as above)
2. THE BANK OF NEW YORK:
Domestic Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
Not applicable.
Notices:
(Same as Domestic Lending Office)
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107
3. THE BANK OF NOVA SCOTIA:
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
(Same as above)
Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
4. CITICORP USA, INC.:
Domestic Lending Office:
▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
CITIBANK CANADA
c/o Citicorp USA, Inc.
(Same as above)
Notices:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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5. COMERICA BANK:
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ - ▇▇-▇▇▇▇
▇▇▇▇▇▇▇, MI 48226
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
Not applicable.
Notices:
(Same as Domestic Lending Office)
6. CREDIT SUISSE FIRST BOSTON:
Domestic Lending Office:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
CREDIT SUISSE FIRST BOSTON CANADA
1 First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices:
(Same as Domestic Lending Office)
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109
7. DEUTSCHE BANK:
Domestic Lending Office:
BANKERS TRUST COMPANY
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
DEUTSCHE BANK CANADA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices:
BANKERS TRUST COMPANY
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK CANADA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
8. FIFTH THIRD BANK, NORTHWESTERN OHIO, N.A.:
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
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Canadian Dollar Lending Office:
Not applicable.
Notices:
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
9. ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK:
Domestic Lending Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
▇▇ ▇▇▇▇▇▇ Canada
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ M5J 2J2
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10. NATIONAL BANK OF CANADA:
Domestic Lending Office:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, V.P.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Eurodollar Lending Office:
(Same as above)
Canadian Dollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, V.P./Mgr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices:
(Same as Domestic Lending Office)
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112
Schedule III
Unrestricted Subsidiaries
1. Oxford Automotive Holdings Espana, S.L.
2. Eines De Metall, S.L.
3. Wackenhut GmbH
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