Exhibit 2
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AMENDED AND RESTATED CREDIT AGREEMENT
among
REFRACO INC.,
ADIENCE, INC.,
REFRACO HOLDINGS LIMITED,
REFRACO (UK) LIMITED,
VARIOUS BANKS,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
__________________________________
Dated as of April 15, 1997
and
Amended and Restated as of January 30, 1998
__________________________________
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TABLE OF CONTENTS
Page
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SECTION 1 Amount and Terms of Credit..................................1
1.01 The Commitments............................................1
1.02 Minimum Amount of Each Borrowing............................8
1.03 Notice of Borrowing.........................................8
1.04 Disbursement of Funds.......................................9
1.05 Notes......................................................10
1.06 Conversions................................................13
1.07 Pro Rata Borrowings........................................14
1.08 Interest...................................................14
1.09 Interest Periods...........................................16
1.10 Increased Costs, Illegality, etc...........................17
1.11 Compensation...............................................20
1.12 Lending Offices; Changes Thereto...........................20
1.13 Replacement of Banks.......................................21
SECTION 2. Letters of Credit..........................................22
2.01 Letters of Credit..........................................22
2.02 Maximum Letter of Credit Outstandings; Final Maturities....23
2.03 Letter of Credit Requests; Notices of Issuance; Minimum
Stated Amount..............................................24
2.04 Letter of Credit Participations............................25
2.05 Agreement to Repay Letter of Credit Drawings...............27
2.06 Increased Costs............................................28
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.....29
3.01 Fees.......................................................29
3.02 Voluntary Termination of Unutilized Commitments............30
3.03 Mandatory Reduction of Commitments.........................30
SECTION 4. Prepayments; Payments; Taxes...............................31
4.01 Voluntary Prepayments......................................31
4.02 Mandatory Repayments and Commitment Reductions.............32
4.03 Method and Place of Payment................................44
SECTION 5. Conditions Precedent to Restatement Effective Date.........47
5.01 Execution of Agreement; Notes..............................47
5.02 Opinions of Counsel........................................47
5.03 Corporate Documents; Proceedings; etc......................48
5.04 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements;
Existing Indebtedness Agreements..........................48
5.05 Floating Rate Loans........................................50
5.06 Consummation of Acquisition; Etc...........................50
5.07 Indebtedness to be Refinanced..............................50
5.08 Adverse Change, etc........................................51
5.09 Litigation.................................................52
5.10 Acknowledgments; Assumptions...............................52
5.11 U.S. Pledge Agreement......................................52
5.12 U.S. Security Agreement....................................52
5.13 U.K. Security Documents....................................53
5.14 Mortgage; Title Insurance..................................53
5.15 Projections; Pro Forma Balance Sheet.......................55
5.16 Solvency Certificate; Environmental Analyses; Insurance
Analyses...................................................55
5.17 Fees, etc..................................................55
5.18 Original Credit Agreement..................................55
5.19. Officer's Certificate.....................................56
SECTION 6. Conditions Precedent to All Credit Events...................56
6.01 No Default; Representations and Warranties..................56
6.02 Notice of Borrowing; Letter of Credit Request...............56
SECTION 7. Representations, Warranties and Agreements..................57
7.01 Corporate and Other Status..................................57
7.02 Corporate and Other Power and Authority.....................57
7.03 No Violation................................................57
7.04 Governmental Approvals......................................58
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc...............................58
7.06 Litigation..................................................59
7.07 True and Complete Disclosure................................59
7.08 Use of Proceeds; Margin Regulations.........................60
7.09 Tax Returns and Payments....................................60
7.10 Compliance with ERISA.......................................61
7.11 The Security Documents......................................62
7.12 Representations and Warranties in Other Documents...........63
7.13 Properties..................................................63
7.14 Capitalization..............................................64
7.15 Subsidiaries................................................64
7.16 Compliance with Statutes, etc. .............................64
7.17 Investment Company Act......................................64
7.18 Public Utility Holding Company Act..........................64
7.19 Environmental Matters.......................................64
7.20 Labor Relations.............................................65
(ii)
7.21 Patents, Licenses, Franchises and Formulas..................65
7.22 Indebtedness................................................66
7.23 Transaction.................................................66
7.24 Special Purpose Corporation.................................66
7.25 No Tax Sharing Agreements...................................66
7.26 Updated Security Agreement and Pledge Agreement Schedules...66
SECTION 8. Affirmative Covenants.......................................67
8.01 Information Covenants.......................................67
(a) Monthly Reports.....................................67
(b) Quarterly Financial Statements......................67
(c) Annual Financial Statements.........................67
(d) Management Letters..................................68
(e) Budgets.............................................68
(f) Officer's Certificates..............................68
(g) Notice of Default or Litigation.....................68
(h) Other Reports and Filings...........................68
(i) Environmental Matters...............................69
(j) Annual Meetings with Banks..........................70
(k) Notices Pursuant to Acquisition Documents...........70
(l) Canadian Working Capital Outstandings...............70
(m) Other Information...................................70
8.02 Books, Records and Inspections..............................70
8.03 Maintenance of Property; Insurance..........................70
8.04 Corporate Franchises........................................71
8.05 Compliance with Statutes, etc. .............................71
8.06 Compliance with Environmental Laws..........................72
8.07 ERISA.......................................................72
8.08 End of Fiscal Years; Fiscal Quarters........................74
8.09 Performance of Obligations..................................74
8.10 Payment of Taxes............................................74
8.11 Additional Security; Further Assurances.....................74
8.12 Foreign Subsidiaries Security...............................76
8.13 Maintenance of Corporate Separateness.......................76
8.14 Ownership of Certain Subsidiaries...........................77
8.15 Acquisition Documents.......................................77
8.16 Permitted Acquisitions......................................77
SECTION 9. Negative Covenants..........................................78
9.01 Liens ......................................................78
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc......81
9.03 Restricted Payments.........................................82
9.04 Indebtedness................................................84
9.05 Advances, Investments and Loans.............................86
9.06 Transactions with Affiliates................................87
(iii)
9.07 Capital Expenditures.......................................88
9.08 Consolidated Fixed Charge Coverage Ratio...................89
9.09 Consolidated Interest Coverage Ratio.......................89
9.10 Maximum Leverage Ratio.....................................89
9.11 Minimum Consolidated EBITDA................................91
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc.................92
9.13 Limitation on Certain Restrictions on Subsidiaries.........92
9.14 Limitation on Issuance of Capital Stock....................92
9.15 Business...................................................93
9.16 Limitation on Creation of Subsidiaries.....................93
SECTION 10. Events of Default.........................................94
10.01 Payments...................................................94
10.02 Representations, etc.......................................94
10.03 Covenants..................................................94
10.04 Default Under Other Agreements.............................94
10.05 Bankruptcy, etc............................................94
10.06 ERISA......................................................95
10.07 Security Documents.........................................96
10.08 Guaranties.................................................96
10.09 Judgments..................................................96
10.10 Change of Control..........................................96
SECTION 11. Definitions and Accounting Terms..........................97
11.01 Defined Terms..............................................97
SECTION 12. The Administrative Agent.................................134
12.01 Appointment...............................................134
12.02 Nature of Duties..........................................134
12.03 Lack of Reliance on the Administrative Agent..............134
12.04 Certain Rights of the Administrative Agent................135
12.05 Reliance..................................................135
12.06 Indemnification...........................................135
12.07 The Administrative Agent in its Individual Capacity.......135
12.08 Holders...................................................136
12.09 Resignation by the Administrative Agent...................136
SECTION 13. Miscellaneous............................................136
13.01 Payment of Expenses, etc..................................137
13.02 Right of Setoff...........................................138
13.03 Notices...................................................138
13.04 Benefit of Agreement; Assignments; Participations.........138
(iv)
13.05 No Waiver; Remedies Cumulative............................140
13.06 Payments Pro Rata.........................................141
13.07 Calculations; Computations................................141
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL............................................142
13.09 Counterparts..............................................143
13.10 Effectiveness.............................................143
13.11 Headings Descriptive......................................144
13.12 Amendment or Waiver; etc..................................144
13.13 Survival..................................................146
13.14 Domicile of Loans.........................................146
13.15 Register..................................................146
13.16 Judgment Currency.........................................146
13.17 Confidentiality...........................................147
13.18 Acknowledgment............................................148
13.19 Limitation on Additional Amounts, etc.....................148
13.20 Acknowledgment and Agreement of Credit Parties............148
13.21 Additions of New Banks; Obligations to Pay Certain Amounts
Owing Pursuant to Original Credit Agreement; Termination of
Commitments of Non-Continuing Banks; Certain Provisions
Regarding Original Banks.................................148
13.22 Post Closing Actions.....................................149
SECTION 14. U.S. Parents Guaranty...................................150
14.01 The Guaranty.............................................150
14.02 Bankruptcy...............................................151
SCHEDULE I Commitments
SCHEDULE II Bank Addresses and Applicable Lending Offices
SCHEDULE III Real Property
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Indebtedness
SCHEDULE VI Insurance
SCHEDULE VII Existing Liens
SCHEDULE VIII Existing Investments
SCHEDULE IX Organization Chart
SCHEDULE X Restrictions Applicable to Adience Subsidiaries
(v)
SCHEDULE XI Calculation of the MLA Cost
SCHEDULE XII Tax Matters
SCHEDULE XIII ERISA Matters
SCHEDULE XIV Labor Matters
SCHEDULE XV Phase I Reports
SCHEDULE XVI Original Letters of Credit
SCHEDULE XVII EBITDA Addback
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Adience B Term Note
EXHIBIT B-2 Newco A Term Note
EXHIBIT B-3 Newco B Term Note
EXHIBIT B-4 Dollar Revolving Note
EXHIBIT B-5 Sterling Revolving Note
EXHIBIT B-6 Swingline Note
EXHIBIT B-7 Adience A Term Note
EXHIBIT B-8 Adience B-2 Term Note
EXHIBIT B-9 Adience C Term Note
EXHIBIT B-10 Sterling Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E Opinion of Proskauer Rose LLP,
U.S. counsel to the Credit Parties
EXHIBIT F Officers' Certificate
EXHIBIT G Subsidiary Assumption Agreement
EXHIBIT H Solvency Certificate
EXHIBIT I Assignment and Assumption Agreement
(vi)
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 15,
1997, and amended and restated as of January 30, 1998, among REFRACO INC., a
Delaware corporation ("Holdings"), ADIENCE, INC., a Delaware corporation
("Adience"), REFRACO HOLDINGS LIMITED, a private limited company organized
under the laws of England with registered number 3354257 ("Newco") and
REFRACO (UK) LIMITED, a private limited liability company organized under the
laws of England with registered number 00054713 ("▇▇▇▇▇▇▇▇" and, together
with Adience and Newco, the "Borrowers" and each a "Borrower"), the Banks
party hereto from time to time, and BANKERS TRUST COMPANY, as Administrative
Agent (all capitalized terms used herein and defined in Section 11 are used
herein as therein defined).
W I T N E S S E T H :
WHEREAS, Holdings, the Borrowers, the Original Banks and
Bankers Trust Company, as Administrative Agent, are parties to a Credit
Agreement, dated as of April 15, 1997 (as the same has been amended, modified
or supplemented to, but not including, the Restatement Effective Date, the
"Original Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the
Original Credit Agreement in the form of this Agreement to, inter alia,
permit the Acquisition and the financing therefor on the terms and subject to
the conditions provided herein and make available to the Borrowers the
respective credit facilities provided for herein;
NOW, THEREFORE, the parties hereto agree that the Original
Credit Agreement shall be and hereby is amended and restated in its entirety
as follows:
SECTION 1 Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms
and conditions set forth in the Original Credit Agreement, each Original Bank
with an Adience B Term Loan Commitment severally agreed to make, on the
Initial Borrowing Date, a term loan or term loans (each an "Adience B Term
Loan" and, collectively, the "Adience B Term Loans") to Adience, which
Adience B Term Loans (i) were made and maintained in Dollars, (ii) were made
and initially maintained as a single Borrowing of Base Rate Loans (subject to
the option to convert such Adience B Term Loans pursuant to Section 1.06 of
the Original Credit Agreement) and (iii) were made by each such Bank in that
initial aggregate principal amount as was equal to the Adience B Term Loan
Commitment of such Bank on the Initial Borrowing Date (before giving effect
to any reductions thereto on such date pursuant to Section 3.03(b)(i) of the
Original Credit Agreement but after giving effect to any reductions thereto
on or prior to such date pursuant to Section 3.03(b)(ii) of the Original
Credit Agreement). The aggregate outstanding principal amount of the Adience
B Term Loans of each Bank, as at the date provided in Schedule I, is
accurately set forth in Schedule I. The Adience B Term Loans of each Bank
outstanding immediately prior to the Restatement Effective Date shall remain
outstanding after giving effect to the occurrence of the Restatement
Effective Date, and shall in no way be affected as a result of the occurrence
of the
Restatement Effective Date. Once repaid, Adience B Term Loans incurred
hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth in
the Original Credit Agreement, each Bank with a Newco A Term Loan Commitment
severally agreed to make, on the Initial Borrowing Date, a term loan or term
loans (each a "Newco A Term Loan" and, collectively, the "Newco A Term
Loans") to Newco, which Newco A Term Loans (i) were made and maintained in
Pounds Sterling and (ii) were made by each such Bank in that initial
aggregate principal amount as was equal to the Newco A Term Loan Commitment
of such Bank on the Initial Borrowing Date (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(c)(i) of the
Original Credit Agreement but after giving effect to any reductions thereto
on or prior to such date pursuant to Section 3.03(c)(ii) of the Original
Credit Agreement). The aggregate outstanding principal amount of the Newco A
Term Loans of each Bank, as at the date provided in Schedule I, is accurately
set forth in Schedule I. The Newco A Term Loans of each Bank outstanding
immediately prior to the Restatement Effective Date shall remain outstanding
after giving effect to the occurrence of the Restatement Effective Date, and
shall in no way be affected as a result of the occurrence of the Restatement
Effective Date. Once repaid, Newco A Term Loans incurred hereunder may not
be reborrowed.
(c) Subject to and upon the terms and conditions set forth in
the Original Credit Agreement, each Bank with a Newco B Term Loan Commitment
severally agreed to make, on the Initial Borrowing Date, a term loan or term
loans (each a "Newco B Term Loan" and, collectively, the "Newco B Term
Loans") to Newco, which Newco B Term Loans (i) were made and maintained in
Dollars, (ii) were made and initially maintained as a single Borrowing of
Base Rate Loans (subject to the option to convert such Newco B Term Loans
pursuant to Section 1.06 of the Original Credit Agreement) and (iii) were
made by each such Bank in that initial aggregate principal amount as was
equal to the Newco B Term Loan Commitment of such Bank on the Initial
Borrowing Date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(d)(i) of the Original Credit Agreement but after
giving effect to any reductions thereto on or prior to such date pursuant to
Section 3.03(d)(ii) of the Original Credit Agreement). The aggregate
outstanding principal amount of the Newco B Term Loans of each Bank, as at
the date provided in Schedule I, is accurately set forth in Schedule I. The
Newco B Term Loans of each Bank outstanding immediately prior to the
Restatement Effective Date shall remain outstanding after giving effect to
the occurrence of the Restatement Effective Date, and shall in no way be
affected as a result of the occurrence of the Restatement Effective Date.
Once repaid, Newco B Term Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Bank with an Adience A Term Loan Commitment severally agrees to
make, on the Restatement Effective Date, a term loan or term loans (each an
"Adience A Term Loan" and, collectively, the "Adience A Term Loans") to
Adience, which Adience A Term Loans (i) shall be made and maintained in
Dollars, (ii) shall be made and initially maintained as a single Borrowing of
Base Rate Loans (subject to the option to convert such Adience A Term Loans
pursuant to Section 1.06) and (iii) shall be made by each such Bank in that
initial aggregate principal amount as is equal to the Adience A Term Loan
Commitment of such Bank on the Restatement Effective Date (before giving
effect to any reductions thereto on such date pursuant to Section 3.03(c)(i)
but after giving
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effect to any reductions thereto on or prior to such date pursuant to Section
3.03(c)(ii)). Once repaid, Adience A Term Loans incurred hereunder may not
be reborrowed.
(e) Subject to and upon the terms and conditions set forth
herein, each Bank with an Adience B-2 Term Loan Commitment severally agrees
to make, on the Restatement Effective Date, a term loan or term loans (each
an "Adience B-2 Term Loan" and, collectively, the "Adience B-2 Term Loans")
to Adience, which Adience B-2 Term Loans (i) shall be made and maintained in
Dollars, (ii) shall be made and initially maintained as a single Borrowing of
Base Rate Loans (subject to the option to convert such Adience B-2 Term Loans
pursuant to Section 1.06) and (iii) shall be made by each such Bank in that
initial aggregate principal amount as is equal to the Adience B-2 Term Loan
Commitment of such Bank on the Restatement Effective Date (before giving
effect to any reductions thereto on such date pursuant to Section 3.03(c)(i)
but after giving effect to any reductions thereto on or prior to such date
pursuant to Section 3.03(c)(ii)). Once repaid, Adience B-2 Term Loans
incurred hereunder may not be reborrowed.
(f) Subject to and upon the terms and conditions set forth
herein, each Bank with an Adience C Term Loan Commitment severally agrees to
make, on the Restatement Effective Date, a term loan or term loans (each an
"Adience C Term Loan" and, collectively, the "Adience C Term Loans") to
Adience, which Adience C Term Loans (i) shall be made and maintained in
Dollars, (ii) shall be made and initially maintained as a single Borrowing of
Base Rate Loans (subject to the option to convert such Adience C Term Loans
pursuant to Section 1.06) and (iii) shall be made by each such Bank in that
initial aggregate principal amount as is equal to the Adience C Term Loan
Commitment of such Bank on the Restatement Effective Date (before giving
effect to any reductions thereto on such date pursuant to Section 3.03(e)(i)
but after giving effect to any reductions thereto on or prior to such date
pursuant to Section 3.03(e)(ii)). Once repaid, Adience C Term Loans incurred
hereunder may not be reborrowed.
(g) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees, at any
time and from time to time on and after the Initial Borrowing Date and prior
to the Revolving Loan Maturity Date, to make a revolving loan or revolving
loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to
the Revolving Loan Borrowers, which Revolving Loans (i) shall, in the case of
Revolving Loans made to Adience, be made and maintained in Dollars (each a
"Dollar Revolving Loan" and, collectively, the "Dollar Revolving Loans"),
which Dollar Revolving Loans shall, at the option of Adience, be incurred and
maintained as, and/or converted into, Base Rate Loans and Eurodollar Loans,
provided that, except as otherwise specifically provided in Section 1.10(b),
all Dollar Revolving Loans comprising the same Borrowing shall at all times
be of the same Type, (ii) shall, in the case of Revolving Loans made to
▇▇▇▇▇▇▇▇, be made and maintained in Pounds Sterling (each a "Sterling
Revolving Loan" and, collectively, the "Sterling Revolving Loans"), (iii) may
be repaid and reborrowed in accordance with the provisions hereof, (iv) shall
not exceed for any Bank at the time of the making of any such Revolving
Loans, and after giving effect thereto, that aggregate principal amount (for
this purpose, using the Dollar Equivalent of each outstanding Sterling
Revolving Loan) which, when added to the sum of (I) the aggregate principal
amount of all other Revolving Loans then outstanding from such Bank (for this
purpose, using the Dollar Equivalent of each Sterling Revolving Loan then
outstanding from such Bank) and (II) the product of (A) such Bank's RL
Percentage and (B) the sum of (x) the aggregate amount (for this
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purpose, using the Dollar Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter
of Credit Outstandings) of all Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at such
time, (y) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding and (z) the aggregate principal amount (for this purpose, using
the Dollar Equivalent of each outstanding Sterling Swingline Loan) of all
Sterling Swingline Loans (exclusive of Sterling Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the
Available Revolving Loan Commitment of such Bank at such time, (v) shall not,
in the case of Dollar Revolving Loans, at any time exceed in aggregate
outstanding principal amount, when added to the sum of (x) the aggregate
principal amount of all other then outstanding Dollar Revolving Loans, (y)
the aggregate amount of all Adience Letter of Credit Outstandings (exclusive
of any Unpaid Drawings with respect thereto which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Dollar Revolving Loans) and (z) the aggregate principal amount
of all Swingline Loans (exclusive of Swingline Loans which are repaid with
the proceeds of, and simultaneously with the incurrence of Dollar Revolving
Loans) then outstanding, the amount of the Dollar Revolving Sub-Limit and
(vi) shall not, in the case of Sterling Revolving Loans, at any time exceed
in aggregate outstanding principal amount, when added to the sum of (x) the
aggregate principal amount of all other then outstanding Sterling Revolving
Loans, (y) the aggregate amount of all ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings
(exclusive of any Unpaid Drawings with respect thereto which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Sterling Revolving Loans) at such time and (z) the aggregate
principal amount of all Sterling Swingline Loans (exclusive of Sterling
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Sterling Revolving
Loans) then outstanding, the amount of the Sterling Revolving Sub-Limit. On
and immediately after the occurrence of the Restatement Effective Date, the
Revolving Loan Commitment for each Bank shall be the amount set forth
opposite such Bank's name in Schedule I hereto directly below the column
entitled "Revolving Loan Commitment" (as same may be (x) reduced from time to
time pursuant to Section 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time
to time as a result of assignments to or from such Bank pursuant to Section
1.13 or 13.04), such that the Total Revolving Loan Commitment (as of the
Restatement Effective Date) shall represent an increase of $15,000,000 over
the Total Revolving Loan Commitment as in effect immediately before the
occurrence of the Restatement Effective Date. In connection with such
increase, the Revolving Loan Borrowers shall, in coordination with the
Administrative Agent and the Banks, repay outstanding Revolving Loans of
certain Banks and, if necessary, incur additional Revolving Loans from other
Banks, in each case so that Banks participate in each Borrowing of Revolving
Loans pro rata on the basis of their Revolving Loan Commitments (as in effect
on the Restatement Effective Date) as provided herein, it being understood
and agreed that the Revolving Loan Borrowers shall pay all breakage or
similar costs of the type described in Section 1.11 incurred by the Banks in
connection with any repayment or reborrowing of Revolving Loans.
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(h) Subject to and upon the terms and conditions set forth
herein, BTCo in its individual capacity agrees to make, from time to time
after the Initial Borrowing Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Swingline Loan" and, collectively,
the "Swingline Loans") to Adience, which Swingline Loans (i) shall be made
and maintained in Dollars, (ii) shall be made and maintained as Base Rate
Loans, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the sum of (I) the aggregate principal amount
of all other Swingline Loans then outstanding, (II) the aggregate principal
amount (for this purpose, using the Dollar Equivalent of each outstanding
Sterling Revolving Loan) of all Revolving Loans then outstanding, (III) the
aggregate amount (for this purpose, using the Dollar Equivalent of all
▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) of all Letter of Credit Outstandings
at such time and (IV) the aggregate principal amount (for this purpose, using
the Dollar Equivalent thereof) of all Sterling Swingline Loans then
outstanding, an amount equal to the Total Available Revolving Loan Commitment
at such time (after giving effect to any reductions to the Total Available
Revolving Loan Commitment on such date), (v) shall not exceed in the
aggregate principal amount at any time outstanding, when combined with the
sum of (I) aggregate principal amount of all Dollar Revolving Loans then
outstanding and (II) the aggregate amount of Adience Letter of Credit
Outstandings at such time, an amount equal to the Dollar Revolving Sub-Limit
and (vi) shall not exceed in aggregate principal amount at any time
outstanding, the Maximum Swingline Amount. BTCo shall not be obligated to
make any Swingline Loans at a time when a Bank Default exists unless BTCo has
entered into arrangements satisfactory to it to eliminate BTCo's risk with
respect to the Defaulting Bank's or Banks' participation in such Swingline
Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL
Percentage of the outstanding Swingline Loans. Notwithstanding anything to
the contrary contained in this Section 1.01(h), BTCo shall not make any
Swingline Loan after it has received written notice from any Borrower or the
Required Banks stating that a Default or an Event of Default exists and is
continuing until such time as BTCo shall have received written notice (i) of
rescission of all such notices from the party or parties originally
delivering such notice, (ii) of the waiver of such Default or Event of
Default by the Required Banks or (iii) that the Administrative Agent in good
faith believes such Default or Event of Default has ceased to exist.
(i) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Dollar Revolving Loans (provided that such notice shall be deemed
to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Dollar
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks with a Revolving Loan Commitment (without giving effect to any reductions
thereto pursuant to the last paragraph of Section 10) pro rata based on each
Bank's RL Percentage (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the
proceeds thereof shall be applied directly to BTCo to repay BTCo for such
outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make
Dollar Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing
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by BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may
not comply with the minimum amount for Borrowings otherwise required
hereunder, (ii) whether any conditions specified in Section 6 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
the date of such Mandatory Borrowing and (v) the amount of the Total
Available Revolving Loan Commitment at such time or the Dollar Revolving
Sub-Limit. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
with respect to Adience), then each such Bank hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from Adience on or
after such date and prior to such purchase) from BTCo such participations in
the outstanding Swingline Loans as shall be necessary to cause such Banks to
share in such Swingline Loans ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10),
provided that (x) all interest payable on the Swingline Loans shall be for
the account of BTCo until the date as of which the respective participation
is required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date
and (y) at the time any purchase of participations pursuant to this sentence
is actually made, the purchasing Bank shall be required to pay BTCo interest
on the principal amount of the participation purchased for each day from and
including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans
hereunder for each day thereafter.
(j) Subject to the terms and conditions set forth herein,
BTCo in its individual capacity agrees to make, from time to time after the
First Amendment Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Sterling Swingline Loan" and,
collectively, the "Sterling Swingline Loans") to ▇▇▇▇▇▇▇▇, which Sterling
Swingline Loans (i) shall be made and denominated in Pounds Sterling, (ii)
shall bear interest as provided in Section 1.08(f), (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed in
aggregate principal amount (for this purpose, using the Dollar Equivalent of
each outstanding Sterling Swingline Loan) at any time outstanding, when
combined with the sum of (I) the aggregate principal amount (for this
purpose, using the Dollar Equivalent thereof) of all other then outstanding
Sterling Swingline Loans, (II) the aggregate principal amount of all
Revolving Loans (for this purpose, using the Dollar Equivalent of each
outstanding Sterling Revolving Loan) then outstanding, (III) the aggregate
amount of Letter of Credit Outstandings (for this purpose, using the Dollar
Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) at
such time and (IV) the aggregate principal amount of all Swingline Loans then
outstanding, an amount equal to the Total Available Revolving Loan Commitment
(after giving effect to any reductions to the Total Available Revolving Loan
Commitment on such date), (v) shall not exceed in the aggregate principal
amount at any time outstanding, when combined with the sum of (I) the
aggregate principal amount of all other Sterling Swingline Loans then
outstanding, (II) the aggregate principal amount of all Sterling Revolving
Loans then outstanding and (III) the aggregate amount of ▇▇▇▇▇▇▇▇ Letter of
Credit Outstandings at such time, an amount equal to the Sterling Revolving
Sub-Limit and (vi) shall not exceed in aggregate principal amount at any
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time outstanding, the Maximum Sterling Swingline Amount. BTCo shall not be
obligated to make any Sterling Swingline Loan at a time when a Bank Default
exists unless BTCo has entered into arrangements satisfactory to it to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Sterling Swingline Loans, including by cash
collateralizing such Defaulting Bank's or Banks' RL Percentage of the
outstanding Sterling Swingline Loans. Notwithstanding anything to the
contrary contained in this Section 1.01(j), BTCo shall not make any Sterling
Swingline Loan after it has received written notice from any Borrower or the
Required Banks stating that a Default or an Event of Default exists and is
continuing until such time as BTCo shall have received written notice (i) of
recission of all such notices, (ii) of the waiver of such Default or Event of
Default by the Required Banks or (iii) that the Administrative Agent in good
faith believes such Default or Event of Default has ceased to exist.
(k) On any Business Day, BTCo may, in its sole discretion,
give notice to the Banks that its outstanding Sterling Swingline Loans shall
be funded with a Borrowing of Sterling Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence
of a Default or an Event of Default under Section 10.05 or upon the exercise
of any of the remedies provided in the last paragraph of Section 10), in
which case a Borrowing of Sterling Revolving Loans (each such Borrowing, a
"Mandatory Sterling Borrowing") shall be made on the immediately succeeding
Business Day by all Banks with a Revolving Loan Commitment (without giving
effect to any reductions thereto pursuant to the last paragraph of Section
10) pro rata based on each Bank's RL Percentage (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the
last paragraph of Section 10) and the proceeds thereof shall be applied
directly to BTCo to repay BTCo for such outstanding Sterling Swingline Loans.
Each such Bank hereby irrevocably agrees to make Sterling Revolving Loans
upon one Business Day's notice pursuant to each Mandatory Sterling Borrowing
in the amount and in the manner specified in the preceding sentence and on
the date specified in writing by BTCo notwithstanding (i) that the amount of
the Mandatory Sterling Borrowing may not comply with the minimum amount for
Borrowings otherwise required hereunder, (ii) whether any conditions
specified in Section 6 are then satisfied, (iii) whether a Default or an
Event of Default then exists, (iv) the date of such Mandatory Sterling
Borrowing and (v) the amount of the Total Available Revolving Loan Commitment
at such time or the Sterling Revolving Sub-Limit. In the event that any
Mandatory Sterling Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under any bankruptcy, reorganization,
dissolution, insolvency, receivership, administration or liquidation or
similar law with respect to ▇▇▇▇▇▇▇▇), then each such Bank hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Sterling Borrowing
would otherwise have occurred, but adjusted for any payments received from
▇▇▇▇▇▇▇▇ on or after such date and prior to such purchase) from BTCo such
participations in the outstanding Sterling Swingline Loans as shall be
necessary to cause such Banks to share in such Sterling Swingline Loans
ratably based upon their respective RL Percentages (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the
last paragraph of Section 10), provided that (x) all interest payable on the
Sterling Swingline Loans shall be for the account of BTCo until the date as
of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to
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this sentence is actually made, the purchasing Bank shall be required to pay
BTCo interest on the principal amount of the participation purchased for each
day from and including the day upon which the Mandatory Sterling Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation, at the rate otherwise applicable to Sterling Swingline Loans.
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing of Term Loans shall not be less than (x)
in the case of Newco B Term Loans, Adience A Term Loans, Adience B Term
Loans, Adience B-2 Term Loans and Adience C Term Loans, $5,000,000 and (y) in
the case of Newco A Term Loans, L2,000,000. The aggregate principal amount of
each Borrowing of Revolving Loans shall not be less than (x) in the case of
Dollar Revolving Loans, $1,000,000 and (y) in the case of Sterling Revolving
Loans, L500,000; provided that (x) Mandatory Borrowings shall be made in the
amounts required by Section 1.01(i) and (y) Mandatory Sterling Borrowings
shall be made in the amounts required by Section 1.01(k). The aggregate
principal amount of each Borrowing of (x) Swingline Loans shall be not less
than $100,000 and (y) Sterling Swingline Loans shall not be less than
L100,000. More than one Borrowing may occur on the same date, but at no time
shall there be outstanding more than 12 Borrowings of Euro Rate Loans.
1.03 Notice of Borrowing. (a) Whenever a Borrower desires
to incur Loans hereunder (excluding Borrowings (w) of Swingline Loans, (x)
Dollar Revolving Loans incurred pursuant to a Mandatory Borrowing, (y)
Sterling Swingline Loans and (z) Sterling Revolving Loans incurred pursuant
to a Mandatory Sterling Borrowing), it shall give the Administrative Agent at
the Notice Office at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Base Rate Loan and
at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each Euro Rate Loan to be incurred
hereunder, provided that any such notice shall be deemed to have been given
on a certain day only if given before 11:00 A.M. (New York time) (or 10:00
A.M. (London time) in the case of Sterling Loans) on such day. Each such
written notice or written confirmation of telephonic notice (each a "Notice
of Borrowing"), except as otherwise expressly provided in Section 1.10, shall
be irrevocable and shall be given by the respective Borrower in the form of
Exhibit A, appropriately completed to specify (i) the name of such Borrower,
(ii) the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing (stated in the Applicable Currency), (iii) the date of such
Borrowing (which shall be a Business Day), (iv) whether the Loans being
incurred pursuant to such Borrowing shall constitute Adience A Term Loans,
Adience B Term Loans, Adience B-2 Term Loans, Adience C Term Loans, Newco A
Term Loans, Newco B Term Loans, Dollar Revolving Loans or Sterling Revolving
Loans, (v) in the case of Dollar Loans, whether the Loans being incurred
pursuant to such Borrowing are to be initially maintained as Base Rate Loans
or Eurodollar Loans and (vi) in the case of Euro Rate Loans, the initial
Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank which is required to make Loans of the Tranche
specified in the respective Notice of Borrowing, notice of such proposed
Borrowing, of such Bank's proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
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(b)(i) Whenever Adience desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on
the date that a Swingline Loan is to be incurred, written notice or
telephonic notice promptly confirmed in writing of each Swingline Loan to be
incurred hereunder. Each such notice shall be irrevocable and specify in
each case (A) the date of Borrowing (which shall be a Business Day) and (B)
the aggregate principal amount of the Swingline Loans to be made pursuant to
such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(i), with Adience irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings
as set forth in Section 1.01(i).
(c)(i) Whenever ▇▇▇▇▇▇▇▇ desires to incur Sterling
Swingline Loans hereunder, it shall give BTCo not later than 12:00 noon
(London time) on the date that a Sterling Swingline Loan is to be incurred,
written notice or telephonic notice promptly confirmed in writing of each
Sterling Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall
be a Business Day) and (B) the aggregate principal amount of the Sterling
Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Sterling Borrowings shall be made upon the
notice specified in Section 1.01(k), with ▇▇▇▇▇▇▇▇ irrevocably agreeing, by
its incurrence of any Sterling Swingline Loan, to the making of the Mandatory
Sterling Borrowings as set forth in Section 1.01(k).
(d) Without in any way limiting the obligation of any
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent, BTCo (in the case of a Borrowing of
Swingline Loans or Sterling Swingline Loans or the Issuing Bank (in the case
of issuance of Letters of Credit), as the case may be, may act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or the Issuing Bank, as the case may be, in good
faith to be from an Authorized Officer of such Borrower prior to receipt of
written confirmation. In each such case, each Borrower hereby waives the
right to dispute the Administrative Agent's or Issuing Bank's record of the
terms of such telephonic notice.
1.04 Disbursement of Funds. No later than 12:00 Noon (New
York time or, in the case of any Sterling Loan to be made available in London
after the Initial Borrowing Date, London time, if so requested by ▇▇▇▇▇▇▇▇)
on the date specified in each Notice of Borrowing (or (w) in the case of
Swingline Loans, no later than 2:00 P.M. (New York time) on the date
specified in Section 1.03(b)(i), (x) in the case of Mandatory Borrowings, no
later than 12:00 Noon (New York time) on the date specified in Section
1.01(i), (y) in the case of Sterling Swingline Loans, no later than 2:00 P.M.
(London time) on the date specified in Section 1.03(c)(i) or (z) in the case
of Mandatory Sterling Borrowings, no later than 12:00 Noon (London Time) on
the date specified in Section 1.01(k)), each Bank with a Commitment of the
respective Tranche will make available its pro rata portion (determined in
accordance with Section 1.07) of each such Borrowing requested to be made on
such date (or in the case of Swingline Loans and Sterling Swingline Loans,
BTCo shall make available the full amount thereof) in the manner provided
below. All such amounts will be made available in Dollars (in the case of
Dollar Loans) or Pounds Sterling (in the case of Sterling Loans), as the case
may be, and in immediately available funds at the
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appropriate Payment Office of the Administrative Agent, and the
Administrative Agent will make available to the relevant Borrower by
depositing to its account at such Payment Office the aggregate of the amounts
so made available by the Banks in the type of funds received. Unless the
Administrative Agent shall have been notified by any Bank prior to the date
of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Bank. If such Bank does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the relevant Borrower and such
Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or such Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
such Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the overnight Federal Funds Rate and (ii) if recovered from such
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the relevant Borrower may have against any Bank as
a result of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) Each Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Bank shall be evidenced
(i) if Adience B Term Loans, by a promissory note duly executed and delivered
by Adience substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each an "Adience B Term Note"
and, collectively, the "Adience B Term Notes"), (ii) if Newco A Term Loans,
by a promissory note duly executed and delivered by Newco substantially in
the form of Exhibit B-2, with blanks appropriately completed in conformity
herewith (each a "Newco A Term Note" and, collectively, the "Newco A Term
Notes"), (iii) if Newco B Term Loans, by a promissory note duly executed and
delivered by Newco substantially in the form of Exhibit B-3, with blanks
appropriately completed in conformity herewith (each a "Newco B Term Note"
and, collectively, the "Newco B Term Notes"), (iv) if Dollar Revolving Loans,
by a promissory note duly executed and delivered by Adience substantially in
the form of Exhibit B-4, with blanks appropriately completed in conformity
herewith (each a "Dollar Revolving Note" and, collectively, the "Dollar
Revolving Notes"), (v) if Sterling Revolving Loans, by a promissory note duly
executed and delivered by ▇▇▇▇▇▇▇▇ substantially in the form of Exhibit B-5,
with blanks appropriately completed in conformity herewith (each a "Sterling
Revolving Note" and, collectively, the "Sterling Revolving Notes"), (vi) if
Swingline Loans, by a promissory note substantially in the form of Exhibit
B-6, with blanks appropriately completed in conformity herewith (the
"Swingline Note"), (vii) if Adience A Term Loans, by a promissory note duly
executed and delivered by Adience substantially in the form of Exhibit B-7
with blanks appropriately completed in conformity herewith (each an "Adience
A Term Note" and, collectively, the "Adience A Term Notes"), (viii) if
Adience ▇-▇
-▇▇-
▇▇▇▇ Loans, by a promissory note duly executed and delivered by Adience
substantially in the form of Exhibit B-8 with blanks appropriately completed
in conformity herewith (each an "Adience B-2 Term Note" and, collectively,
the "Adience B-2 Term Notes"), (ix) if Adience C Term Loans, by a promissory
note duly executed and delivered by Adience substantially in the form of
Exhibit B-9 with blanks appropriately completed in conformity herewith (each
an "Adience C Term Note" and, collectively, the "Adience C Term Notes") and
(x) if Sterling Swingline Loans, by a promissory note substantially in the
form of Exhibit B-10, with blanks appropriately completed in conformity
herewith (the "Sterling Swingline Note").
(b) The Adience B Term Note issued to each Bank that has an
Adience B Term Loan Commitment or outstanding Adience B Term Loans shall (i)
be executed by Adience, (ii) be payable to the order of such Bank and be
dated the Initial Borrowing Date (or if issued thereafter, the date of
issuance), (iii) be in a stated principal amount equal to the Adience B Term
Loans made by such Bank and be payable in Dollars in the outstanding
principal amount of Adience B Term Loans evidenced thereby, (iv) mature on
the B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents (to the extent and in the manner
provided therein).
(c) The Newco A Term Note issued to each Bank that has a
Newco A Term Loan Commitment or outstanding Newco A Term Loans shall (i) be
executed by Newco, (ii) be payable to the order of such Bank and be dated the
Initial Borrowing Date (or if issued thereafter, the date of issuance), (iii)
be in a stated principal amount equal to the Newco A Term Loans made by such
Bank and be payable in Pounds Sterling in the outstanding principal amount of
Newco A Term Loans evidenced thereby, (iv) mature on the A Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Newco A Term Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents (to the extent and in the manner
provided therein).
(d) The Newco B Term Note issued to each Bank that has a
Newco B Term Loan Commitment or outstanding Newco B Term Loans shall (i) be
executed by Newco, (ii) be payable to the order of such Bank and be dated the
Initial Borrowing Date (or if issued thereafter, the date of issuance), (iii)
be in a stated principal amount equal to the Newco B Term Loans made by such
Bank and be payable in Dollars in the outstanding principal amount of Newco B
Term Loans evidenced thereby, (iv) mature on the B Term Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents
(to the extent and in the manner provided therein).
(e) The Adience B-2 Term Note issued to each Bank that has an
Adience B-2 Term Loan Commitment or outstanding Adience B-2 Term Loans shall
(i) be executed by
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Adience, (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date (or if issued thereafter, the date of issuance),
(iii) be in a stated principal amount equal to the Adience B-2 Term Loans
made by such Bank and be payable in Dollars in the outstanding principal
amount of Adience B-2 Term Loans evidenced thereby, (iv) mature on the B-2
Term Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar
Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary
prepayment as provided in Section 4.01, and mandatory repayment as provided
in Section 4.02 and (vii) be entitled to the benefits of this Agreement and
the other Credit Documents (to the extent and in the manner provided therein).
(f) The Adience A Term Note issued to each Bank that has an
Adience A Term Loan Commitment or outstanding Adience A Term Loans shall (i)
be executed by Adience, (ii) be payable to the order of such Bank and be
dated the Restatement Effective Date (or if issued thereafter, the date of
issuance), (iii) be in a stated principal amount equal to the Adience A Term
Loans made by such Bank and be payable in Dollars in the outstanding
principal amount of Adience A Term Loans evidenced thereby, (iv) mature on
the Adience A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents (to the extent and in the manner
provided therein).
(g) The Adience C Term Note issued to each Bank that has an
Adience C Term Loan Commitment or outstanding Adience C Term Loans shall (i)
be executed by Adience, (ii) be payable to the order of such Bank and be
dated the Restatement Effective Date (or if issued thereafter, the date of
issuance), (iii) be in a stated principal amount equal to the Adience C Term
Loans made by such Bank and be payable in Dollars in the outstanding
principal amount of Adience C Term Loans evidenced thereby, (iv) mature on
the C Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents (to the extent and in the manner
provided therein).
(h) The Dollar Revolving Note issued to each Bank that has a
Revolving Loan Commitment or outstanding Dollar Revolving Loans shall (i) be
executed by Adience, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or if issued thereafter, the date of issuance),
(iii) be in a stated principal amount equal to the Revolving Loan Commitment
of such Bank and be payable in Dollars in the outstanding principal amount of
Dollar Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02
and (vii) be entitled to the benefits of this Agreement and the other Credit
Documents (to the extent and in the manner provided therein).
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(i) The Sterling Revolving Note issued to each Bank that has
a Revolving Loan Commitment or outstanding Sterling Revolving Loans shall (i)
be executed by ▇▇▇▇▇▇▇▇, (ii) be payable to the order of such Bank and be
dated the Initial Borrowing Date (or if issued thereafter, the date of
issuance), (iii) be in a stated principal amount equal to the respective
Bank's RL Percentage of the Sterling Revolving Sub-Limit and be payable in
Pounds Sterling in the outstanding principal amount of the Sterling Revolving
Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Sterling Revolving Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents (to the extent and in the manner
provided therein).
(j) The Swingline Note issued to BTCo shall (i) be executed
by Adience, (ii) be payable to the order of BTCo and be dated the Initial
Borrowing Date (or, if issued thereafter, the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Maximum Swingline Amount
and be payable in Dollars in the principal amount of the outstanding
Swingline Loans evidenced thereby from time to time, (iv) mature on the
Swingline Expiry Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01, and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents (to the extent and
in the manner provided therein).
(k) The Sterling Swingline Note issued to BTCo shall (i) be
executed by ▇▇▇▇▇▇▇▇, (ii) be payable to the order of BTCo and be dated the
First Amendment Effective Date (or if issued thereafter, the date of
issuance), (iii) be in a stated principal amount equal to the Maximum
Sterling Swingline Amount and be payable in Pounds Sterling in the principal
amount of the outstanding Sterling Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Sterling Swingline Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents
(to the extent and in the manner provided therein).
(l) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in such notation shall not affect the respective
Borrower's obligations in respect of such Loans.
1.06 Conversions. Adience or Newco (but not in respect of
Newco A Term Loans) as the case may be, shall have the option to convert, on
any Business Day occurring after the Restatement Effective Date (or, in the
case of the Adience A Term Loans, the Adience B-2 Term Loans or the Adience C
Term Loans, the earlier of (i) the 45th day after the Restatement Effective
Date and (ii) the Syndication Date), all or a portion equal to at least (x)
in the case of a conversion of Adience A Term Loans, Adience B Term Loans,
Adience B-2 Term Loans, Adience C Term Loans or Newco B Term Loans,
$5,000,000 and (y) in the case of a conversion
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of Dollar Revolving Loans, $1,000,000, of the outstanding principal amount of
such Dollar Loans made to Adience or Newco, as the case may be, pursuant to
one or more Borrowings (so long as of the same Tranche of Dollar Loans) of
one or more Types of Loans into a Borrowing (of the same Tranche of Dollar
Loans) of another Type of Loan, provided that, (i) except as otherwise
provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable to the Loans
being converted and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made
pursuant to a single Borrowing to less than (x) in the case of a Borrowing of
Adience A Term Loans, B Term Loans or Adience C Term Loans, $5,000,000 and
(y) in the case of a Borrowing of Dollar Revolving Loans, $1,000,000, (ii)
unless the Required Banks otherwise specifically agree, Base Rate Loans may
only be converted into Eurodollar Loans if no Default under Section 10.01 or
10.05 or Event of Default is in existence on the date of the conversion,
(iii) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02
and (iv) Swingline Loans may not be converted pursuant to this Section 1.06.
Each such conversion shall be effected by Adience or Newco, as the case may
be, by giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time or, in the case of Newco B Term Loans, London time) at
least two Business Days' prior notice (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing or Borrowings pursuant
to which such Loans were made and, if to be converted into Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Loans. Upon any such conversion the proceeds thereof
will be deemed to be applied directly on the day of such conversion to prepay
the outstanding principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Adience A Term
Loans, Adience B Term Loans, Adience B-2 Term Loans, Adience C Term Loans,
Newco A Term Loans, Newco B Term Loans and Revolving Loans under this
Agreement shall be incurred from the Banks pro rata on the basis of their
Adience A Term Loan Commitments, Adience B Term Loan Commitments, Adience B-2
Term Loan Commitments, Adience C Term Loan Commitments, Newco A Term Loan
Commitments, Newco B Term Loan Commitments or Revolving Loan Commitments, as
the case may be, provided that all Borrowings of Revolving Loans made
pursuant to a Mandatory Borrowing or a Mandatory Sterling Borrowing, as the
case may be, shall be incurred from the Banks with Revolving Loan Commitments
pro rata on the basis of their RL Percentages. It is understood that no Bank
shall be responsible for any default by any other Bank of its obligation to
make Loans hereunder and that each Bank shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other
Bank to make its Loans hereunder.
1.08 Interest. (a) Each of Adience and Newco hereby
severally agree to pay interest in respect of the unpaid principal amount of
each Base Rate Loan made to it from the date the proceeds thereof are made
available to Adience or Newco, as the case may be, until the earlier of (x)
the maturity thereof (whether by acceleration or otherwise) and (y) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06, at a rate per annum which shall be equal to the sum of the Base Rate in
effect from time to time plus the relevant Applicable Margin.
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(b) Each of Adience and Newco hereby severally agree to pay
interest in respect of the unpaid principal amount of each Eurodollar Loan
made to it from the date the proceeds thereof are made available to Adience
or Newco, as the case may be, until the earlier of (x) the maturity thereof
(whether by acceleration or otherwise) and (y) the conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10,
as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Eurodollar Rate for such
Interest Period plus the relevant Applicable Margin.
(c) Each of Newco and ▇▇▇▇▇▇▇▇ hereby severally agrees to pay
interest in respect of the unpaid principal amount of each Sterling Loan
(other than Sterling Swingline Loans) made to it from the date the proceeds
thereof are made available to Newco or ▇▇▇▇▇▇▇▇, as the case may be, until
the maturity thereof (whether by acceleration or otherwise) at a rate per
annum which shall, during each Interest Period applicable thereto, be equal
to the sum of the Sterling Euro Rate for such Interest Period plus (i) the
MLA Cost and (ii) the relevant Applicable Margin.
(d) ▇▇▇▇▇▇▇▇ hereby agrees to pay interest in respect of the
unpaid principal amount of each Sterling Swingline Loan made to it from the
date the proceeds thereof are made available to it until such Sterling
Swingline Loan is repaid at a rate per annum which shall be equal to the sum
of the Applicable Margin for Sterling Revolving Loans plus the Overnight
LIBOR Rate plus the MLA Cost.
(e) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum (1) in the
case of overdue principal of, and interest or other amounts owing with
respect to, Sterling Loans (other than Sterling Swingline Loans) and amounts
owing with respect to ▇▇▇▇▇▇▇▇ Letters of Credit or ▇▇▇▇▇▇▇▇ Letter of Credit
Outstandings, equal to 2% per annum in excess of the Applicable Margin plus
the Sterling Euro Rate for such successive periods not exceeding three months
as the Administrative Agent may determine from time to time in respect of
amounts comparable to the amount not paid plus the MLA Cost, (2) in the case
of overdue principal of and interest or other amounts owing with respect to,
Sterling Swingline Loans, equal to 2% in excess of the Applicable Margin for
Sterling Revolving Loans plus the Overnight LIBOR Rate plus the MLA Cost and
(3) in all other cases, equal to the greater of (x) 2% per annum in excess of
the rate otherwise applicable to Base Rate Loans of the respective Tranche
(or in the case of amounts which do not relate to a given Tranche of
outstanding Dollar Loans, 2% per annum in excess of the rate otherwise
applicable to Revolving Loans maintained as Base Rate Loans) from time to
time and (y) the rate which is 2% in excess of the rate borne by the
respective such Loans at the time of the payment default, in each case with
such interest to be payable on demand.
(f) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in the case of any Eurodollar Loan, on the date
of any conversion to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10,
as applicable (on the amount so converted), (iii) in respect of each Euro
Rate Loan, on the last day of each Interest Period applicable thereto and, in
the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such
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Interest Period, (iv) in respect of each Sterling Swingline Loan, on the date
of any conversion to a Mandatory Sterling Borrowing and (v) in respect of
each Loan, on any repayment or prepayment (on the amount repaid or prepaid),
at maturity (whether by acceleration or otherwise) and, after such maturity,
on demand.
(g) Upon each Interest Determination Date, the Administrative
Agent shall determine the respective Euro Rate for the respective Interest
Period or Interest Periods to be applicable to Euro Rate Loans and shall
promptly notify the respective Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and
binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Euro Rate Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of
an Interest Period applicable to such Euro Rate Loan (in the case of any
subsequent Interest Period), the respective Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
(each an "Interest Period") applicable to such Euro Rate Loan, which Interest
Period shall, (x) at the option of Adience or Newco, as the case may be, be a
one, two, three or six-month period, and (y) at the option of ▇▇▇▇▇▇▇▇, be a
one, two, three or six-month period, or, if available to each of the Banks
with a Revolving Loan Commitment, a one or two-week period, provided that:
(i) all Euro Rate Loans comprising a single Borrowing shall
at all times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Euro
Rate Loans shall commence on the date of such Borrowing (including,
in the case of Dollar Loans, the date of any conversion thereto
from a Dollar Loan of a different Type) and each Interest Period
occurring thereafter in respect of such Euro Rate Loans shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period for a Euro Rate Loan begins on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period for a Euro Rate Loan would
otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day;
provided, however, that if any Interest Period for a Euro Rate Loan
would otherwise expire on a day which is not a Business Day but is
a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(v) unless the Required Banks otherwise specifically agree, no
Interest Period may be selected at any time when a Default under
Section 10.01 or 10.05 or an Event of Default is then in existence;
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(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the
respective Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of
Adience A Term Loans, Adience B Term Loans, Adience B-2 Term Loans,
Adience C Term Loans, Newco A Term Loans or Newco B Term Loans, as
the case may be, shall be selected which extends beyond any date
upon which a mandatory repayment of such Tranche of Term Loans will
be required to be made under Section 4.02(b)(i), (ii), (iii), (iv),
(v) or (vi), as the case may be, if the aggregate principal amount
of Adience A Term Loans, Adience B Term Loans, Adience B-2 Term
Loans, Adience C Term Loans, Newco A Term Loans or Newco B Term
Loans, as the case may be, which have Interest Periods which will
expire after such date will be in excess of the aggregate principal
amount of Adience A Term Loans, Adience B Term Loans, Adience B-2
Term Loans, Adience C Term Loans, Newco A Term Loans or Newco B Term
Loans, as the case may be, then outstanding less the aggregate
amount of such required repayment.
Prior to the termination of any Interest Period applicable to
Sterling Loans, the respective Borrower may, at its option, designate that
the respective Borrowing subject thereto be split into more than one
Borrowing (for purposes of electing multiple Interest Periods to be
subsequently applicable thereto), so long as each such Borrowing resulting
from the action taken pursuant to this sentence meets the minimum Borrowing
amount for Sterling Loans of the respective Tranche set forth in Section
1.02. If upon the expiration of any Interest Period applicable to a
Borrowing of Euro Rate Loans, the relevant Borrower has failed to elect, or
is not permitted to elect, a new Interest Period to be applicable to such
Euro Rate Loans as provided above, such Borrower shall be deemed to have
elected (x) if Eurodollar Loans, to convert such Eurodollar Loans into Base
Rate Loans and (y) if Sterling Loans, to select a one-month Interest Period
for such Sterling Loans, in either case effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that any Bank shall have determined in good faith (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto but, with respect to clause (i) and (iv) below, may be made only by
the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Restatement Effective Date affecting the
applicable interbank market, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided
for in the definition of the respective Euro Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Euro Rate Loan because of (x) any change arising
after the Restatement Effective Date in any applicable law or
governmental rule, regulation, order, guideline or request (whether
or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new
law or governmental rule, regulation, order, guideline or request,
such as, for
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example, but not limited to: (A) a change in the basis of taxation
of payment to any Bank of the principal of or interest on the Notes
or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or
profits or franchise taxes based on net income of such Bank pursuant
to the laws of the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located or any
subdivision thereof or therein) or (B) a change in official reserve
requirements (except to the extent covered by Section 1.10(d) in
respect of Sterling Loans or included in the computation of the
Eurodollar Rate) or any special deposit, assessment or similar
requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its applicable lending office)
and/or (y) other circumstances since the Restatement Effective Date
affecting such Bank or the applicable interbank market or the
position of such Bank in such market; or
(iii) at any time after the date of this Agreement, that the
making or continuance of any Euro Rate Loan has been made (x) unlawful
by any law or governmental rule, regulation or order, (y) impossible
by compliance by any Bank in good faith with any governmental request
(whether or not having force of law) or (z) impracticable as a result
of a contingency occurring after the Restatement Effective Date which
materially and adversely affects the applicable interbank market; or
(iv) at any time that Pounds Sterling are not available in
sufficient amounts, as determined in good faith by the Administrative
Agent, to fund any Borrowing of Sterling Loans requested pursuant to
Section 1.01;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) or (iv) above) shall promptly give notice (by telephone
promptly confirmed in writing) to the respective Borrower and, except in the
case of clauses (i) and (iv) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit
to each of the other Banks). Thereafter (w) in the case of clause (i) above,
(A) in the event that Eurodollar Loans are so affected, Eurodollar Loans
shall no longer be available until such time as the Administrative Agent
notifies Adience and the Banks that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion given by Adience with respect to Eurodollar
Loans which have not yet been incurred (including by way of conversion) shall
be deemed rescinded by Adience, and (B) in the event that any Sterling Loan
is so affected, the Sterling Euro Rate shall be determined on the basis
provided in the proviso to the definition of Sterling Euro Rate, (x) in the
case of clause (ii) above, the respective Borrower shall, subject to the
provisions of Section 13.19 (to the extent applicable), pay to such Bank,
upon its written request therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing in reasonable detail the basis
for the calculation thereof, submitted to the respective Borrower by such
Bank shall, absent manifest error, be final and conclusive and binding on all
the parties hereto), (y) in the case of clause (iii) above, the respective
Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required by
law and (z) in the case of clause (iv)
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above, Sterling Loans shall no longer be available until such time as the
Administrative Agent notifies Newco, ▇▇▇▇▇▇▇▇ and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no
longer exists, and any Notice of Borrowing giving by Newco or ▇▇▇▇▇▇▇▇, as
the case may be, with respect to such Sterling Loans which have not been
incurred shall be deemed rescinded by Newco or ▇▇▇▇▇▇▇▇, as the case may be.
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective
Borrower may (and in the case of a Euro Rate Loan affected by the
circumstances described in Section 1.10(a)(iii) shall) either (x) if the
affected Euro Rate Loan is then being made initially or pursuant to a
conversion, cancel the respective Borrowing by giving the Administrative
Agent telephonic notice (confirmed in writing) on the same date that such
Borrower was notified by the affected Bank or the Administrative Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Euro Rate
Loan is then outstanding, upon at least three Business Days' written notice
to the Administrative Agent, (A) in the case of a Eurodollar Loan, require
the affected Bank to convert such Eurodollar Loan into a Base Rate Loan and
(B) in the case of a Sterling Loan, repay such Sterling Loan in full,
provided that, (i) if the circumstances described in Section 1.10(a)(iii)
apply to any Sterling Loan, the Borrower may, in lieu of taking the actions
described above, maintain such Sterling Loan outstanding, in which case the
Sterling Euro Rate shall be determined on the basis provided in the proviso
to the definition of Sterling Euro Rate, unless the maintenance of such
Sterling Loan outstanding on such basis would not stop the conditions
described in Section 1.10(iii) from existing (in which case the actions
described above, without giving effect to the proviso, shall be required to
be taken) and (ii) if more than one Bank is affected at any time as described
above in this clause (b), then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If at any time after the Restatement Effective Date any
Bank determines that the introduction of or any change (which introduction or
change shall have occurred after the date of this Agreement) in any
applicable law or governmental rule, regulation, order, guideline, directive
or request (whether or not having the force of law) concerning capital
adequacy, or any change in interpretation or administration thereof by any
governmental authority, central bank or comparable agency, will have the
effect of increasing the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank based on the
existence of such Bank's Commitments hereunder or its obligations hereunder,
then the Borrowers jointly and severally agree to pay, subject to the
provisions of Section 13.19 (to the extent applicable), to such Bank, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Bank will act reasonably and in
good faith and will use averaging and attribution methods which are
reasonable, provided that such Bank's determination of compensation owing
under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon
determining that any additional amounts will be payable pursuant to this
Section 1.10(c), will give prompt written notice thereof to the Borrowers,
which notice shall show in reasonable detail the basis for calculation of
such additional amounts. For the avoidance of doubt, nothing in this Section
1.10(c) shall require any Borrower to pay to any Bank any amount for which it
has already been compensated by way of payment of the MLA Cost.
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(d) In the event that any Bank shall in good faith determine
(which determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto) at any time that such Bank is required to
maintain reserves (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) which
have been established by any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body with
jurisdiction over such Bank (including any branch, Affiliate or funding
office thereof) in respect of any Sterling Loans or any category of
liabilities which includes deposits by reference to which the interest rate
on any Sterling Loan is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank
to non-United States residents, then, unless such reserves are included in
the calculation of the interest rate applicable to such Sterling Loans or in
Section 1.10(a)(ii), such Bank shall promptly notify Newco and ▇▇▇▇▇▇▇▇ in
writing specifying the additional amounts required to indemnify such Bank
against the cost of maintaining such reserves (such written notice to provide
in reasonable detail a computation of such additional amounts) and the
respective Borrower shall pay to such Bank such specified amounts as
additional interest at the time that the respective Borrower is otherwise
required to pay interest in respect of such Sterling Loan or, if later, on
written demand therefor by such Bank.
1.11 Compensation. Each Borrower shall, subject to the
provisions of Section 13.19 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth in reasonable detail
the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits
or other funds required by such Bank to fund its Euro Rate Loans, but
excluding loss of anticipated profits) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Administrative
Agent) a Borrowing of, or conversion from or into, Euro Rate Loans does not
occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn or deemed withdrawn pursuant to Section
1.10(a)); (ii) if any repayment (including any repayment made pursuant to
Section 4.01 or 4.02 or as a result of an acceleration of the Loans pursuant
to Section 10) or conversion of any of such Borrower's Euro Rate Loans occurs
on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of such Borrower's Euro Rate Loans is
not made on any date specified in a notice of prepayment given by such
Borrower; or (iv) as a consequence of (x) any other default by such Borrower
to repay its Loans when required by the terms of this Agreement or any Note
held by such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Lending Offices; Changes Thereto. (a) Each Bank may at
any time or from time to time designate , by written notice to the
Administrative Agent to the extent not already reflected on Schedule II, one
or more lending offices (which, for this purpose, may include Affiliates of
the respective Bank) for the various Loans made, and Letters of Credit
participated in, by such Bank (including by designating a separate lending
office (or Affiliate) to act as such with respect to Dollar Loans and Adience
Letter of Credit Outstandings versus Sterling Loans and ▇▇▇▇▇▇▇▇ Letter of
Credit Outstandings); provided that, for designations made after the
Restatement Effective Date, to the extent such designation shall result in
increased costs under Section 1.10, 2.06 or 4.04 in excess of those which
would be charged in the absence of the designation of a different lending
office (including a different Affiliate of the respective Bank),
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then the Borrowers shall not be obligated to pay such excess increased costs
(although the Borrowers, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay the costs which would
apply in the absence of such designation and any subsequent increased costs
of the type described above resulting from changes after the date of the
respective designation). Each lending office and Affiliate of any Bank
designated as provided above shall, for all purposes of this Agreement, be
treated in the same manner as the respective Bank (and shall be entitled to
all indemnities and similar provisions in respect of its acting as such
hereunder).
(b) Each Bank agrees that on the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 1.10(d), Section 2.06 or Section 4.04 with respect to such
Bank, it will, if requested by the applicable Borrower, use reasonable
efforts (subject to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such Bank
and its lending office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the
operation of such Section. Nothing in this Section 1.12 shall affect or
postpone any of the obligations of any Borrower or the right of any Bank
provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or
fund Unpaid Drawings, (y) upon the occurrence of an event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 1.10(d),
Section 2.06 or Section 4.04 with respect to any Bank which results in such
Bank charging to any Borrower increased costs in excess of those being
generally charged by the other Banks or (z) in the case of certain refusals
by a Bank to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as (and to the extent) provided in Section 13.12, Adience
shall have the right, if no Default under Section 10.01 or 10.05 and no Event
of Default then exists (or, in the case of preceding clause (z), no Default
under Section 10.01 or 10.05 and no Event of Default will exist immediately
after giving effect to such replacement), to either (1) replace such Bank
(the "Replaced Bank") with one or more other Eligible Transferees, none of
whom shall constitute a Defaulting Bank at the time of such replacement
(collectively, the "Replacement Bank") and each of whom shall be required to
be reasonably acceptable to the Administrative Agent or (2) at the option of
Adience, replace only (a) the Revolving Loan Commitment (and outstandings
pursuant thereto) of the Replaced Bank with an identical Revolving Loan
Commitment (and related outstandings) provided by the Replacement Bank or (b)
in the case of a replacement as provided in Section 13.12(b) where the
consent of the respective Bank is required with respect to less than all
Tranches of its Loans or Commitments, the Commitments and/or outstanding Term
Loans of such Bank in respect of each Tranche where the consent of such Bank
would otherwise be individually required, with identical Commitments and/or
Term Loans of the respective Tranche provided by the Replacement Bank,
provided that (i) any replacement pursuant to this Section 1.13 shall be
required to comply with the requirements of Section 13.04(b) (including
without limitation those relating to pro rata assignments) and at the time of
any replacement pursuant to this Section 1.13, the Replacement Bank shall
enter into one or more Assignment and Assumption Agreements pursuant to
Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b)
to be paid by the Replacement Bank) pursuant to which the
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Replacement Bank shall acquire all of the Commitments and outstanding Loans
(or, in the case of the replacement of only (a) the Revolving Loan
Commitment, the Revolving Loan Commitment and outstanding Revolving Loans and
participations in Letter of Credit Outstandings and/or (b) the outstanding
Term Loans and/or Term Loan Commitments of the respective Tranche or
Tranches) of, and in each case (except for the replacement of only the
outstanding Term Loans (and/or Term Loan Commitments, as the case may be) of
one or more Tranches of the respective Bank) participations in Letters of
Credit by, the Replaced Bank and, in connection therewith, shall pay to (x)
the Replaced Bank in respect thereof an amount equal to the sum of (I) the
principal of, and all accrued interest on, all outstanding Loans (or of the
Loans of the respective Tranche or Tranches being replaced) of the Replaced
Bank, (II) all Unpaid Drawings that have been funded by (and not reimbursed
to) such Replaced Bank, together with all then unpaid interest with respect
thereto at such time and (III) all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche, in
the case of the replacement of less than all Tranches of Loans then held by
the respective Replaced Bank) pursuant to Section 3.01, (y) except in the
case of the replacement of only the outstanding Term Loans of one or more
Tranches of a Replaced Bank, each Issuing Bank an amount equal to such
Replaced Bank's RL Percentage of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Bank to such Issuing Bank and (z) in the case of the
replacement of the Revolving Loan Commitments, BTCo an amount equal to such
Replaced Bank's RL Percentage of any Mandatory Borrowing and/or Mandatory
Sterling Borrowing, in each case to the extent such amount was not
theretofore funded by such Replaced Bank and (ii) all obligations of the
Borrowers due and owing to the Replaced Bank at such time (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in
full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Assumption Agreements, the payment
of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section
13.15 and, if so requested by the Replacement Bank, delivery to the
Replacement Bank of the appropriate Note or Notes executed by the respective
Borrower, the Replacement Bank shall become a Bank hereunder and, unless the
respective Replaced Bank continues to have outstanding Term Loans or a
Commitment hereunder, the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.06 and 13.01), which shall survive as to such Replaced Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions set forth herein, each Revolving Loan Borrower may request
that any Issuing Bank issue, at any time and from time to time on and after
the Initial Borrowing Date and prior to the third Business Day prior to the
Revolving Loan Maturity Date (or the 30th day prior to the Revolving Loan
Maturity Date in the case of Trade Letters of Credit), (x) for the account of
such Revolving Loan Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Obligations of such Revolving Loan Borrower or any of its
Subsidiaries, an irrevocable sight standby letter of credit, in a form
customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank (each such standby
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letter of credit, a "Standby Letter of Credit") in support of such L/C
Supportable Obligations and (y) for the account of such Revolving Loan
Borrower and for the benefit of sellers of goods, materials and services used
in the ordinary course of business of such Revolving Loan Borrower or any of
its Subsidiaries an irrevocable sight commercial letter of credit in a form
customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank (each such commercial letter of credit, a
"Trade Letter of Credit", and each such Trade Letter of Credit and each
Standby Letter of Credit, a "Letter of Credit") in support of commercial
transactions of such Revolving Loan Borrower and its Subsidiaries. On the
Restatement Effective Date, all Original Letters of Credit outstanding shall
be deemed to have been issued under this Agreement and shall for all purposes
constitute "Letters of Credit" hereunder.
(b) All (x) Adience Letters of Credit shall be issued, and
denominated, in Dollars and (y) ▇▇▇▇▇▇▇▇ Letters of Credit shall be issued,
and denominated, in Pounds Sterling.
(c) Each Issuing Bank hereby agrees that it will (subject to
terms and conditions contained herein), at any time and from time to time on
and after the Initial Borrowing Date and prior to the third Business Day
prior to the Revolving Loan Maturity Date (or the 30th day prior to the
Revolving Loan Maturity Date in the case of Trade Letters of Credit),
following its receipt of the respective Letter of Credit Request, issue for
the account of the respective Revolving Loan Borrower, subject to the terms
and conditions of this Agreement, one or more Letters of Credit (x) in the
case of Standby Letters of Credit, in support of such L/C Supportable
Obligations of the respective Revolving Loan Borrower or any of its
Subsidiaries as are permitted to remain outstanding without giving rise to a
Default or an Event of Default and (y) in the case of Trade Letters of
Credit, in support of sellers of goods or materials used in the ordinary
course of business of the respective Revolving Loan Borrower or any of its
Subsidiaries as referenced in Section 2.01(a), provided that the respective
Issuing Bank shall be under no obligation to issue any Letter of Credit of
the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Bank from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Bank shall prohibit, or
request that such Issuing Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated) not in effect on the date
hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇
material to it; or
(ii) such Issuing Bank shall have received notice from the
Required Banks prior to the issuance of such Letter of Credit of the
type described in the penultimate sentence of Section 2.03(b).
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
(a) Notwithstanding anything to the contrary contained in this Agreement,
(i) no Letter of Credit shall be
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issued the Stated Amount (for this purpose, using the Dollar Equivalent of
the Stated Amount of each ▇▇▇▇▇▇▇▇ Letter of Credit) of which, when added to
the Letter of Credit Outstandings (for this purpose, using the Dollar
Equivalent of all ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance
of, the respective Letter of Credit) at such time would exceed either (x)
$20,000,000 or (y) when added to the sum of (I) the aggregate principal
amount of all Revolving Loans (for this purpose, using the Dollar Equivalent
of each outstanding Sterling Revolving Loan) then outstanding, (II) the
aggregate principal amount of all Swingline Loans then outstanding and (III)
the aggregate principal amount of all Sterling Swingline Loans (for this
purpose, using the Dollar Equivalent of each outstanding Sterling Swingline
Loan) then outstanding, the Total Available Revolving Loan Commitment at such
time, (ii) no Adience Letter of Credit shall be issued the Stated Amount
(expressed in Dollars) of which, when added to the Adience Letter of Credit
Outstandings (expressed in Dollars) (exclusive of Unpaid Drawings with
respect thereto which are repaid on the date of, and prior to the issuance
of, the respective Adience Letter of Credit) at such time would exceed, when
added to the sum of (I) the aggregate principal amount of all Dollar
Revolving Loans (expressed in Dollars) then outstanding and (II) the
aggregate principal amount of all Swingline Loans (expressed in Dollars) then
outstanding, the Dollar Revolving Sub-Limit, (iii) no ▇▇▇▇▇▇▇▇ Letter of
Credit shall be issued the Stated Amount (expressed in Pounds Sterling) of
which, when added to the ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings (expressed in
Pounds Sterling) (exclusive of Unpaid Drawings with respect thereto which are
repaid on the date of, and prior to the issuance of, the respective ▇▇▇▇▇▇▇▇
Letter of Credit) at such time would exceed, when added to the sum of (I) the
aggregate principal amount of all Sterling Revolving Loans (expressed in
Pounds Sterling) then outstanding and (II) the aggregate principal amount of
all Sterling Swingline Loans (expressed in Pounds Sterling) then outstanding,
the Sterling Revolving Sub-Limit, and (iv) each Letter of Credit shall by its
terms terminate (A) in the case of Standby Letters of Credit, on or before
the earlier of (x) the date which occurs 12 months after the date of the
issuance thereof (although any such Standby Letter of Credit may be
extendible for successive periods of up to 12 months, but not beyond the
third Business Day prior to the Revolving Loan Maturity Date, on terms
acceptable to the Issuing Bank thereof) and (y) the third Business Day prior
to the Revolving Loan Maturity Date and (B) in the case of Trade Letters of
Credit, on or before the earlier of (x) the date which occurs 180 days after
the date of issuance thereof and (y) 30 days prior to the Revolving Loan
Maturity Date.
(b) Notwithstanding the foregoing, in the event a Bank
Default exists, the Issuing Bank shall not be required to issue any Letter of
Credit unless the Issuing Bank has entered into arrangements satisfactory to
it and the respective Revolving Loan Borrower to eliminate the Issuing Bank's
risk with respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing (in Dollars) such Defaulting
Bank's or Banks' RL Percentage of the Letter of Credit Outstandings.
2.03 Letter of Credit Requests; Notices of Issuance; Minimum
Stated Amount. (a) Whenever a Revolving Loan Borrower desires that a Letter
of Credit be issued for its account, such Revolving Loan Borrower shall give
the Administrative Agent and the respective Issuing Bank at least two
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice thereof. Each notice shall be in the form of
Exhibit C (each a "Letter of Credit Request").
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(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the respective Revolving Loan
Borrower that (i) such Letter of Credit may be issued in accordance with, and
will not violate the requirements of, Section 2.02 and (ii) all of the
applicable conditions set forth in Section 5 and 6 shall be met at the time
of such issuance. Unless the respective Issuing Bank has received notice
from the Required Banks before it issues a Letter of Credit that one or more
of the conditions specified in Section 5 are not satisfied on the Restatement
Effective Date or Section 6 are not then satisfied, or that the issuance of
such Letter of Credit would violate Section 2.02, then such Issuing Bank may
issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Bank's usual and customary practices. Upon the
issuance of or amendment or modification to any Standby Letter of Credit, the
respective Issuing Bank shall promptly notify the Banks and the
Administrative Agent of such issuance, amendment or modification and such
notification shall be accompanied by a copy of the issued Standby Letter of
Credit or amendment or modification. For Trade Letters of Credit on which
the Issuing Bank is other than the Administrative Agent, the Issuing Bank
will send to the Administrative Agent by facsimile transmission, promptly on
the first Business Day of each week, the daily aggregate Stated Amount of
Trade Letters of Credit issued by such Issuing Bank and outstanding during
the preceding week. The Administrative Agent shall deliver to each Bank,
after each calendar month end and upon each payment of the Letter of Credit
Fee, a report setting forth for the relevant period the daily aggregate
Stated Amount of all outstanding Trade Letters of Credit during such period.
(c) Each Issuing Bank shall, on the date of issuance of a
Letter of Credit by it, give the Administrative Agent, each Bank and the
Revolving Loan Borrowers written notice of the issuance of such Letter of
Credit, accompanied by a copy to the Administrative Agent of the Letter of
Credit or Letters of Credit issued by it.
(d) The initial Stated Amount of each Letter of Credit shall
not be less than (x) in the case of Adience Letters of Credit, $50,000 and
(y) in the case of ▇▇▇▇▇▇▇▇ Letters of Credit, L50,000, or in each case such
lesser amount as is acceptable to the respective Issuing Bank.
2.04 Letter of Credit Participations. (a) Immediately upon
the issuance by the respective Issuing Bank of any Letter of Credit, such
Issuing Bank shall be deemed to have sold and transferred to each Bank with a
Revolving Loan Commitment, other than such Issuing Bank (each such Bank, in
its capacity under this Section 2.04, a "Participant"), and each such
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation in, to the extent of such Participant's
RL Percentage in such Letter of Credit, each drawing or payment made
thereunder and the obligations of the Revolving Loan Borrowers under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees shall be paid directly to
the Administrative Agent for the ratable account of the Participants as
provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any Facing Fees). Upon any change in the Revolving
Loan Commitments or RL Percentages of the Banks pursuant to Section 1.13 or
13.04, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
partici-
-25-
pations pursuant to this Section 2.04 to reflect the new RL Percentages of
the assignor and assignee Bank, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the respective Issuing Bank shall have no obligation relative to the other
Banks other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for such Issuing
Bank any resulting liability to either Revolving Loan Borrower, any other
Credit Party, any Bank or any other Person.
(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the respective Revolving Loan Borrower shall
not have reimbursed such amount in full to such Issuing Bank pursuant to
Section 2.05(a), such Issuing Bank shall promptly notify the Administrative
Agent, which shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to such Issuing Bank the
amount of such Participant's RL Percentage of such unreimbursed payment (x)
in Dollars and in same day funds. If the Administrative Agent so notifies,
prior to 11:00 A.M. (New York time) on any Business Day, any Participant
required to fund a payment under a Letter of Credit, such Participant shall
make available to such Issuing Bank, in Dollars, such Participant's RL
Percentage of the amount of such payment (or, in the case of payments made in
Pounds Sterling, the Dollar Equivalent thereof) on such Business Day in same
day funds. If and to the extent such Participant shall not have so made its
RL Percentage of the amount of such payment available to such Issuing Bank,
such Participant agrees to pay to such Issuing Bank, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to such Issuing Bank at the overnight Federal Funds
Rate for the first three days and at the interest rate applicable to Dollar
Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter. The failure of any Participant to make available to such Issuing
Bank its RL Percentage of any payment under any Letter of Credit shall not
relieve any other Participant of its obligation hereunder to make available
to such Issuing Bank its RL Percentage of any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to such Issuing Bank such
other Participant's RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to
each Participant which has paid its RL Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such
Participant.
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(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the respective Revolving Loan Borrower or any of its
Subsidiaries or Affiliates may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the
Administrative Agent, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between the respective Revolving Loan Borrower
or any Subsidiary or Affiliate of the respective Revolving Loan
Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) Each
Revolving Loan Borrower hereby severally agrees to reimburse the respective
Issuing Bank, by making payment in Dollars directly to such Issuing Bank, for
any payment or disbursement (or, in the case of payments or disbursements
made in Pounds Sterling, the Dollar Equivalent thereof) made by such Issuing
Bank under any Letter of Credit issued for the account of such Revolving Loan
Borrower (with each such amount so paid, until reimbursed, an "Unpaid
Drawing"), immediately after, and in any event on the date of, such payment
or disbursement, with interest on the amount so paid or disbursed by such
Issuing Bank, to the extent not reimbursed prior to 2:00 P.M. (New York time
or, in the case of ▇▇▇▇▇▇▇▇ Letters of Credit, London time) on the date of
such payment or disbursement, from and including the date paid or disbursed
to but excluding the date such Issuing Bank was reimbursed by Adience or
▇▇▇▇▇▇▇▇, as the case may be, therefor at a rate per annum which shall be the
Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans; provided, however, to the
extent such amounts are not reimbursed prior to 12:00 Noon (New York time or,
in the case of ▇▇▇▇▇▇▇▇ Letters of Credit, London time) on the third Business
Day following the receipt by Adience or ▇▇▇▇▇▇▇▇, as the case may be, of
notice of such payment or disbursement or upon the occurrence of a Default or
an Event of Default under Section 10.05, interest shall thereafter accrue on
the amounts so paid or disbursed by such Issuing Bank (and until reimbursed
by Adience or ▇▇▇▇▇▇▇▇, as the case may
-27-
be) at a rate per annum which shall be the Base Rate in effect from time to
time plus the Applicable Margin for Revolving Loans maintained as Base Rate
Loans plus 2%, in each such case, with interest to be payable on demand. The
respective Issuing Bank shall give Adience or ▇▇▇▇▇▇▇▇, as the case may be,
prompt written notice of each Drawing under any Letter of Credit, provided
that the failure to give any such notice shall in no way affect, impair or
diminish the respective Revolving Loan Borrower's obligations hereunder.
(b) The obligations of Adience (with respect to Adience
Letters of Credit) and of ▇▇▇▇▇▇▇▇ (with respect to ▇▇▇▇▇▇▇▇ Letters of
Credit) under this Section 2.05 to reimburse the respective Issuing Bank with
respect to Unpaid Drawings (including, in each case, interest thereon) shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
respective Revolving Loan Borrower may have or have had against any Bank
(including in its capacity as issuer of the Letter of Credit or as
Participant), including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit (each a "Drawing") to conform
to the terms of the Letter of Credit or any nonapplication or misapplication
by the beneficiary of the proceeds of such Drawing; provided that any
reimbursement made by Adience or ▇▇▇▇▇▇▇▇, as the case may be, shall be
without prejudice to any claim it may have against such Issuing Bank as a
result of such Issuing Bank's gross negligence or willful misconduct.
2.06 Increased Costs. If at any time after the Restatement
Effective Date, the introduction of or any change in any applicable law,
rule, regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank
or any Participant with any request or directive by any such authority
(whether or not having the force of law), shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Bank or participated in by
any Participant, or (ii) impose on any Issuing Bank or any Participant any
other conditions relating, directly or indirectly, to this Agreement; and the
result of any of the foregoing is to increase the cost to any Issuing Bank or
any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by any Issuing
Bank or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on,
or determined by reference to, the net income or profits or franchise taxes
based on net income of such Issuing Bank or such Participant pursuant to the
laws of the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), then, upon written demand to Adience or ▇▇▇▇▇▇▇▇, as the case may
be, by such Issuing Bank or any Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Administrative
Agent), Adience or ▇▇▇▇▇▇▇▇, as the case may be, shall, subject to the
provisions of Section 13.19 (to the extent applicable), pay to such Issuing
Bank or such Participant such additional amount or amounts as will compensate
such Bank for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Any Issuing Bank or any
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.06, will give prompt written notice thereof to
Adience or ▇▇▇▇▇▇▇▇, as the case may be, which notice shall include a
certificate submitted to Adience or ▇▇▇▇▇▇▇▇, as the case may be, by such
Issuing Bank or such Participant (a copy of which certificate shall be sent
by such Issuing Bank or such Participant to
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the Administrative Agent), setting forth in reasonable detail the basis for
the calculation of such additional amount or amounts necessary to compensate
such Issuing Bank or such Participant. The certificate required to be
delivered pursuant to this Section 2.06 shall, absent manifest error, be
final and conclusive and binding on Adience.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) The Revolving Loan Borrowers jointly and
severally agree to pay to the Administrative Agent in Dollars for
distribution to each Bank with a Revolving Loan Commitment a commitment
commission (the "Commitment Commission") for the period from and including
the Original Effective Date to but excluding the Revolving Loan Maturity Date
(or such earlier date as the Total Revolving Loan Commitment shall have been
terminated), computed at a rate for each day equal to 1/2 of 1% per annum on
the daily average Unutilized Revolving Loan Commitment of such Bank. Accrued
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Revolving Loan Maturity Date or such
earlier date upon which the Total Revolving Loan Commitment is terminated.
(b) Each of Adience and ▇▇▇▇▇▇▇▇ agrees to pay to the
Administrative Agent for distribution to each Bank with a Revolving Loan
Commitment (based on their respective RL Percentages) in Dollars a fee in
respect of each Letter of Credit issued hereunder for the account of such
Revolving Loan Borrower (with all fees payable as described in this clause
(b) being herein referred to as "Letter of Credit Fees"), for the period from
and including the date of issuance of the respective Letter of Credit to and
including the date of termination of such Letter of Credit (or, in the case
of a Trade Letter of Credit, the date of the stated expiration thereof),
computed at a rate per annum equal to the Applicable Margin for Revolving
Loans maintained as Eurodollar Loans on the daily Stated Amount (for this
purpose, using the Dollar Equivalent of the Stated Amount of each ▇▇▇▇▇▇▇▇
Letter of Credit) of such Letter of Credit (or, in the case of a Trade Letter
of Credit, on the initial Stated Amount (for this purpose, using the Dollar
Equivalent of the Stated Amount of each ▇▇▇▇▇▇▇▇ Letter of Credit) of such
Letter of Credit). Accrued Letter of Credit Fees payable with respect to
Standby Letters of Credit shall be due and payable by the respective
Revolving Loan Borrower quarterly in arrears on each Quarterly Payment Date
and on the first day after the termination of the Total Revolving Loan
Commitment upon which no Standby Letters of Credit remain outstanding and all
Letter of Credit Fees payable with respect to each Trade Letter of Credit
shall be due and payable on the date of issuance of such Trade Letter of
Credit.
(c) Each of Adience and ▇▇▇▇▇▇▇▇ agrees to pay to each
Issuing Bank, for its own account, in Dollars a facing fee in respect of each
Letter of Credit issued by such Issuing Bank for the account of such
Revolving Loan Borrower (the "Facing Fee"), (x) in the case of each Standby
Letter of Credit, for the period from and including the date of issuance of
such Standby Letter of Credit to and including the date of the termination of
such Standby Letter of Credit, computed at a rate equal to 1/4 of 1% per
annum of the daily Stated Amount (for this purpose, using the Dollar
Equivalent of the Stated Amount of each ▇▇▇▇▇▇▇▇ Letter of Credit) of such
Standby Letter of Credit, provided, that in no event shall the annual Facing
Fee with respect to any Standby Letter of Credit be less than $500 (being
herein called the "Minimum Facing Fee Amount" for any Letter of Credit), it
being agreed that, on the date of issuance of any Standby
-29-
Letter of Credit and on each anniversary thereof prior to the termination of
such Standby Letter of Credit, if the Minimum Facing Fee Amount will exceed
the amount of Facing Fees that will accrue with respect to such Standby
Letter of Credit for the immediately succeeding 12-month period, the full
Minimum Facing Fee Amount shall be payable on the date of issuance of such
Standby Letter of Credit and on each anniversary thereof prior to the
termination of such Standby Letter of Credit, and (y) in the case of each
Trade Letter of Credit, in an amount equal to the greater of (A) 1/4 of 1% of
the Stated Amount (for this purpose, using the Dollar Equivalent of the
Stated Amount of each ▇▇▇▇▇▇▇▇ Letter of Credit) of such Trade Letter of
Credit as of the date of issuance thereof and (B) the Minimum Facing Fee
Amount. Except as otherwise provided in the proviso to the immediately
preceding sentence, accrued Facing Fees payable with respect to Standby
Letters of Credit shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day after the termination of the
Total Revolving Loan Commitment upon which no Standby Letters of Credit
remain outstanding and all Facing Fees payable with respect to each Trade
Letter of Credit shall be due and payable on the date of issuance of such
Trade Letter of Credit.
(d) The respective Revolving Loan Borrower shall pay, upon
each payment under, issuance of, or amendment to, any Letter of Credit, such
amount as shall at the time of such event be the administrative charge and
the reasonable expenses which the applicable Issuing Bank is generally
imposing in connection with such occurrence with respect to letters of credit
denominated in the respective Applicable Currency.
(e) The Borrowers shall pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrowers and the Administrative Agent.
3.02 Voluntary Termination of Unutilized Commitments. Upon
at least three Business Days' prior notice to the Administrative Agent at the
Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Banks), Adience shall have the right, at any time or from time
to time, without premium or penalty, to terminate the Total Unutilized
Revolving Loan Commitment, in whole or in part, in integral multiples of
$500,000 in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each
Bank with such a Commitment.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitments (and the Adience A Term Loan Commitment, the Adience B-2 Term
Loan Commitment, the Adience C Term Loan Commitment, and the Revolving Loan
Commitment of each Bank) shall terminate in their entirety on February 15,
1998 and the Original Credit Agreement shall continue in effect unless the
Restatement Effective Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, each of the Total Adience B Term Loan
Commitment, the Total Newco A Term Loan Commitment and the Total Newco B
Term Loan Commitment (and the Adience B Term Loan Commitment, the Newco A
Term Loan Commitment and the Newco B Term Loan Commitment of each Bank)
terminated in full on the Initial Borrowing Date (after giving effect to the
Original Loans on such date).
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(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Adience A Term Loan Commitment shall
(i) terminate in its entirety on the Restatement Effective Date (after giving
effect to the making of the Adience A Term Loans on such date) and (ii) prior
to the termination of the Total Adience A Term Loan Commitment as provided in
clause (i) above, be reduced from time to time to the extent required by
Section 4.02.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Adience B-2 Term Loan Commitment
shall (i) terminate in its entirety on the Restatement Effective Date (after
giving effect to the making of the Adience B-2 Term Loans on such date) and
(ii) prior to the termination of the Total Adience B-2 Term Loan Commitment
as provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Adience C Term Loan Commitment shall
(i) terminate in its entirety on the Restatement Effective Date (after giving
effect to the making of the Adience C Term Loans on such date) and (ii) prior
to the termination of the Total Adience C Term Loan Commitment as provided in
clause (i) above, be reduced from time to time to the extent required by
Section 4.02.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on
the Revolving Loan Maturity Date.
(g) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Restatement Effective
Date upon which a mandatory repayment of Term Loans or a mandatory reduction
to the Total Term Loan Commitment pursuant to any of Sections 4.02(c), (d),
(e) and (g) is required (and exceeds in amount the aggregate principal amount
of Term Loans then outstanding) or would be required if Term Loans were then
outstanding, the Total Revolving Loan Commitment shall be permanently reduced
by the amount, if any, by which the amount required to be applied pursuant to
said Sections (determined as if an unlimited amount of Term Loans were
actually outstanding) exceeds the aggregate principal amount of Term Loans
then outstanding.
(h) Each reduction to the Total Adience A
Term Loan Commitment, the Total Adience B-2 Term Loan Commitment, the Total
Adience C Term Loan Commitment and the Total Revolving Loan Commitment
pursuant to this Section 3.03 (or pursuant to Section 4.02) shall be applied
proportionately to reduce the Adience A Term Loan Commitment, the Adience B-2
Term Loan Commitment, the Adience C Term Loan Commitment or the Revolving
Loan Commitment, as the case may be, of each Bank with such a Commitment.
SECTION 4. Prepayments; Payments; Taxes. 4.01
Voluntary Prepayments. Each Borrower shall have the right to prepay the
Loans made to such Borrower, without premium or penalty, in whole or in part
at any time and from time to time on the following terms and conditions: (i)
such Borrower shall give the Administrative Agent prior to 12:00 Noon (New
York time or, in the case of Sterling Loans,
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London time) at the Notice Office (x) in the case of Base Rate Loans, at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay such Base Rate Loans (or same
day notice in the case of (x) Swingline Loans, provided such notice is given
prior to 11:00 A.M. (New York time) and (y) Sterling Swingline Loans,
provided such notice is given prior to 11:00 A.M. (London time)) and (y) in
all other cases, at least two Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Euro
Rate Loans, whether Adience A Term Loans, Adience B Term Loans, Adience B-2
Term Loans, Adience C Term Loans, Newco A Term Loans, Newco B Term Loans,
Dollar Revolving Loans, Sterling Revolving Loans, Swingline Loans or Sterling
Swingline Loans shall be prepaid, the amount of such prepayment and the Types
of Loans to be prepaid and, in the case of Euro Rate Loans, the specific
Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks; (ii) each
prepayment shall be in an aggregate principal amount of at least (x) in the
case of Dollar Loans, $1,000,000 (or $100,000 in the case of Swingline Loans)
and (y) in the case of Sterling Loans, at least L500,000 (or L50,000 in the
case of Sterling Swingline Loans), provided that if any partial prepayment of
Euro Rate Loans made pursuant to any Borrowing shall reduce the outstanding
Euro Rate Loans made pursuant to such Borrowing to an amount less than the
respective Minimum Borrowing Amount for such Tranche and Type of Loans, then
(x) in the case of Dollar Loans, such Borrowing may not be continued as a
Borrowing of Euro Rate Loans and any election of an Interest Period with
respect thereto given by Adience or Newco, as the case may be, shall have no
force or effect and (y) in the case of a Borrowing of Sterling Loans, such
Borrowing shall be required to be prepaid in full at such time; (iii) each
prepayment in respect of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans; (iv) each voluntary prepayment of Newco
Term Loans pursuant to this Section 4.01(a) shall be applied pro rata to each
Tranche of Newco Term Loans (based upon the then outstanding principal amount
of Newco A Term Loans and Newco B Term Loans); (v) each voluntary prepayment
of Adience Term Loans pursuant to this Section 4.01 shall be applied pro rata
to each Tranche of Adience Term Loans (based upon the then outstanding
principal amount of each Tranche of Adience Term Loans); and (vi) each
voluntary prepayment of any Tranche of Term Loans (after giving effect to any
applicable requirements set forth above) shall apply to reduce the then
remaining Scheduled Repayments of such Tranche of Term Loans on a pro rata
basis (based upon the then remaining principal amounts of such Scheduled
Repayments of the respective Tranche of Term Loans, after giving effect to
all prior reductions thereto).
4.02 Mandatory Repayments and Commitment Reductions. (a) (i)
On any day on which the sum of (I) the aggregate outstanding principal amount
of Swingline Loans, (II) the aggregate outstanding principal amount of
Sterling Swingline Loans (for this purpose, using the Dollar Equivalent
thereof), (III) the aggregate outstanding principal amount of Revolving Loans
(for this purpose, using the Dollar Equivalent thereof in the case of
outstanding Sterling Revolving Loans) and (IV) the aggregate amount of Letter
of Credit Outstandings (for this purpose, using the Dollar Equivalent thereof
in the case of ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) exceeds the Total
Available Revolving Loan Commitment as then in effect, the Revolving Loan
Borrowers shall prepay on such day the principal of Swingline Loans and,
after the Swingline Loans have been repaid in full, Sterling Swingline Loans
and, after the Sterling Swingline Loans have been repaid in full, Revolving
Loans (allocated between Dollar Revolving Loans and Sterling
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Revolving Loans as the Revolving Loan Borrowers may elect) in an amount (for
this purpose, taking the Dollar Equivalent of payments in Pounds Sterling
made with respect to the Sterling Swingline Loans and Sterling Revolving
Loans) equal to such excess. If, after giving effect to the prepayment in
full of all outstanding Swingline Loans, Sterling Swingline Loans and
Revolving Loans, the aggregate amount of the Letter of Credit Outstandings
(for this purpose, using the Dollar Equivalent thereof in the case of
▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) exceeds the Total Available Revolving
Loan Commitment as then in effect, the respective Revolving Loan Borrowers
shall pay to the Administrative Agent at the appropriate Payment Office on
such day an amount of cash or Cash Equivalents or Foreign Cash Equivalents
equal to the amount of such excess (up to a maximum amount equal to the
Letter of Credit Outstandings at such time), such cash, Cash Equivalents or
Foreign Cash Equivalents to be held as security for all obligations of the
respective Revolving Loan Borrower or Borrowers hereunder in a cash
collateral account to be established by the Administrative Agent, provided
that so long as no Default under Section 10.01 or 10.05 and no Event of
Default is then in existence, such cash, Cash Equivalents or Foreign Cash
Equivalents shall be released (subject to continued compliance with clauses
(ii) and (iii) below) to the respective Revolving Loan Borrower at such time
(if any), as, and to the extent that, the aggregate amount of such cash, Cash
Equivalents and Foreign Cash Equivalents at such time on deposit with the
Administrative Agent exceeds the amount by which the Letter of Credit
Outstandings at such time exceed the amount of the Total Available Revolving
Loan Commitment as then in effect.
(ii) If on any date the sum of (I) the aggregate outstanding
principal amount of Swingline Loans, (II) the aggregate outstanding principal
amount of Dollar Revolving Loans and (III) the aggregate amount of Adience
Letter of Credit Outstandings exceeds the Dollar Revolving Sub-Limit as then
in effect, Adience shall prepay on such day principal of outstanding
Swingline Loans and, after the Swingline Loans have been repaid in full,
Dollar Revolving Loans in an amount equal to such excess. If, after giving
effect to the prepayment in full of all outstanding Swingline Loans and
Dollar Revolving Loans, the aggregate amount of the Adience Letter of Credit
Outstandings exceeds the Dollar Revolving Sub-Limit as then in effect,
Adience shall pay to the Administrative Agent at the appropriate Payment
Office on such day an amount of cash or Cash Equivalents equal to the amount
of such excess (up to a maximum amount equal to the Adience Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of Adience hereunder in a cash collateral
account to be established by the Administrative Agent, provided that, so long
as no Default under Section 10.01 or 10.05 and no Event of Default is then
existence, such cash or Cash Equivalents shall be released (subject to
continued compliance with preceding clause (i)) to Adience at such time (if
any) as, and to the extent that, the aggregate amount of such cash and Cash
Equivalents at such time on deposit with the Administrative Agent exceed the
amount by which the Adience Letter of Credit Outstandings at such time exceed
the amount of the Dollar Revolving Sub-Limit as then in effect.
(iii) If on any date the sum of (I) the aggregate
outstanding principal amount of Sterling Revolving Loans, (II) the aggregate
outstanding principal amount of Sterling Swingline Loans and (III) the
aggregate amount of ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings exceeds the
Sterling Revolving Sub-Limit as then in effect, ▇▇▇▇▇▇▇▇ shall prepay on such
day the principal of outstanding Sterling Swingline Loans and, after the
Sterling Swingline Loans have been repaid in full, Sterling Revolving Loans
in an amount equal to such excess. If, after giving effect to the
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prepayment in full of all outstanding Sterling Swingline Loans and Sterling
Revolving Loans, the aggregate amount of the ▇▇▇▇▇▇▇▇ Letter of Credit
Outstandings exceeds the Sterling Revolving Sub-Limit as then in effect,
▇▇▇▇▇▇▇▇ shall pay to the Administrative Agent at the appropriate Payment Office
on such day an amount of cash, Cash Equivalents or Foreign Cash Equivalents
equal to the amount of such excess (up to a maximum amount equal to the ▇▇▇▇▇▇▇▇
Letter of Credit Outstandings at such time), such cash, Cash Equivalents or
Foreign Cash Equivalents to be held as security for all obligations of ▇▇▇▇▇▇▇▇
hereunder in a cash collateral account to be established by the Administrative
Agent, provided that, so long as no Default under Section 10.01 or 10.05 and no
Event of Default is then in existence, such cash, Cash Equivalents or Foreign
Cash Equivalents shall be released (subject to continued compliance with
preceding clause (i)) to ▇▇▇▇▇▇▇▇ at such time (if any), as, and to the extent
that, the aggregate amount of such cash, Cash Equivalents and Foreign Cash
Equivalents at such time on deposit with the Administrative Agent exceeds the
amount by which the ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings at such time exceed
the amount of the Sterling Revolving Sub-Limit as then in effect.
(b)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, Adience shall be required to repay that principal amount of Adience B
Term Loans, to the extent then outstanding, as is set forth opposite such
date (each such repayment, as the same may be reduced as provided in Sections
4.01 and 4.02(h) through (j), inclusive, an "Adience B Scheduled Repayment,"
and each such date, an "Adience B Scheduled Repayment Date"):
Adience B
Scheduled Repayment Date Amount
------------------------ ------
January 31, 1998 $112,500
April 30, 1998 $112,500
July 31, 1998 $112,500
October 31, 1998 $112,500
January 31, 1999 $112,500
April 30, 1999 $112,500
July 31, 1999 $112,500
October 31, 1999 $112,500
January 31, 2000 $112,500
April 30, 2000 $112,500
July 31, 2000 $112,500
October 31, 2000 $112,500
January 31, 2001 $112,500
April 30, 2001 $112,500
July 31, 2001 $112,500
October 31, 2001 $112,500
January 31, 2002 $112,500
April 30, 2002 $112,500
July 31, 2002 $112,500
October 31, 2002 $112,500
January 31, 2003 $112,500
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April 30, 2003 $112,500
July 31, 2003 $2,900,000
October 31, 2003 $2,900,000
January 31, 2004 $2,900,000
April 30, 2004 $2,900,000
July 31, 2004 $5,175,000
October 31, 2004 $5,175,000
January 31, 2005 $5,175,000
B Term Loan Maturity Date $5,175,000
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, Newco
shall be required to repay that principal amount of Newco A Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h)
through (j), inclusive, a "Newco A Scheduled Repayment," and each such date, a
"Newco A Scheduled Repayment Date"):
Newco A
Scheduled Repayment Date Amount
------------------------ ------
July 31, 1998 L536,612.29
October 31, 1998 L536,612.29
January 31, 1999 L536,612.29
April 30, 1999 L536,612.29
July 31, 1999 L766,588.99
October 31, 1999 L766,588.99
January 31, 2000 L766,588.99
April 30, 2000 L766,588.99
July 31, 2000 L1,149,883.48
October 31, 2000 L1,149,883.48
January 31, 2001 L1,149,883.48
April 30, 2001 L1,149,883.48
July 31, 2001 L2,146,449.16
October 31, 2001 L2,146,449.16
January 31, 2002 L2,146,449.16
April 30, 2002 L2,146,449.16
July 31, 2002 L3,066,355.94
October 31, 2002 L3,066,355.94
January 31, 2003 L3,066,355.94
A Term Loan Maturity Date L3,066,355.94
(iii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, Newco shall be required to repay that principal amount of Newco B Term
Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and
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4.02(h) through (j), inclusive, a "Newco B Scheduled Repayment," and each such
date, a "Newco B Scheduled Repayment Date"):
Newco B
Scheduled Repayment Date Amount
------------------------ ------
July 31, 2003 $925,000
October 31, 2003 $925,000
January 31, 2004 $925,000
April 30, 2004 $925,000
July 31, 2004 $1,575,000
October 31, 2004 $1,575,000
January 31, 2005 $1,575,000
B Term Loan Maturity Date $1,575,000
(iv) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, Adience
shall be required to repay that principal amount of Adience A Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h)
through (j), inclusive, a "Adience A Scheduled Repayment," and each such date, a
"Adience A Scheduled Repayment Date"):
Adience A
Scheduled Repayment Date Amount
------------------------ ------
October 31, 1998 $ 175,000
January 31, 1999 $ 175,000
April 30, 1999 $ 175,000
July 31, 1999 $ 175,000
October 31, 1999 $ 250,000
January 31, 2000 $ 250,000
April 30, 2000 $ 250,000
July 31, 2000 $ 250,000
October 31, 2000 $ 425,000
January 31, 2001 $ 425,000
April 30, 2001 $ 425,000
July 31, 2001 $ 425,000
October 31, 2001 $ 750,000
January 31, 2002 $ 750,000
April 30, 2002 $ 750,000
July 31, 2002 $ 750,000
October 31, 2002 $1,200,000
January 31, 2003 $1,200,000
Adience A Term Loan
Maturity Date $1,200,000
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(v) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, Adience
shall be required to repay that principal amount of Adience B-2 Term Loans, to
the extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h)
through (j), inclusive, an "Adience B-2 Scheduled Repayment," and each such
date, an "Adience B-2 Scheduled Repayment Date"):
Adience B-2
Scheduled Repayment Date Amount
------------------------ -----------
April 30, 1998 $ 96,500
July 31, 1998 $ 96,500
October 31, 1998 $ 96,500
January 31, 1999 $ 96,500
April 30, 1999 $ 96,500
July 31, 1999 $ 96,500
October 31, 1999 $ 96,500
January 31, 2000 $ 96,500
April 30, 2000 $ 96,500
July 31, 2000 $ 96,500
October 31, 2000 $ 96,500
January 31, 2001 $ 96,500
April 30, 2001 $ 96,500
July 31, 2001 $ 96,500
October 31, 2001 $ 96,500
January 31, 2002 $ 96,500
April 30, 2002 $ 96,500
July 31, 2002 $ 96,500
October 31, 2002 $ 96,500
January 31, 2003 $ 96,500
April 30, 2003 $ 96,500
July 31, 2003 $ 96,500
October 31, 2003 $ 96,500
January 31, 2004 $2,000,000
April 30, 2004 $2,000,000
July 31, 2004 $2,000,000
October 31, 2004 $2,000,000
January 31, 2005 $2,780,500
B-2 Term Loan Maturity Date $17,000,000
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(vi) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, Adience shall be required to repay that principal amount of Adience C
Term Loans, to the extent then outstanding, as is set forth opposite such
date (each such repayment, as the same may be reduced as provided in Sections
4.01 and 4.02(h) through (j), inclusive, a "Adience C Scheduled Repayment,"
and each such date, a "Adience C Scheduled Repayment Date"):
Adience C
Scheduled Repayment Date Amount
------------------------ ------
April 30, 1998 $ 187,500
July 31, 1998 $ 187,500
October 31, 1998 $ 187,500
January 31, 1999 $ 187,500
April 30, 1999 $ 187,500
July 31, 1999 $ 187,500
October 31, 1999 $ 187,500
January 31, 2000 $ 187,500
April 30, 2000 $ 187,500
July 31, 2000 $ 187,500
October 31, 2000 $ 187,500
January 31, 2001 $ 187,500
April 30, 2001 $ 187,500
July 31, 2001 $ 187,500
October 31, 2001 $ 187,500
January 31, 2002 $ 187,500
April 30, 2002 $ 187,500
July 31, 2002 $ 187,500
October 31, 2002 $ 187,500
January 31, 2003 $ 187,500
April 30, 2003 $ 187,500
July 31, 2003 $ 187,500
October 31, 2003 $ 187,500
January 31, 2004 $ 2,000,000
April 30, 2004 $ 2,000,000
July 31, 2004 $ 2,000,000
October 31, 2004 $ 2,000,000
January 31, 2005 $ 2,000,000
April 30, 2005 $ 2,687,500
C Term Loan Maturity Date $58,000,000
(c)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Holdings or any of its Subsidiaries
(other than Newco and its Subsidiaries) receives any cash proceeds from any
capital contribution or any sale or issuance of its equity (other than equity
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contributions to any Subsidiary of Holdings made by Holdings or any other
Subsidiary of Holdings), an amount equal to 100% (or 50% (or such greater
percentage, between 50% and 100%, as is needed to cause the Leverage Ratio
requirement hereinafter described to be satisfied) if on the date of receipt
of such cash proceeds (x) no Default or Event of Default then exists and (y)
the Leverage Ratio, after the required application pursuant to this clause
(c), is less than 4.00:1.00) of the cash proceeds of such capital
contribution or sale or issuance (net of underwriting or placement discounts
and commissions and other costs and expenses associated therewith) shall be
applied in accordance with the requirements of Sections 4.02(i) and (j).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Newco or any of its Subsidiaries
receives any cash proceeds from any capital contribution or any sale or
issuance of its equity (other than equity contributions to Newco or any
Subsidiary of Newco made by Holdings or any other Subsidiary of Holdings), an
amount equal to 100% (or 50% (or such greater percentage, between 50% and
100%, as is needed to cause the Leverage Ratio requirement hereinafter
described to be satisfied) if on the date of receipt of such cash proceeds
(x) no Default or Event of Default then exists and (y) the Leverage Ratio,
after the required application pursuant to this clause (c), is less than
4.00:1.00) of the cash proceeds of such capital contribution or sale or
issuance (net of underwriting or placement discounts or commissions and other
costs and expenses associated therewith) shall be applied in accordance with
the requirements of Sections 4.02(h) and (j).
(d)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Holdings or any of its Subsidiaries
(other than Newco and its Subsidiaries) receives any cash proceeds from any
incurrence by Holdings or any of its Subsidiaries (other than Newco and its
Subsidiaries) of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04 as such
Section is in effect on the Restatement Effective Date), an amount equal to
100% of the cash proceeds of the respective incurrence of Indebtedness (net
of underwriting or placement discounts and commissions and other costs
associated therewith) shall be applied in accordance with the requirements of
Sections 4.02(i) and (j).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Newco or any of its Subsidiaries
receives any cash proceeds from any incurrence by Newco or any of its
Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04 as such
Section is in effect on the Restatement Effective Date), an amount equal to
100% of the cash proceeds of the respective incurrence of Indebtedness (net
of underwriting or placement discounts and commissions and other costs
associated therewith) shall be applied in accordance with the requirements of
Sections 4.02(h) and (j).
(e)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Holdings or any of its Subsidiaries
(other than Newco and its Subsidiaries) receives cash proceeds from any sale
of assets (including capital stock and securities held thereby but excluding
(x) sales
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of assets permitted by Sections 9.02(v), (vi), (viii), (ix) (except to the
extent required to be applied pursuant to the proviso to said clause (ix))
and (x), an amount equal to 100% of the Net Sale Proceeds therefrom shall be
applied in accordance with the requirements of Sections 4.02(i) and (j).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Newco or any of its Subsidiaries
receives cash proceeds from any sale or assets (including capital stock and
securities held thereby but excluding (x) sales of assets permitted by
Section 9.02(v), (vi), (viii), (ix) (except to the extent required to be
applied pursuant to the proviso to said clause (ix)) and (x)), an amount
equal to 100% of the Net Sale Proceeds therefrom shall be applied in
accordance with the requirements of Sections 4.02(h) and (j).
(f)(i) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each Excess Cash Payment Date, an amount
equal to 75% (or 50% (or such greater percentage, between 50% and 100%, as is
needed to cause the Leverage Ratio requirement hereinafter described to be
satisfied) if on such Excess Cash Payment Date (x) no Default or Event of
Default then exists and (y) the Leverage Ratio, after the required
application pursuant to this clause (f), is less than 3.25:1.00) of the
Holdings Excess Cash Flow for the relevant Excess Cash Payment Period shall
be applied in accordance with the requirements of Sections 4.02(i) and (j).
(ii) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to 75%
(or 50% (or such greater percentage, between 50% and 100%, as is needed to
cause the Leverage Ratio requirement hereinafter described to be satisfied)
if on such Excess Cash Payment Date (x) no Default or Event of Default then
exists and (y) the Leverage Ratio, after the required application pursuant to
this clause (f), is less than 3.25:1.00) of the Newco Excess Cash Flow for
the relevant Excess Cash Payment Period shall be applied in accordance with
the requirements of Section 4.02(h) and (j).
(g)(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 30 days following
each date after the Restatement Effective Date on which Holdings or any of
its Subsidiaries (other than Newco and its Subsidiaries) receives any
proceeds from any Recovery Event, an amount equal to 100% of the proceeds of
such Recovery Event (net of costs and taxes incurred in connection with such
Recovery Event) shall be applied in accordance with the requirements of
Sections 4.02(i) and (j), provided that (x) so long as no Default or Event of
Default then exists and such proceeds do not exceed $5,000,000, such proceeds
shall not be required to be so applied on such date to the extent that
Adience has delivered a certificate to the Administrative Agent on or prior
to such date stating that such proceeds shall be used to replace or restore
any properties or assets in respect of which such proceeds were paid within
365 days following the date of such Recovery Event (which certificate shall
set forth the estimates of the proceeds to be so expended) and (y) so long as
no Default or Event of Default then exists and to the extent that (a) the
amount of such proceeds exceeds $5,000,000, (b) Adience has delivered to the
Administrative Agent a certificate on or prior to the date the application
would otherwise be required pursuant to this Section 4.02(g)(i) in the form
described in clause (x) above and also certifying the sufficiency of business
interruption insurance as required by succeeding clause (c), and (c) Adience
has delivered to the
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Administrative Agent such evidence as the Administrative Agent may reasonably
request in form and substance reasonably satisfactory to the Administrative
Agent establishing that Adience has sufficient business interruption
insurance and that Adience will be receiving regular payments thereunder in
such amounts and at such times as are necessary to satisfy all obligations
and expenses of Adience (including, without limitation, all debt service
requirements, including pursuant to this Agreement), without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through the completion of the replacement or restoration of respective
properties or assets, then the entire amount and not just the portion in
excess of $5,000,000 shall be deposited as security for the Obligations with
the Administrative Agent for the benefit of the Secured Creditors pursuant to
a cash collateral arrangement reasonably satisfactory to the Administrative
Agent whereby such proceeds shall be disbursed to Adience from time to time
as needed to pay actual costs incurred by it in connection with the
replacement or restoration of the respective properties or assets (pursuant
to such reasonable certification requirements as may be established by the
Administrative Agent), provided further, that at any time while an Event of
Default has occurred and is continuing, the Required Banks may direct the
Administrative Agent (in which case the Administrative Agent shall, and is
hereby authorized by Adience to, follow said directions) to apply any or all
proceeds then on deposit in such collateral account to the repayment of
Obligations hereunder in the same manner as proceeds would be applied
pursuant to the U.S. Security Agreement, and, provided further, that if all
or any portion of such proceeds not required to be applied as a mandatory
repayment and/or commitment reduction pursuant to the second preceding
proviso (whether pursuant to clause (x) or (y) thereof) are either (A) not so
used within 365 days after the date of receipt of proceeds from the
respective Recovery Event or (B) if committed to be used within 365 days
after the date of receipt of proceeds from the respective Recovery Event and
not so used within 540 days after the date of receipt of proceeds from the
respective Recovery Event, then, in either case, such remaining portion not
used or committed to be used in the case of the preceding clause (A) and not
used in the case of preceding clause (B), shall be applied on the date which
is 365 days following the date of receipt of proceeds from the respective
Recovery Event in the case of clause (A) above, or the date which is 540 days
after the date of receipt of proceeds from the respective Recovery Event in
the case of clause (B) above, in accordance with the requirements of Section
4.02(i) and (j).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 30 days following
each date after the Restatement Effective Date on which Newco or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal
to 100% of the proceeds of such Recovery Event (net of costs and taxes
incurred in connection with such Recovery Event) shall be applied in
accordance with the requirements of Sections 4.02(h) and (j), provided that
(x) so long as no Default or Event of Default then exists and such proceeds
do not exceed $5,000,000, such proceeds shall not be required to be so
applied on such date to the extent that Newco has delivered a certificate to
the Administrative Agent on or prior to such date stating that such proceeds
shall be used to replace or restore any properties or assets in respect of
which such proceeds were paid within 365 days following the date of such
Recovery Event (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) so long as no Default or Event of Default
then exists and to the extent that (a) the amount of such proceeds exceeds
$5,000,000, (b) Newco has delivered to the Administra-
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tive Agent a certificate on or prior to the date the application would
otherwise be required pursuant to this Section 4.02(g)(ii) in the form
described in clause (x) above and also certifying the sufficiency of business
interruption insurance as required by succeeding clause (c), and (c) Newco
has delivered to the Administrative Agent such evidence as the Administrative
Agent may reasonably request in form and substance reasonably satisfactory to
the Administrative Agent establishing that Newco has sufficient business
interruption insurance and that Newco will be receiving regular payments
thereunder in such amounts and at such times as are necessary to satisfy all
obligations and expenses of Newco (including, without limitation, all debt
service requirements, including pursuant to this Agreement), without any
delay or extension thereof, for the period from the date of the respective
casualty, condemnation or other event giving rise to the Recovery Event and
continuing through the completion of the replacement or restoration of
respective properties or assets, then the entire amount and not just the
portion in excess of $5,000,000 shall be deposited as security for the
Obligations with the Administrative Agent for the benefit of the Secured
Creditors pursuant to a cash collateral arrangement reasonably satisfactory
to the Administrative Agent whereby such proceeds shall be disbursed to Newco
from time to time as needed to pay actual costs incurred by it in connection
with the replacement or restoration of the respective properties or assets
(pursuant to such reasonable certification requirements as may be established
by the Administrative Agent), provided further, that at any time while an
Event of Default has occurred and is continuing, the Required Banks may
direct the Administrative Agent (in which case the Administrative Agent
shall, and is hereby authorized by Newco to, follow said directions) to apply
any or all proceeds then on deposit in such collateral account to the
repayment of Obligations hereunder in the same manner as proceeds would be
applied pursuant to the U.K. Security Agreement, and, provided further, that
if all or any portion of such proceeds not required to be applied as a
mandatory repayment and/or commitment reduction pursuant to the second
preceding proviso (whether pursuant to clause (x) or (y) thereof) are either
(A) not so used within 365 days after the date of receipt of proceeds from
the respective Recovery Event or (B) if committed to be used within 365 days
after the date of receipt of proceeds from the respective Recovery Event and
not so used within 540 days after the date of receipt of proceeds from the
respective Recovery Event, then, in either case, such remaining portion not
used or committed to be used in the case of the preceding clause (A) and not
used in the case of preceding clause (B), shall be applied on the date which
is 365 days following the date of receipt of proceeds from the respective
Recovery Event in the case of clause (A) above, or the date which is 540 days
after the date of receipt of proceeds from the respective Recovery Event in
the case of clause (B) above, in accordance with the requirements of Section
4.02(h) and (j).
(h) Each amount required to be applied pursuant to this
clause (h) as a result of the requirements of Sections 4.02(c)(ii), (d)(ii),
(e)(ii), (f)(ii) and (g)(ii), and the last sentence of Section 4.02(i), shall
be applied (after the conversion by Newco of any amounts received in a
currency other than Pounds Sterling into Pounds Sterling) pro rata to each
Tranche of Newco Term Loans based upon the then remaining principal amounts
of the respective Tranches (with each Tranche of Newco Term Loans to be
allocated that percentage of the amount to be so applied as is equal to a
fraction (expressed as a percentage) the numerator of which is equal to the
outstanding principal amount of such Tranche of Newco Term Loans and the
denominator of which is equal to the then outstanding principal amount of all
Newco Term Loans). Any amount required to be applied to either Tranche of
Newco Term Loans pursuant to the requirements of
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the immediately preceding sentence shall be applied to repay the outstanding
principal amount of Newco Term Loans of the respective Tranche. The amount
of each principal repayment of Newco Term Loans made as required by this
clause (h) shall be applied pro rata to reduce the then remaining Scheduled
Repayments of the respective Tranche based upon the then remaining amount of
each Scheduled Repayment of the respective Tranche, after giving effect to
all prior reductions thereto. To the extent the amount at any time required
to be applied pursuant to this Section 4.02(h) exceeds the aggregate
principal amount of Newco Term Loans then outstanding, then (x) such excess
shall instead be required to be repatriated to Adience and (y) the amount
(net of any applicable withholding taxes or other amounts required under
applicable law to be withheld in respect of the amount repatriated to
Adience) repatriated to Adience as described in this sentence shall be
applied as otherwise required by Sections 4.02(i) and (j).
(i) Each amount required to be applied to Adience Term Loans
pursuant to this clause (i) as a result of the requirements of Sections
4.02(c)(i), (d)(i), (e)(i), (f)(i) and (g)(i), and the last sentence of
Section 4.02(h), shall be applied (after the conversion by Adience of any
amounts received in a currency other than Dollars into Dollars) pro rata to
each Tranche of Adience Term Loans based upon the then remaining principal
amounts of the respective Tranches (with each Tranche of Adience Term Loans
to be allocated that percentage of the amount to be so applied as is equal to
a fraction (expressed as a percentage) the numerator of which is equal to the
outstanding principal amount of such Tranche of Adience Term Loans and the
denominator of which is equal to the then outstanding principal amount of all
Adience Term Loans). Any amount required to be applied to any Tranche of
Adience Term Loans pursuant to the requirements of the immediately preceding
sentence shall be applied to repay the outstanding principal amount of
Adience Term Loans of the respective Tranche. The amount of each principal
repayment of Adience Term Loans made as required by this clause (i) shall be
applied pro rata to reduce the then remaining Scheduled Repayments of the
respective Tranche based upon the then remaining amount of each Scheduled
Repayment of the respective Tranche, after giving effect to all prior
reductions thereto. To the extent the amount at any time required to be
applied pursuant to this Section 4.02(i) exceeds the aggregate principal
amount of Adience Term Loans then outstanding, then (x) such excess (up to
the aggregate principal amount of Newco Term Loans then outstanding) shall
instead be required to be invested in Newco and (y) the amount so invested in
Newco as described in this sentence shall be applied as otherwise required by
Sections 4.02(h) and (j).
(j) With respect to each repayment of Loans required by this
Section 4.02, the respective Borrower may designate the Types of Loans of the
respective Tranche which are to be repaid and, in the case of Euro Rate
Loans, the specific Borrowing or Borrowings of the respective Tranche
pursuant to which made, provided that: (i) in the case of repayments of
Dollar Loans, repayments of Eurodollar Loans of the respective Tranche
pursuant to this Section 4.02 may only be made on the last day of an Interest
Period applicable thereto unless all Eurodollar Loans of the respective
Tranche with Interest Periods ending on such date of required repayment and
all Base Rate Loans of the respective Tranche have been paid in full; (ii) if
any repayment of Euro Rate Loans made pursuant to a single Borrowing shall
reduce the outstanding Loans made pursuant to such Borrowing to an amount
less than the respective Minimum Borrowing Amount for the respective Tranche
and Type of Loan, such Borrowing (x) in the case of Dollar Loans, shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans and (y) in the case of Sterling Loans, shall be repaid in
full at the end of the then current
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Interest Period (with the amount of any such repayment to be applied pro rata
to reduce the then remaining Scheduled Repayments of the respective Tranche
based upon the then remaining amount of each Scheduled Repayment of the
respective Tranche after giving effect to all prior reductions thereto); and
(iii) each repayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans. In the absence of a designation by the
respective Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in
its sole discretion.
(k) Notwithstanding anything to the contrary contained in
this Agreement or in any other Credit Document, (x) all then outstanding
Loans (other than Swingline Loans and Sterling Swingline Loans) of any
Tranche shall be repaid in full on the respective Maturity Date for such
Tranche of Loans and (y) all then outstanding Swingline Loans and Sterling
Swingline Loans shall be repaid in full on the Swingline Expiry Date.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 12:00 Noon (local time in the city in
which the Payment Office for the respective such payments is located) on the
date when due and shall be made in (x) Dollars in immediately available funds
at the appropriate Payment Office of the Administrative Agent in respect of
any obligation of the Borrowers under this Agreement except as otherwise
provided in the immediately following clause (y) and (y) Pounds Sterling in
immediately available funds at the appropriate Payment Office of the
Administrative Agent, if such payment is made in respect of (i) principal of
or interest on Sterling Loans, or (ii) any increased costs, indemnities or
other amounts owing with respect to Sterling Loans (or Commitments relating
thereto), in the case of this clause (ii) to the extent the respective Bank
which is charging same denominates the amounts owing in Pounds Sterling. The
Administrative Agent will thereafter cause to be distributed on the same day
(if payment was actually received by the Administrative Agent prior to 12:00
noon (local time in the city in which such payments are to be made)) like
funds relating to the payment of principal, interest or Fees ratably to the
Banks entitled thereto. Any payments under this Agreement which are made
later than 12:00 Noon (local time in the city in which such payments are to
be made) shall be deemed to have been made on the next succeeding Business
Day. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate
during such extension.
4.04 Net Payments. (a) All payments made by each Borrower
hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Sections 4.04(b) and (c), all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments
or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, any tax imposed on or measured by the net
income or profits or franchise taxes based on net income of a Bank pursuant
to the laws of the jurisdiction in which it is organized or the jurisdiction
in which the principal office or applicable lending office of such Bank is
located or any subdivision thereof or therein) and all interest, penal-
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ties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed,
the respective Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for
herein or in such Note. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the respective Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed
on or measured by the net income or profits of such Bank pursuant to the laws
of the jurisdiction in which the principal office or applicable lending
office of such Bank is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such
Bank in respect of such amounts so paid to or on behalf of such Bank pursuant
to the preceding sentence and in respect of any amounts paid to or on behalf
of such Bank pursuant to this sentence. If any Borrower pays any additional
amount under this Section 4.04 to a Bank and such Bank determines in its sole
discretion that it has actually received or realized in connection therewith
any refund or any reduction of, or credit against, its Tax liabilities in or
with respect to the taxable year in which the additional amount is paid, such
Bank shall pay to such Borrower an amount that the Bank shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was
obtained by the Bank in such year as a consequence of such refund, reduction
or credit. The respective Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by
the respective Borrower. Each Borrower agrees to indemnify and hold harmless
each Bank, and reimburse such Bank upon its written request, for the amount
of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
Adience and the Administrative Agent on or prior to the Original Effective
Date (or the Restatement Effective Date in the case of such Banks that first
became party hereto on the Restatement Effective Date), or in the case of a
Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 13.04 (unless the respective Bank was already a
Bank hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Bank, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Bank's entitlement as of such date to a
complete exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note, or (ii) if the
Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant
to clause (i) above, (x) a certificate substantially in the form of Exhibit D
(any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition,
each Bank agrees that from time to time after the Original Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver
to Adience
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and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as
may be required in order to confirm or establish the entitlement of such Bank
to a continued exemption from or reduction in United States withholding tax
with respect to payments under this Agreement and any Note, or it shall
immediately notify Adience and the Administrative Agent of its inability to
deliver any such Form or Certificate in which case such Bank shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 13.04(b) and the immediately succeeding
sentence, (x) Adience shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the
account of any Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes to the extent that such Bank has not provided to Adience U.S.
Internal Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) Adience shall not be obligated pursuant to
Section 4.04(a) hereof to gross-up payments to be made to a Bank in respect
of income or similar taxes imposed by the United States if (I) such Bank has
not provided to Adience the Internal Revenue Service Forms required to be
provided to Adience pursuant to this Section 4.04(b) or (II) in the case of a
payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and
except as set forth in Section 13.04(b), Adience agrees to pay additional
amounts and to indemnify each Bank in the manner set forth in Section 4.04(a)
(without regard to the identity of the jurisdiction requiring the deduction
or withholding) in respect of any amounts deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes
that are effective after the Original Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) Each Bank that is not a resident of the United Kingdom
for United Kingdom tax purposes agrees to (i) deliver to Newco and the
Administrative Agent such declaration of non-residence or other similar claim
as shall be requested by Newco (giving the Bank sufficient time to satisfy
such requirement), as is required by statute, treaty or regulation of the
United Kingdom existing on the Original Effective Date (or the Restatement
Effective Date in the case of such Banks that first became party to this
Agreement on the Restatement Effective Date) or which are not substantially
more onerous than those existing on the Original Effective Date (or the
Restatement Effective Date in the case of such Banks that first became party
to this Agreement on the Restatement Effective Date) and which do not impose
an unreasonable burden (in time, resources or otherwise) on the Bank, or (ii)
within 45 days after the Original Effective Date (or the Restatement
Effective Date in the case of such Banks that first became party to this
Agreement on the Restatement Effective Date), make the requisite filing with
the U.K. Inspector of Foreign Dividends (and/or the taxing authority of the
jurisdiction in which such Bank's principal office is located) as required to
establish its entitlement to an exemption from U.K. withholding under the
double tax treaty currently in force between the United States (or the
jurisdiction in which such Bank's principal office is located) and the United
Kingdom.
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Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x)
Newco shall be entitled, to the extent it is required to do so by law, to
deduct and withhold income or similar taxes imposed by the United Kingdom on
interest, Fees or other amounts payable hereunder for the account of any Bank
which is not a resident of the United Kingdom for U.K. tax purposes to the
extent that such Bank has not provided forms, declarations or other
certification required to establish a complete exemption from such deduction
or withholding and (y) Newco shall not be obligated pursuant to Section
4.04(a) hereof to gross-up payments to be made to a Bank in respect of income
or similar taxes imposed by the United Kingdom if such Bank has not provided
to Newco the forms and declaration required to be provided by such Bank
pursuant to the preceding sentence. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04, and
except as set forth in Section 13.04(b), Newco agrees to pay any additional
amounts and to indemnify each Bank in the manner set forth in Section 4.04(a)
(without regard to the identity of the jurisdiction requiring the deduction
or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes
after the Restatement Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of such Taxes. For the
avoidance of doubt, nothing herein shall require any Bank to disclose any
information regarding its tax affairs or computations to Newco or any of its
Affiliates and no Bank shall be obligated to disclose any of its tax returns
to Newco or any of its Affiliates or any agent of the foregoing.
SECTION 5. Conditions Precedent to Restatement Effective
Date. The occurrence of the Restatement Effective Date, and the obligation
of each Bank to continue and/or make Loans, and the obligation of any Issuing
Bank to issue Letters of Credit, on the Restatement Effective Date, is
subject to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Restatement Effective Date (i) this Agreement shall have been executed and
delivered as provided in Section 13.10 and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Banks
the appropriate Adience A Term Note, Adience B-2 Term Note, Adience C Term
Note, Dollar Revolving Note and/or Sterling Revolving Note executed by the
appropriate Borrower, in each case in the amount, maturity and as otherwise
provided herein.
5.02 Opinions of Counsel. On the Restatement Effective Date,
the Administrative Agent shall have received from (i) Proskauer Rose LLP,
special U.S. counsel to the Credit Parties, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Banks and dated
the Restatement Effective Date in the form set forth as Exhibit E-1 and (ii)
local counsel (satisfactory to the Administrative Agent), legal opinions each
of which (x) shall be addressed to the Administrative Agent, the Collateral
Agent and each of the Banks, (y) shall be in form and substance reasonably
satisfactory to the Administrative Agent and (z) shall cover the perfection
of the security interests granted pursuant to the Security Documents (as
amended by the Mortgage Amendments in the case of the Original Mortgages) and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request.
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5.03 Corporate Documents; Proceedings; etc. (a) On the
Restatement Effective Date, the Administrative Agent shall have received a
certificate, dated the Restatement Effective Date, signed by an Authorized
Officer of Holdings, each Borrower and each Subsidiary of Adience which is to
become a Credit Party on the Restatement Effective Date (excluding any such
Subsidiary which was a Credit Party in the Original Effective Date), and
attested to by the Secretary or any Assistant Secretary of such Person, in
the form of Exhibit F with appropriate insertions, together with copies of
the certificate of incorporation (or equivalent organizational document) and
by-laws of such Person (or, in the case of Holdings and each Borrower, the
text of any changes to such certificate of incorporation or by-laws) and the
resolutions of such Person referred to in such certificate, and the foregoing
shall be reasonably acceptable to the Administrative Agent.
(b) On the Restatement Effective Date, the Administrative
Agent shall have received certificates of all Credit Parties (other than the
Credit Parties delivering certificates pursuant to preceding clause (a))
signed by an Authorized Officer of such Credit Party, and attested to by the
Secretary or any Assistant Secretary of such Credit Party, (x) certifying
that there were no changes, or providing the text of any changes, to the
certificate of incorporation and by-laws of such Credit Parties as delivered
pursuant to Section 5.03 of the Original Credit Agreement, (y) to the effect
that each such Credit Party is in good standing in its respective state of
incorporation and in those states where each such Credit Party conducts
business and (z) providing the resolutions adopted by each such Credit Party
with respect to the Acquisition and the amendment and restatement of this
Agreement, and the obligations of such Credit Party with respect to the
increased extensions of credit pursuant hereto), and the foregoing shall be
reasonably acceptable to the Administrative Agent in its reasonable
discretion.
(c) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Documents shall be reasonably satisfactory in form
and substance to the Administrative Agent and the Required Banks, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams
or facsimiles, if any, which the Administrative Agent reasonably may have
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
5.04 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements; Existing
Indebtedness Agreements. (a) On the Restatement Effective Date, there shall
have been made available to the Administrative Agent true and correct copies
of the following documents (in each case except to the extent already
delivered to or made available for review by the Administrative Agent on or
prior to the Original Effective Date), in each case as same will be in effect
on the Restatement Effective Date after consummation of the Acquisition:
(i) all Plans that, as of the Restatement Effective Date, are
maintained, sponsored or contributed to by Holdings, any Subsidiary
of Holdings, or any ERISA Affiliate (and for each such Plan that is
required to file an annual report on Internal Revenue Service Form
5500-series, a copy of the most recent such report (including, to
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the extent required, the related financial and actuarial
statements and opinions and other supporting statements,
certifications, schedules and information), and for each such
Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial
valuation therefor) and any other "employee benefit plans," as
defined in Section 3(3) of ERISA, and any other material
agreements, plans or arrangements, with or for the benefit of
current or former employees of Holdings or any of its
Subsidiaries or any ERISA Affiliate (provided that the
foregoing shall apply in the case of any multiemployer plan,
as defined in Section 4001(a)(3) of ERISA, only to the extent
that any document described therein is in the possession of
Holdings or any Subsidiary of Holdings or any ERISA Affiliate
or reasonably available thereto from the sponsor or trustee of
any such Plan) (collectively, together with any agreements,
plans or arrangements referred to in Section 5.04(i) of the
Original Credit Agreement, and any amendments thereto referred
to in Section 5.04(b), the "Employee Benefit Plans");
(ii) all agreements entered into by Holdings or any of its
Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders relating to any
such entity with respect to its capital stock (collectively, together
with any agreements referred to in Section 5.04(ii) of the Original
Credit Agreement, and any amendments thereto referred to in Section
5.04(b), the "Shareholders' Agreements");
(iii) all agreements with members of, or with respect to,
the senior management and management of Holdings or any of its
Subsidiaries (collectively, together with any agreements referred to
in Section 5.04(iii) of the Original Credit Agreement, and any
amendments thereto referred to in Section 5.04(b), the "Management
Agreements");
(iv) all collective bargaining agreements applying or relating
to any employee of Holdings or any of its Subsidiaries (collectively,
together with any agreements referred to in Section 5.04(iv) of the
Original Credit Agreement, and any amendments thereto referred to in
Section 5.04(b), the "Collective Bargaining Agreements");
(v) all agreements evidencing or relating to Indebtedness of
Holdings or any of its Subsidiaries which is to remain outstanding
after giving effect to the incurrence of Loans on the Restatement
Effective Date (collectively, together with any agreements referred
to in Section 5.04(v) of the Original Credit Agreement, and any
amendments thereto referred to in Section 5.04(b), the "Existing
Indebtedness Agreements"); and
(vi) the Alpine/Holdings Tax Sharing Agreement;
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Collective Bargaining Agreements, Existing Indebtedness
Agreements and the Alpine/Holdings Tax Sharing Agreement shall, except to the
extent such agreements are of no force and effect on the Restatement
Effective Date, be in form and substance satisfactory to the Administrative
Agent and the Required Banks.
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(b) On or prior to the Restatement Effective Date, the
Administrative Agent shall have received (i) a certificate of Holdings, dated
the Restatement Effective date, signed by an Authorized Officer of Holdings,
and attested to by the Secretary or Assistant Secretary of Holdings stating
that all agreements and plans referred to in Section 5.04 of the Original
Credit Agreement, previously delivered (or made available to the
Administrative Agent by each Credit Party, remain in full force and effect
(or specifying which of such agreements and plans do not remain in full force
and effect) and (ii) any amendments thereto or additional such agreements.
5.05 Floating Rate Loans. On or prior to the Restatement
Effective Date, (i) the Floating Rate Loan Documents shall have been amended
to permit the consummation of the Transaction and to incorporate any
additional changes thereto that are deemed by the Administrative Agent to be
reasonably necessary in light of the foregoing and (ii) the Administrative
Agent shall have received true and correct copies of the Floating Rate Loan
Documents as so amended and such Floating Rate Loan Documents are in form and
substance satisfactory to the Administrative Agent and the Required Banks.
5.06 Consummation of Acquisition; Etc. (a) On the
Restatement Effective Date, (i) the Acquisition shall have been consummated
in accordance with the Acquisition Documents and all applicable laws (except
insofar as moneys to be advanced under the terms of this Agreement as are
required for such purpose), (ii) each of the conditions precedent set forth
in the Acquisition Documents shall have been satisfied and not waived (unless
waived with the consent of the Administrative Agent and the Required Banks),
and (iii) the Administrative Agent shall have received true and correct
copies of the Acquisition Documents, all of which shall be in full force and
effect and required to be in form and substance (including as to all of the
terms and conditions thereof) satisfactory to the Administrative Agent and
the Required Banks.
(b) On the Restatement Effective Date, the capital structure
of Holdings and its Subsidiaries shall be as set forth in the Organization
Chart attached as Schedule IX, which shall be required to be in form and
substance satisfactory to the Administrative Agent and the Required Banks.
(c) On the Restatement Effective Date, neither Adience nor
any of its Subsidiaries shall owe any amounts, by way of intercompany loans
or otherwise, to Alpine or any of its Subsidiaries (other than Adience and
its Subsidiaries); provided that on the Restatement Effective Date Adience
and its Subsidiaries may owe up to an aggregate principal amount of
$1,000,000 of intercompany loans to Alpine.
5.07 Indebtedness to be Refinanced. (a) On or prior to the
Restatement Effective Date or concurrently with the Credit Events then
occurring, the total commitments under the Indebtedness to be Refinanced
shall have been terminated, and all loans and notes issued thereunder shall
have been repaid in full, together with interest thereon, all letters of
credit issued thereunder shall have been terminated or collateralized by new
back-to-back letters of credit in form and substance, and issued by an
issuer, satisfactory to the respective letter of credit issuers or otherwise
supported in a manner satisfactory to the respective letter of credit
issuers, and all other amounts owing pursuant to the Indebtedness to be
Refinanced shall have been repaid in full and all documents in respect of the
Indebtedness to be Refinanced shall have been terminated and
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be of no further force or effect except for continuing indemnification
obligations described therein. The Administrative Agent shall have received
evidence in form, scope and substance reasonably satisfactory to it that the
matters set forth in this Section 5.07(a) have been satisfied on such date.
(b) On or prior to the Restatement Effective Date or
concurrently with the Credit Events then occurring, the creditors in respect
of the Indebtedness to be Refinanced shall have terminated and released all
security interests and Liens on the assets owned or to be owned by Adience or
any of its Subsidiaries granted in connection with the Indebtedness to be
Refinanced. The Administrative Agent shall have received such releases of
security interests in and Liens on the assets owned or to be owned by Adience
and its Subsidiaries (including APHI and its Subsidiaries) as may have been
reasonably requested by the Administrative Agent, which releases shall be in
form and substance reasonably satisfactory to the Administrative Agent.
Without limiting the foregoing, there shall have been delivered (i) proper
termination statements (Form UCC-3 or the appropriate equivalent) for filing
under the UCC of each jurisdiction where a financing statement (Form UCC-1 or
the appropriate equivalent) was filed with respect to Adience or any of its
Subsidiaries (including APHI and its Subsidiaries), or their respective
predecessors in interest, in connection with the security interests created
with respect to the Indebtedness to be Refinanced and the documentation
related thereto, (ii) terminations or assignments of any security interest
in, or Lien on, any patents, trademarks, copyrights, or similar interests of
Adience or any of its Subsidiaries (including APHI and its Subsidiaries), on
which filings have been made and (iii) terminations of all mortgages,
leasehold mortgages and deeds of trust created with respect to property of
Adience or any of its Subsidiaries (including APHI and its Subsidiaries), or
their respective predecessors in interest, in each case, to secure the
obligations under the Indebtedness to be Refinanced, all of which shall be in
form and substance reasonably satisfactory to the Administrative Agent.
5.08 Adverse Change, etc. (a) On or prior to the
Restatement Effective Date, nothing shall have occurred (and neither the
Administrative Agent nor the Banks shall have become aware of any facts,
conditions or other information not previously known) which the
Administrative Agent or the Required Banks shall determine could reasonably
be expected to have a material adverse effect on the rights or remedies of
the Administrative Agent or the Banks, or on the ability of any Credit Party
to perform its obligations to the Administrative Agent and the Banks or which
could reasonably be expected to have a Material Adverse Effect.
(b) All necessary governmental (domestic and foreign) and
third party approvals and/or consents in connection with any Credit Event and
the Transaction, the other transactions contemplated by the Documents and
otherwise referred to herein or therein (excluding governmental approvals
and/or consents not required to be obtained on or prior to the Restatement
Effective Date) shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents, or imposes materially
adverse conditions upon, the consummation of any Credit Event and the
Transaction or the other transactions contemplated by the Documents or
otherwise referred to herein or therein. Additionally, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a
hearing seeking injunctive relief or other restraint
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pending or notified prohibiting or imposing materially adverse conditions
upon any Credit Event or the Transaction or the other transactions
contemplated by the Documents.
5.09 Litigation. On the Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened with respect to this Agreement, any other Document or any
documentation executed in connection herewith or therewith or the
transactions contemplated hereby or thereby, or which the Administrative
Agent or the Required Banks shall determine could reasonably be expected to
have a material adverse effect on the Transaction or the Acquired Business or
a Material Adverse Effect.
5.10 Acknowledgments; Assumptions. (a) Each Subsidiary
Guarantor shall have executed and delivered a counterpart of this Agreement,
pursuant to which it makes the acknowledgments and agreements appearing
immediately preceding the signature pages of such Subsidiary Guarantors
appearing at the end of this Agreement.
(b) Each Subsidiary Guarantor which was not a Subsidiary
Guarantor immediately before giving effect to the Restatement Effective Date
shall have duly authorized, executed and delivered counterparts of an
assumption agreement in the form of Exhibit G (the "Subsidiary Assumption
Agreement").
5.11 U.S. Pledge Agreement. On the Restatement Effective
Date, Adience and each U.S. Subsidiary Guarantor shall furnish to the
Administrative Agent updates, as necessary, to the schedules to the U.S.
Pledge Agreement (as prepared as of the Restatement Effective Date and after
giving effect thereto) and Adience and each U.S. Subsidiary Guarantor shall
deliver to the Collateral Agent, as Pledgee thereunder, all of the Pledged
Securities, if any, referred to therein that are owned by Adience and each
U.S. Subsidiary Guarantor (to the extent not already delivered pursuant to
the U.S. Pledge Agreement), (x) endorsed in blank in the case of promissory
notes constituting Pledged Securities and (y) together with executed and
undated stock powers in the case of capital stock constituting Pledged
Securities.
5.12 U.S. Security Agreement. On the Restatement Effective
Date, Adience and each U.S. Subsidiary Guarantor shall cause to be delivered
to the Administrative Agent updated schedules to the U.S. Security Agreement,
prepared as of the Restatement Effective Date (and after giving effect
thereto), which schedules shall be true and correct in all material respects.
In addition, each U.S. Subsidiary Guarantor which becomes party to the
Subsidiary Assumption Agreement shall deliver the following:
(i) proper Financing Statements (Form UCC-1 or the equivalent)
fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the U.S. Security
Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name such U.S. Subsidiary Guarantor as debtor and
that are filed in the jurisdictions referred to in clause (i) above,
together with copies of such other financing statements that name
such U.S. Subsidiary as
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debtor (none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or in respect of which the Collateral Agent
shall have received termination statements (Form UCC-3) or such other
termination statements as shall be required by local law fully
executed for filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the U.S. Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created by
the U.S. Security Agreement; and
(iv) evidence that all other actions necessary (including the
amending of any existing financing statements) or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect
(or maintain the perfection of) the security interests purported to
be created by the U.S. Security Agreement have been taken.
5.13 U.K. Security Documents. (a) On the Restatement
Effective Date, each of the U.K. Subsidiaries, which is a party to the U.K.
Security Agreement shall deliver to the Administrative Agent a notice setting
forth details of any assets acquired by it subsequent to the date of the U.K.
Security Agreement which are subject to any of the charges created thereunder
or of any assets which, for any reason, were not subject to such charges on
the date of the U.K. Security Agreement but which have become subject to any
of such charges since that date.
(b) On the Restatement Effective Date, (x) Adience shall
deliver to the Administrative Agent, to the extent that Adience has not done
so prior to the Restatement Effective Date, share certificates in respect of
any Derivative Assets (as defined in the Adience U.K. Pledge Agreement)
together with duly executed stock transfer forms with the name of the
transferee, date and consideration left blank in respect of the shares
represented by such share certificates and (y) Newco shall deliver to the
Administrative Agent, to the extent that Newco has not done so prior to the
Restatement Effective Date, share certificates or other documents of title to
or representing any Derivative Assets (as defined in the Newco U.K. Pledge
Agreement) together with duly executed stock transfer forms, transfers or
assignments with the name of the transferee, date and consideration left
blank in respect of the Derivative Assets represented by such share
certificates or other documents of title.
5.14 Mortgage; Title Insurance. On the Restatement Effective
Date, the Collateral Agent shall have received:
(a) with respect to the New Mortgaged Properties:
(i) fully executed counterparts of mortgages, deeds of
trust or deeds to secure debt, in each case substantially in
the form of the Original Mortgages delivered to the
Administrative Agent on the Original Effective Date or in such
other form and substance as is reasonably satisfactory to the
Administrative Agent (as modified, supplemented or amended from
time to time, each a "New Mortgage" and, collectively, the "New
Mortgages"), which New Mortgages shall cover such of the Real
Property owned or leased by Adience and its Domestic Subsidiaries
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(after giving affect to the occurrence of the Restatement
Effective Date) as shall be designated on Schedule III (and is
not subject to any Original Mortgage) (each a "New Mortgaged
Property" and, collectively, the "New Mortgaged Properties"),
together with evidence that counterparts of the New Mortgages
have been delivered to the title insurance company insuring the
Lien of the New Mortgages for recording in all places to the
extent necessary or, in the reasonable opinion of the Collateral
Agent, desirable to effectively create a valid and enforceable
first priority mortgage lien on each New Mortgaged Property in
favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the
Secured Creditors; and
(ii) a mortgagee title insurance policy on each New Mortgaged
Property issued by Lawyers Title Insurance Company or such other
title insurer as is reasonably satisfactory to the Collateral
Agent (the "New Mortgage Policies") in amounts satisfactory to
the Administrative Agent assuring the Collateral Agent that the
New Mortgages on such New Mortgaged Properties are valid and
enforceable first priority mortgage liens on the respective New
Mortgaged Properties, free and clear of all defects and
encumbrances except Permitted Encumbrances and such New Mortgage
Policies shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent and shall include,
as appropriate, an endorsement for future advances under this
Agreement and the Notes and for any other matter that the
Administrative Agent in its reasonable discretion may reasonably
request, shall not include an exception for mechanics' liens, and
shall provide for affirmative insurance as the Administrative
Agent in its discretion may reasonably request; and
(b) with respect to the Original Mortgaged Properties:
(i) fully executed counterparts of
amendments (the "Mortgage Amendments"), in form and substance
satisfactory to the agents, to each of the Original Mortgages,
together with evidence that counterparts of each of the
Mortgage Amendments have been delivered to the title
insurance company insuring the Lien of the Original Mortgages
for recording in all places to the extent necessary or, in
the reasonable opinion of the Collateral Agent, desirable to
effectively maintain a valid and enforceable first priority
(subject to Permitted Liens) mortgage lien on each Original
Mortgaged Property in favor of the Collateral Agent (or such
other trustee as may be required or desired under local law)
for the benefit of the Secured Creditors; and
(ii) endorsements of the authorized issuing agent for
title insurers reasonably satisfactory to the Collateral Agent
to each Original Mortgage Policy assuring the Collateral Agent
that each Original Mortgage is a valid and enforceable first
priority mortgage lien on the respective Original Mortgaged
Properties, free and clear of all defects and encumbrances
except Permitted Liens.
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5.15 Projections; Pro Forma Balance Sheet. On or prior to
the Restatement Effective Date, there shall have been delivered to the
Administrative Agent:
(i) projected financial statements for Holdings and its
Subsidiaries for the period from the Restatement Effective
Date to and including at least December 31, 2005 (the
"Projections"), which Projections (x) shall reflect the
forecasted financial condition and income and expenses of
Holdings and its Subsidiaries after giving effect to the
Transaction and the related financing thereof and the other
transactions contemplated hereby and thereby and (y) shall be
reasonably satisfactory in form and substance to the
Administrative Agent and the Required Banks; and
(ii) an unaudited pro forma consolidated balance sheet of
Holdings and its Subsidiaries, and of each Borrower, after
giving effect to the Transaction and the incurrence of all
Indebtedness contemplated herein and prepared in accordance
with generally accepted accounting principles, which pro forma
consolidated balance sheets shall be required to be in form
and substance reasonably satisfactory to the Administrative
Agent and the Required Banks.
5.16 Solvency Certificate; Environmental Analyses; Insurance
Analyses. On the Restatement Effective Date, there shall have been delivered
to the Administrative Agent:
(i) a solvency certificate in the form of Exhibit K from
the Treasurer of Holdings and dated the Restatement Effective
Date;
(ii) Phase I environmental assessment reports with
respect to the business and properties being acquired pursuant
to the Acquisition and listed on Schedule XV, prepared by
environmental consultants reasonably satisfactory to the
Administrative Agent, the results of which do not disclose any
environmental liabilities or potential environmental
liabilities reasonably likely to result in a Material Adverse
Effect; and
(iii) analyses and evidence of insurance complying
with the requirements of Section 8.03 for the business and
properties of Holdings and its Subsidiaries (including,
without limitation, the Acquired Business), in scope, form and
substance satisfactory to the Administrative Agent and the
Required Banks and naming the Collateral Agent as an
additional insured and as loss payee, and stating that such
insurance shall not be cancelled or revised without at least
30 days prior written notice by the insurer to the Collateral
Agent.
5.17 Fees, etc. On the Restatement Effective Date, Adience
shall have paid to the Administrative Agent and each Bank all costs, fees and
expenses (including, without limitation, reasonable legal fees and expenses)
payable to the Administrative Agent and such Bank to the extent then due.
5.18 Original Credit Agreement. On the Restatement
Effective Date, (i) each Original Bank shall have received payment in full of
all amounts (including any accrued and unpaid interest and fees) then due and
owing to it under the Original Credit Agreement in respect
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of those Revolving Loans being repaid as contemplated by the last sentence of
Section 1.01(g), (ii) all accrued interest on all outstanding extensions of
credit pursuant to the Original Credit Agreement, and all regularly accruing
fees pursuant to the Original Credit Agreement, shall be repaid in full on,
and through the Restatement Effective Date (whether or not same would
otherwise be then due and payable pursuant to the Original Credit Agreement)
and (iii) the Administrative Agent shall have received evidence in form,
scope and substance satisfactory to it that the matters set forth in this
Section 5.18 have been satisfied on such date.
5.19. Officer's Certificate. On the Restatement Effective
Date, the Administrative Agent shall have received a certificate, dated the
Restatement Effective Date and signed on behalf of Holdings by the president
or vice president of Holdings, stating that all of the conditions in Sections
5.05, 5.06, 5.07, 5.18 and 6.01 have been satisfied on or prior to such date.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Bank to make Loans (including Loans made on the
Restatement Effective Date, but excluding Mandatory Borrowings to be made
thereafter, which shall be made as provided in Section 1.01(f)), and the
obligation of any Issuing Bank to issue any Letter of Credit, is subject, at
the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified
date).
6.02 Notice of Borrowing; Letter of Credit Request. (a)
Prior to the making of each Loan (excluding Swingline Loans and Sterling
Swingline Loans), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a). Prior to the making
of any Swingline Loan, BTCo shall have received the notice required by
Section 1.03(b)(i). Prior to the making of any Sterling Swingline Loan, BTCo
shall have received the notice required by Section 1.03(c)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
The acceptance of the proceeds of each Loan or the making of
each Letter of Credit Request (occurring on the Restatement Effective Date
and thereafter) shall constitute a representation and warranty by each Credit
Party to the Administrative Agent and each of the Banks that all the
conditions specified in Section 5 (with respect to Credit Events on the
Restatement Effective Date) and in this Section 6 (with respect to Credit
Events on and after the Restatement Effective Date) and applicable to such
Credit Event exist as of that time. All of the
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Notes, certificates, legal opinions and other documents and papers referred
to in Section 5 and in this Section 6, unless otherwise specified, shall be
delivered to the Administrative Agent at the Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts or
copies for each of the Banks and shall be in form and substance satisfactory
to the Administrative Agent and the Required Banks.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein,
Holdings and each of the Borrowers make the following representations,
warranties and agreements, in each case after giving effect to the
Transaction, all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and issuance of the
Letters of Credit, with the occurrence of each Credit Event on or after the
Restatement Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 7 are true and correct on
and as of the Restatement Effective Date and in all material respects on the
date of each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
7.01 Corporate and Other Status. Each of Holdings and each
of its Subsidiaries (i) is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation,
(ii) has the requisite corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the ownership,
leasing or operation of its property or the conduct of its business requires
such qualifications except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
7.02 Corporate and Other Power and Authority. Each Credit
Party has the requisite corporate power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which
it is party, and each of such Documents constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless
of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents and the Floating Rate Loan
Documents) upon any of the property or assets of Holdings or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material agree-
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ment, contract or instrument, to which Holdings or any of its Subsidiaries is
a party or by which it or any of its property or assets is bound or to which
it may be subject or (iii) will violate any provision of the certificate of
incorporation or by-laws (or equivalent organizational documents) of Holdings
or any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except (x) as have been obtained or made on or prior to the Restatement
Effective Date and (y) as will be made pursuant to the terms of any Security
Document, provided that all such filings as described in this clause (y)
shall have been made within the time periods required by this Agreement and
the relevant Security Documents), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or
is required in connection with, (i) the execution, delivery and performance
of any Document or (ii) the legality, validity, binding effect or
enforceability of any such Document.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheet of the
Acquired Business at December 31, 1996 and December 31, 1997 and the related
statements of consolidated income, consolidated cash flows and shareholders'
equity of the Acquired Business for the respective fiscal year ended on such
date, and furnished to the Banks within 60 days following the Restatement
Effective Date in accordance with Section 13.22, will be prepared in
accordance with generally accepted accounting principles consistently applied.
(b) The unaudited consolidated balance sheets of each of (x)
Holdings and its Subsidiaries, (y) Adience and its Subsidiaries (excluding
Newco and its Subsidiaries) and (z) Newco and its Subsidiaries, each as of
April 30, 1997 and October 31, 1997, and the related unaudited consolidated
and consolidating statements of income and retained earnings and statement of
cash flows for the fiscal year or six-month period then ended, as the case
may be, in each case furnished to the Banks prior to the Restatement
Effective Date pursuant to Section 8.01(b) or (c), as the case may be, of the
Original Credit Agreement, present fairly the financial condition at the
respective dates of such balance sheets and results of operations for the
fiscal year or six-month period, as the case may be, ended on such dates, in
each case prepared in accordance with the requirements of said Sections
8.01(b) and (c) of the Original Credit Agreement.
(c) Since October 31, 1997 (but for this purpose, assuming
that the Transaction had been consummated on such date), there has been no
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Holdings, any
Borrower, Holdings and its Subsidiaries taken as a whole or any Borrower and
its Subsidiaries taken as a whole.
(d) (i) On and as of the Restatement Effective Date, after
giving effect to the Transaction and to all Indebtedness (including the
Loans) being incurred or assumed and Liens created by the Credit Parties in
connection therewith, (a) the sum of the assets, at a fair valuation, of each
of Holdings and its Subsidiaries taken as a whole and each Borrower on a
stand-alone basis will exceed their respective debts; (b) each of Holdings
and its Subsidiaries taken as a whole and each Borrower on a stand-alone
basis have not incurred and do not intend to incur, and do
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not believe that they will incur, debts beyond their ability to pay such
debts as such debts mature; and (c) each of Holdings and its Subsidiaries
taken as a whole and each Borrower on a stand-alone basis will have
sufficient capital with which to conduct their respective businesses. For
purposes of this Section 7.05(d), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right
to an equitable remedy for breach of performance if such breach gives rise to
a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
(e) Except (i) as disclosed in the financial statements
referred to in Sections 7.05(a) and (b) and (ii) liabilities arising in the
ordinary course of business since October 31, 1997, there were as of the
Restatement Effective Date no liabilities or obligations with respect to
Holdings or any of its Subsidiaries of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due) which,
either individually or in aggregate, would be material to Holdings and its
Subsidiaries taken as a whole. As of the Restatement Effective Date, neither
Holdings nor any Borrower knows of any basis for the assertion against it or
any of its Subsidiaries of any liability or obligation of any nature
whatsoever that is not disclosed in the financial statements referred to in
Sections 7.05(a) and (b) which, either individually or in the aggregate,
could reasonably be expected to be material to Holdings, any Borrower,
Holdings and its Subsidiaries taken as a whole or any Borrower and its
Subsidiaries taken as a whole other than liabilities arising under the
Acquisition Documents.
(f) On and as of the Restatement Effective Date, the
Projections delivered to the Administrative Agent pursuant to Section 5.15
have been prepared in good faith and are based on reasonable assumptions
under the then known facts and circumstances (it being understood that
nothing contained herein shall constitute a representation that the results
forecasted in such Projections will in fact be achieved), and there are no
statements or conclusions in any of the Projections which are based upon or
include information known to Holdings or any Borrower to be misleading in any
material respect or which knowingly fail to take into account material
information regarding the matters reported therein. On the Restatement
Effective Date, Holdings and each of the Borrowers believe that the
Projections are reasonable and attainable based upon the then known facts and
circumstances, it being understood that nothing contained herein shall
constitute a representation that the results forecasted in such Projections
will in fact be achieved.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Holdings or any Borrower, threatened (i)
with respect to any Document or (ii) that are reasonably likely to result in
a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information
(other than the Projections, which are covered in Section 7.05(f)) (taken as
a whole) furnished by any Credit Party in writing to the Administrative Agent
or any Bank (including, without limitation, all information contained in the
Documents) for purposes of or in connection with this Agreement, the other
Credit Documents or any transaction contemplated herein or therein is, and
all other such factual information (taken as a whole) hereafter furnished by
or on behalf of any Credit Party in writing to the Administrative Agent or
any Bank will be, true and accurate in all material respects
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on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in
light of the circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds
of the Adience A Term Loans, Adience B-2 Term Loans and Adience C Term Loans
will be used by Adience (i) to effect the Transaction, (ii) to pay fees and
expenses related to the Transaction and (iii) to the extent that proceeds of
the Adience A term Loans, Adience B-2 Term Loans and Adience C Term Loans
remain after the application of same pursuant to clauses (i) and (ii) above,
to repay outstanding Revolving Loans.
(b) The proceeds of Revolving Loans incurred by each
Revolving Loan Borrower will be used for such Revolving Loan Borrower's and
its Subsidiaries' (excluding, in the case of Borrowings of Revolving Loans by
Adience, ▇▇▇▇▇▇▇▇ and its Subsidiaries) general corporate and working capital
purposes, provided that in no circumstances shall any Revolving Loans
incurred by ▇▇▇▇▇▇▇▇ be used to repay Loans incurred in connection with the
acquisition of ▇▇▇▇▇▇▇▇ by Newco.
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof nor the occurrence of any other Credit Event
will violate or be inconsistent with the provisions of Regulation G, T, U or
X.
7.09 Tax Returns and Payments. Except as set forth on
Schedule XII, Holdings and each of its Subsidiaries have timely filed or
caused to be timely filed with the appropriate taxing authority, all Federal,
state, local, foreign and other returns, statements, forms and reports for
taxes (the "Returns") required to be filed by or with respect to the income,
properties or operations of Holdings and/or any of its Subsidiaries. The
Returns accurately reflect all liability for taxes of Holdings and its
Subsidiaries for the periods covered thereby. Holdings and each of its
Subsidiaries have paid all taxes payable by them other than taxes contested
in good faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles. There is no
action, suit, proceeding, investigation, audit, or claim now pending or, to
the knowledge of any Credit Party, threatened by any authority regarding any
taxes relating to Holdings or any of its Subsidiaries. As of the Restatement
Effective Date, neither Holdings nor any of its Subsidiaries has entered into
an agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings or any of its Subsidiaries, is aware of any agreement or
waiver extending any statute of limitations relating to the payment or
collection of other taxes of Holdings or any of its Subsidiaries, or is aware
of any circumstances that would cause the taxable years or other taxable
periods of Holdings or any of its Subsidiaries not to be subject to the
normally applicable statute of limitations. None of Holdings or any of its
Subsidiaries has provided, with respect to itself or property held by it, any
consent under Section 341 of the Code. None of Holdings or any of its
Subsidiaries has incurred, or will incur, any tax liability in connection
with the Acquisition or any other transactions contemplated hereby which
could reasonably be expected to have a Material Adverse Effect.
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7.10 Compliance with ERISA. (a) Schedule XIII sets forth
each Plan that, on the Restatement Effective Date is maintained, sponsored or
contributed to by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate; and each Plan (and each related trust, insurance contract or fund)
is in compliance with its terms and with all applicable laws, including,
without limitation, ERISA and the Code, except where noncompliance could not
reasonably be expected to result in a Material Adverse Effect. Each Plan (and
each related trust, if any) which is intended to be qualified under Section
401(a) of the Code or its prototype Plan document (to the best knowledge of
Holdings in the case of multiemployer plans (as defined in section 4001(a)(3)
of ERISA)) has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code. None of the following conditions exist, the liability
for which, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect: no Reportable Event has occurred with respect to a
Plan; none of Holdings or any of its ERISA Affiliates received notice that
any Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of
ERISA) is insolvent or in reorganization; no Plan has an Unfunded Current
Liability which, when added to the aggregate amount of Unfunded Current
Liabilities with respect to all other Plans, exceeds the aggregate amount of
such Unfunded Current Liabilities that existed on the Restatement Effective
Date by $2,500,000; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the
meaning of such sections of the Code or ERISA, or has applied for or received
a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been timely made; neither Holdings nor any Subsidiary of Holdings
nor any ERISA Affiliate has incurred any liability (including any indirect,
contingent or secondary liability) to or on account of a Plan (other than
with respect to the obligation to contribute to a multiemployer plan (as
defined in Section 4001(a)(3) of ERISA) in the ordinary course of business)
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code
or expects to incur any such liability under any of the foregoing Sections
with respect to any Plan; no condition exists which presents a material risk
to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring
a liability to or on account of a Plan pursuant to the foregoing provisions
of ERISA and the Code; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of
ERISA; no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, or, to the
knowledge of Holdings or any Subsidiary of Holdings or any ERISA Affiliate,
expected or threatened; using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings and its Subsidiaries and its ERISA Affiliates to all
Plans which are multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) in the event of a complete withdrawal therefrom, as of the close of
the most recent fiscal year of each such Plan ended prior to the date of the
most recent Credit Event, would not exceed $6,250,000; each group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
which covers or has covered employees or former employees of Holdings, any
Subsidiary of Holdings, or any ERISA Affiliate has at all times been operated
in substantial compliance with the provisions of Part 6 of subtitle B of
Title I of ERISA and Section 4980B of the Code and no material liability
exists or could arise as a result of any failure to so comply; and no lien
imposed under the Code or ERISA on the assets of Holdings
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or any Subsidiary of Holdings or any ERISA Affiliate exists or is likely to
arise on account of any Plan; and Holdings and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) and which,
as of the Restatement Effective Date, could reasonably be expected to give
rise to a liability for such benefits based on the accumulated
post-retirement benefit obligation determined by Holdings' actuaries in
accordance with Statement of Financial Accounting Standards No. 106 that
exceeds $10,500,000 or any pension plan of Holdings or its Subsidiaries, that
is not tax-qualified under Section 401(a) of the Code, the obligations with
respect to which could reasonably be expected to have a Material Adverse
Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, except
where the failure to so comply would not result in a Material Adverse Effect.
Except as would not result in a Material Adverse Effect, all contributions
required to be made with respect to a Foreign Pension Plan have been timely
made. Except as would not result in a Material Adverse Effect, neither
Holdings nor any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign Pension
Plan. Except as would not result in a Material Adverse Effect, the present
value of the accrued benefit liabilities (whether or not vested) under each
Foreign Pension Plan, determined as of the end of the most recently ended
fiscal year of Holdings on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities.
7.11 The Security Documents. (a) The provisions of the U.S.
Security Agreement are effective to create in favor of the Collateral Agent
for the benefit of the Secured Creditors a legal, valid and enforceable
security interest in all right, title and interest of the Credit Parties
party thereto in the U.S. Security Agreement Collateral described therein,
subject to the provisions of the U.S. Security Agreement, and the Collateral
Agent, for the benefit of the Secured Creditors, has a fully perfected first
lien on, and security interest in, all right, title and interest in all of
the U.S. Security Agreement Collateral described therein, subject to no other
Liens other than Permitted Liens. The recordation of the Assignment of
Security Interest in U.S. Patents and Trademarks in the form attached to the
U.S. Security Agreement in the United States Patent and Trademark Office
together with filings on Form UCC-1 made pursuant to the U.S. Security
Agreement will create, as may be perfected by such filing and recordation, a
perfected security interest granted to the Collateral Agent in the trademarks
and patents covered by the U.S. Security Agreement and the recordation of the
Assignment of Security Interest in U.S. Copyrights in the form attached to
the U.S. Security Agreement with the United States Copyright Office together
with filings on Form UCC-1 made pursuant to the U.S. Security Agreement will
create, as may be perfected by such filing and recordation, a perfected
security interest granted to the Collateral Agent in the copyrights covered
by the U.S. Security Agreement. Except for filings made pursuant to Section
5.12 on or prior to the Restatement Effective Date, no additional filings
with respect to the U.S. Security Agreement are required at the time of, or
in connection with the occurrence of, the Restatement Effective Date.
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(b) Subject to the terms of the U.S. Pledge Agreement, the
security interests created in favor of the Collateral Agent, as Pledgee, for
the benefit of the Secured Creditors under the U.S Pledge Agreement
constitute first priority perfected security interests in the Pledged
Securities described in the U.S. Pledge Agreement, subject to no security
interests of any other Person. No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security
interests created in the Pledged Securities under the U.S. Pledge Agreement.
(c) Subject to the terms of the Mortgages (as amended by the
Mortgage Amendments in the case of the Original Mortgages), the Mortgages
create, for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and mortgage lien on all of the
Mortgaged Properties in favor of the Collateral Agent (or such other trustee
as may be required or desired under local law) for the benefit of the Secured
Creditors, superior to and prior to the rights of all third persons (except
that the security interest and mortgage lien created in the Mortgaged
Properties may be subject to the Permitted Encumbrances related thereto) and
subject to no other Liens (other than Permitted Liens). Schedule III
contains a true and complete list of each parcel of Real Property owned or
leased by Holdings and its Subsidiaries on the Restatement Effective Date,
and the type of interest therein held by Holdings or such Subsidiary.
Holdings and each of its Subsidiaries have good and marketable title to all
fee-owned Real Property and valid leasehold title to all Leaseholds, in each
case free and clear of all Liens except Permitted Liens.
(d) Subject to the terms of the respective U.K. Security
Documents, the security interests created in favor of the Collateral Agent,
as Chargee, for the benefit of the Secured Creditors under the U.K. Security
Documents constitute first priority perfected security interests in the
assets charged pursuant to the U.K. Security Documents, subject to no
security interests of any other Person. No filings or recordings are
required in order to perfect (or maintain the perfection or priority of) the
security interests created in the assets charged pursuant to the U.K.
Security Documents other than the filing of the U.K. Security Documents
together with duly completed Companies Forms M395 with the Registrar of
Companies in England and Wales within 21 days of the date of those documents
(which filings, if this representation is made at any time after the 21st day
following the Restatement Effective Date, have been made).
7.12 Representations and Warranties in Other Documents. All
representations and warranties set forth in the Documents (other than the
Credit Documents) were true and correct in all material respects at the time
as of which such representations and warranties were made (or deemed made);
provided that, to the extent such representations and warranties in the
Acquisition Documents were made by the sellers thereunder, the
representations and warranties made pursuant to this Section 7.12 are to the
best knowledge of the Credit Agreement Parties.
7.13 Properties. Holdings and each of its Subsidiaries have
good and marketable title to all material properties owned by them, including
all property reflected in the financial statements referred to in Sections
7.05(a), (b) and (c) (except as sold or otherwise disposed of since the date
of such balance sheet in the ordinary course of business), free and clear of
all Liens, other than Permitted Liens.
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7.14 Capitalization. On the Restatement Effective Date and
after giving effect to the Transaction and the other transactions
contemplated hereby, the authorized capital stock of (w) Holdings shall
consist of (i) 500,000 shares of common stock, $.01 par value per share, of
which 84,396 shares are issued and outstanding, (ii) 100,000 shares of Class
B Common Stock, par value $.01 per share, of which 16,751 shares are issued
and outstanding and (iii) 400,000 shares of preferred stock, $.01 par value
per share, (x) Adience shall consist of 1,000 shares of common stock, $.01
par value per share, (y) Newco shall consist of (i) 12,499,900 ordinary
shares of L1 each, and (ii) 10,500,000 shares of 6% fixed non-cumulative
redeemable preferred shares of L1, and (z) ▇▇▇▇▇▇▇▇ shall consist of
12,500,000 ordinary shares of L1 each. All such outstanding shares have been
duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. Neither Holdings nor any of its Subsidiaries has
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
7.15 Subsidiaries. Schedule IV correctly sets forth, as of
the Restatement Effective Date and after giving effect to the Transaction,
each Subsidiary of Holdings, and the direct and indirect ownership interest
of Holdings therein. Schedule IX correctly sets forth, as of the Restatement
Effective Date and after giving effect to the Transaction, an Organization
Chart showing the corporate structure of Holdings and its Subsidiaries,
consistent with Schedule IV.
7.16 Compliance with Statutes, etc. Each of Holdings and
each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 Investment Company Act. Neither Holdings 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.
7.18 Public Utility Holding Company Act. Neither Holdings
nor any of its Subsidiaries is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7.19 Environmental Matters. (a) Holdings and each of its
Subsidiaries have complied with, and on the date of such Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws. There are no pending or,
to the best knowledge of Holdings or any Borrower, overtly threatened
Environmental Claims against Holdings or any of its Subsidiaries (including
any such Environmental Claim arising out of the ownership or operation by
Holdings or any of its Subsidiaries of any Real Property no longer owned by
Holdings or any of its Subsidiaries) or, to the best knowl-
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edge of Holdings or any Borrower, any Real Property owned or operated by
Holdings or any of its Subsidiaries. There are no facts, circumstances,
conditions or occurrences with respect to the business or operations of
Holdings or any of its Subsidiaries or any Real Property owned or operated by
Holdings or any of its Subsidiaries (including any Real Property formerly
owned or operated by Holdings or any of its Subsidiaries but no longer owned
by Holdings or any of its Subsidiaries) or, to the best knowledge of Holdings
or any Borrower, any real property adjoining or adjacent to any such Real
Property that would reasonably be expected (i) to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any Real
Property owned or operated by Holdings or any of its Subsidiaries, or (ii) to
cause any Real Property owned or operated by Holdings or any of its
Subsidiaries to be subject to any restrictions on the ownership, occupancy or
transferability of such Real Property by Holdings or any of its Subsidiaries
under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property
owned or operated by Holdings or any of its Subsidiaries where such
generation, use, treatment, storage or transportation has violated or would
reasonably be expected to violate any applicable Environmental Law.
Hazardous Materials have not at any time been Released on or from any Real
Property owned or operated by Holdings or any of its Subsidiaries where such
Release has violated or would reasonably be expected to violate any
applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
7.19, the representations made in this Section 7.19 shall not be untrue
unless the aggregate effect of all violations, Environmental Claims, facts,
circumstances, conditions, occurrences, restrictions, failures and
noncompliances of the types described above would reasonably be expected to
have a Material Adverse Effect.
7.20 Labor Relations. Neither Holdings nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. Except as disclosed on Schedule
XIV, there is (i) no unfair labor practice complaint pending against Holdings
any of its Subsidiaries or, to the best knowledge of Holdings or any
Borrower, overtly threatened against any of them, before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against Holdings or
any of its Subsidiaries or, to the best knowledge of Holdings or any
Borrower, overtly threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against Holdings or any of its
Subsidiaries or, to the best knowledge of Holdings or any Borrower, overtly
threatened against Holdings or any of its Subsidiaries, (iii) to the best
knowledge of Holdings or any Borrower, no union representation question
existing with respect to the employees of Holdings or any of its Subsidiaries
and (iv) no payments are due and no circumstances exist which might make any
payment due by any of the U.K. Subsidiaries under the provisions of the
Employment Rights ▇▇▇ ▇▇▇▇, except (with respect to any matter specified in
clause (i), (ii), (iii) or (iv) above, either individually or in the
aggregate) such as could not reasonably be expected to have a Material
Adverse Effect.
7.21 Patents, Licenses, Franchises and Formulas. Each of
Holdings and each of its Subsidiaries owns all the patents, trademarks,
permits, service marks, trade names, copyrights,
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licenses, franchises, proprietary information (including but not limited to
rights in computer programs and databases) and formulas, or rights with
respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, necessary for the present conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, could reasonably be expected to
result in a Material Adverse Effect.
7.22 Indebtedness. Schedule V sets forth a true and complete
list of all Indebtedness of Holdings and its Subsidiaries as of the
Restatement Effective Date and which is to remain outstanding after giving
effect to the Transaction (excluding the Loans, the Letters of Credit and the
Floating Rate Loans, the "Existing Indebtedness"), in each case, showing the
aggregate principal amount thereof and the name of the respective borrower
and any Credit Party or any of its Subsidiaries which directly or indirectly
guaranteed such debt.
7.23 Transaction. At the time of consummation thereof, the
Transaction shall have been consummated in accordance with the terms of the
respective Documents and all applicable laws. At the time of consummation
thereof, all material consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate the Transaction to the extent then required have been obtained,
given, filed or taken and are or will be in full force and effect (or
effective judicial relief with respect thereto has been obtained). All
applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action
being taken by any competent authority which restrains, prevents, or imposes
material adverse conditions upon the Transaction. Additionally, there does
not exist any judgment, order or injunction prohibiting or imposing material
adverse conditions upon the Transaction, or the occurrence of any Credit
Event or the performance by any Credit Party of its obligations under the
Documents to which it is party.
7.24 Special Purpose Corporation. Holdings has no
significant assets (other than the capital stock of Adience) or liabilities
(other than those liabilities under this Agreement, the Floating Rate Loan
Documents and the Acquisition Documents).
7.25 No Tax Sharing Agreements. On the Restatement Effective
Date, neither Holdings nor any of its Subsidiaries is party to any tax
sharing, tax allocation or other similar agreements other than the
Alpine/Holdings Tax Sharing Agreement (collectively, including the
Alpine/Holdings Tax Sharing Agreement, the "Tax Sharing Agreements").
7.26 Updated Security Agreement and Pledge Agreement
Schedules. (a) The updated schedules to the U.S. Pledge Agreement and the
U.S. Security Agreement furnished pursuant to Sections 5.11 and 5.12 are true
and correct, in all material respects, as of the Restatement Effective Date,
and accurately present all information which was originally required to be
scheduled pursuant to the U.S. Pledge Agreement and the U.S. Security
Agreement on the Original Effective Date, but modified to reflect the
additional Credit Parties on the Restatement Effective Date and any changes
which occurred between the Original Effective Date and the Restatement
Effective Date.
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(b) The information set forth in any and all notices
delivered pursuant to Section 5.13 is true and accurate in all material
respects.
SECTION 8. Affirmative Covenants. Holdings and each Borrower
hereby covenants and agrees that on and after the Restatement Effective Date
and until the Total Commitments and all Letters of Credit have terminated and
the Loans, Notes and Unpaid Drawings, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Credit Agreement Parties
will furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month of Holdings (excluding any fiscal month which ends on the last
day of a fiscal quarter or fiscal year of Holdings), the consolidated balance
sheet of each of (x) Holdings and its Subsidiaries, (y) Adience and its
Subsidiaries and (z) Newco and its Subsidiaries, each as at the end of such
fiscal month and the related consolidated statements of income and retained
earnings and statement of cash flows for such fiscal month and for the
elapsed portion of the fiscal year ended with the last day of such fiscal
month, in each case, setting forth comparative figures for the corresponding
fiscal month in the prior fiscal year and comparable budgeted figures for
such fiscal month (provided that the Credit Agreement Parties shall only be
required to show such comparative information with respect to ▇▇▇▇▇▇▇▇ and
its Subsidiaries for any period prior to the Original Effective Date to the
extent of such comparative figures may be practicably obtained).
(b) Quarterly Financial Statements. Within 45 days after the
close of each of the first three quarterly accounting periods in each fiscal
year of Holdings, (i) the consolidated (and, in the case of the statements
for Holdings and its Subsidiaries, consolidating) and consolidating balance
sheets of each of (x) Holdings and its Subsidiaries, (y) Adience and its
Subsidiaries and (z) Newco and its Subsidiaries, each as at the end of such
quarterly accounting period and the related consolidated and consolidating
statements of income and retained earnings and statement of cash flows for
such quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly accounting period, in each
case setting forth comparative figures for the related periods in the prior
fiscal year, all of which shall be certified by the chief financial officer
of Holdings, subject to normal year-end audit adjustments and the absence of
footnotes and (ii) management's discussion and analysis of the important
operational and financial developments during the quarterly and year-to-date
periods.
(c) Annual Financial Statements. Within 90 days after the
close of each fiscal year of Holdings, (i) the consolidated (and, in the case
of the statements for Holdings and its Subsidiaries, consolidating) balance
sheets of each of (x) Holdings and its Subsidiaries, (y) Adience and its
Subsidiaries and (z) Newco and its Subsidiaries, each as at the end of such
fiscal year and the related consolidated and consolidating statements of
income and retained earnings and of cash flows for such fiscal year setting
forth comparative figures for the preceding fiscal year and certified (x) in
the case of the consolidating financial statements, by the chief financial
officer of Holdings and (y) in the case of the consolidated financial
statements, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such other independent certified public
accountants of recognized national
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standing reasonably acceptable to the Administrative Agent, together with a
report of such accounting firm stating that in the course of its regular
audit of the respective financial statements, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
obtained no knowledge of any Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such an Event of
Default has occurred and is continuing, a statement as to the nature thereof
and (ii) management's discussion and analysis of the important operational
and financial developments during the respective fiscal year.
(d) Management Letters. Promptly after Holdings' or any of
its Subsidiaries' receipt thereof, a copy of any "management letter"
addressed to the board of directors of Holdings or such Subsidiary from its
certified public accountants and the management's responses thereto.
(e) Budgets. No later than 30 days after the first day of
each fiscal year of Holdings, budgets (for (i) Holdings and its Subsidiaries
taken as a whole, (ii) Adience and its Subsidiaries and (iii) Newco and its
Subsidiaries) in form satisfactory to the Administrative Agent and the
Required Banks (including budgeted statements of income and sources and uses
of cash and balance sheets) prepared by Holdings for (x) each of the months
of such fiscal year prepared in reasonable detail and (y) the immediately
following fiscal year prepared in summary form, in each case accompanied by
the statement of the chief financial officer of Holdings to the effect that,
to the best of his knowledge, the respective budget is a reasonable estimate
for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Sections 8.01(b) and (c), a
certificate of the chief financial officer of Holdings to the effect that, to
the best of such officer's knowledge, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof, which
certificate shall (x) set forth in reasonable detail the calculations
required to establish whether Holdings and its Subsidiaries were in
compliance with the provisions of Section 4.02(f) (to the extent delivered
with the financial statements required by Section 8.01(c)), 9.03, 9.04, 9.05
and 9.07 through 9.11, inclusive, at the end of such fiscal quarter or year,
as the case may be and (y) if delivered with the financial statements
required by Section 8.01(c), set forth in reasonable detail the amount of
Holdings Excess Cash Flow and Newco Excess Cash Flow for the respective
Excess Cash Payment Period.
(g) Notice of Default or Litigation. Promptly, and in any
event within three Business Days (or five Business Days in the case of
following clause (ii)) after an executive or financial officer of any Credit
Agreement Party obtains actual knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or an Event of Default
and (ii) any litigation or governmental investigation or proceeding pending
(x) against Holdings or any of its Subsidiaries which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect,
(y) with respect to any material Indebtedness of Holdings or any of its
Subsidiaries or (z) with respect to any Document.
(h) Other Reports and Filings. Promptly after the filing or
delivery thereof, copies of all other financial information, proxy materials
and reports, if any, which Holdings or
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any of its Subsidiaries shall publicly file with the Securities and Exchange
Commission or any successor thereto (the "SEC") or the Registrar of Companies
in England and Wales or shall deliver to its shareholders or to holders of
its Indebtedness pursuant to the terms of the documentation governing such
Indebtedness (or any trustee, agent or other representative therefor).
(i) Environmental Matters. Promptly upon, and in any event
within ten Business Days after, an executive or financial officer of any
Credit Agreement Party obtains knowledge thereof, notice of one or more of
the following environmental matters, unless such environmental matters would
not, individually or when aggregated with all other such environmental
matters, be reasonably expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against
Holdings or any of its Subsidiaries or any Real Property owned or
operated by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by the Borrower or any of its Subsidiaries
that (a) results in noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) would
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any
Real Property owned or operated by the Borrower or any of its
Subsidiaries that would reasonably be expected to cause such
Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower
or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial
action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated by
the Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency (with the items described above in preceding clauses
(i) through (iv) being herein called, collectively,
"Environmental Matters").
All such notices shall describe in reasonable detail the
nature of the respective Environmental Matter and Holdings' or such
Subsidiary's intended response thereto. In addition, Holdings or any of its
Subsidiaries will provide the Banks with copies of all communications between
Holdings or any of its Subsidiaries and any government or governmental agency
relating to Environmental Laws which would reasonably be expected to have a
Material Adverse Effect, all notices of any Environmental Claims, and such
detailed reports of any outstanding Environmental Claim as may reasonably be
requested by the Banks; provided, that in any event Holdings and its
Subsidiaries shall deliver to each Bank all notices received by Holdings or
any of its Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA which identify Holdings or any of its Subsidiaries as
potentially responsible parties for response costs or which otherwise notify
Holdings or any of its Subsidiaries of potential liability under CERCLA.
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(j) Annual Meetings with Banks. At the request of the
Administrative Agent, at a date to be mutually agreed upon between the
Administrative Agent and Adience occurring on or prior to the 120th day after
the close of each fiscal year of Holdings, Adience shall hold a meeting with
all of the Banks at which meeting shall be reviewed the financial results of
the previous fiscal year and the financial condition of Holdings and its
Subsidiaries and the budgets presented for the current fiscal year of
Holdings and its Subsidiaries.
(k) Notices Pursuant to Acquisition Documents. Promptly
after the receipt or delivery thereof by any Credit Agreement Party or any of
its Subsidiaries, copies of any notices (excluding immaterial notices not
involving adjustments to the purchase price, claims for indemnities or
damages, notices of breach or similar types of claims or notices) sent or
received by any Credit Agreement Party or any of its Subsidiaries after the
Restatement Effective Date pursuant to any Acquisition Document.
(l) Canadian Working Capital Outstandings. Promptly after
the close of each fiscal month of Holdings, a certificate of an Authorized
Officer of Holdings certifying the Dollar Equivalent of the amount of
Canadian Subsidiary Working Capital Oustandings at such time.
(m) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to Holdings or
any of its Subsidiaries as any Bank may reasonably request.
8.02 Books, Records and Inspections. Holdings will, and will
cause each of its Subsidiaries to, keep proper books of record and accounts
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all
dealings and transactions in relation to its business and activities. Upon
prior notice, Holdings will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Administrative Agent or
any Bank to visit and inspect, during regular business hours and under
guidance of officers of Holdings or such Subsidiary, any of the properties of
Holdings or such Subsidiary, and to examine the books of account of Holdings
or such Subsidiary and discuss the affairs, finances and accounts of Holdings
or such Subsidiary with, and be advised as to the same by, its and their
officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or such
Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule VI
sets forth a true and complete listing of all insurance maintained by
Holdings and its Subsidiaries as of the Restatement Effective Date. Holdings
will, and will cause each of its Subsidiaries to, (i) keep all property
necessary to the business of the Borrower and its Subsidiaries in reasonably
good working order and condition, ordinary wear and tear excepted, (ii)
maintain insurance on all such property in at least such amounts and against
at least such risks as is consistent and in accordance with industry practice
for companies similarly situated owning similar properties in the same
general areas in which Holdings or any of its Subsidiaries operates, and
(iii) furnish to the Administrative Agent or any Bank, upon written request,
full information as to the insurance carried. At any time that insurance at
levels described on Schedule VI is not being maintained by Holdings or any
Subsidiary of Holdings, Holdings will, or will cause one of its Subsidiaries
to, promptly notify the Administrative Agent and the Banks in writing and, if
thereafter notified by the Required Banks to
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do so, Holdings or any such Subsidiary, as the case may be, shall obtain such
insurance at such levels to the extent such insurance is reasonably
available. In addition to the requirements of the two immediately preceding
sentences, Holdings will, and will cause each of its Subsidiaries to, at all
times cause property and business interruption insurance of the types
described in Schedule VI to be maintained (with the same scope of coverage as
that described in Schedule VI) at levels which are at least as great as the
respective amounts described on Schedule VI.
(b) Holdings will, and will cause each of its Subsidiaries
to, at all times keep its property insured in favor of the Collateral Agent,
and all policies or certificates (or certified copies thereof) with respect
to such insurance (and any other insurance maintained by Holdings and/or its
Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction
for the benefit of the Collateral Agent (including, without limitation, by
naming the Collateral Agent as loss payee and/or additional insured), (ii)
shall state that such insurance policies shall not be cancelled or revised
without at least 30 days' prior written notice thereof by the respective
insurer to the Collateral Agent, (iii) shall provide that the respective
insurers irrevocably waive any and all rights of subrogation with respect to
the Collateral Agent and the Secured Creditors, (iv) shall contain the
standard non-contributing mortgage clause endorsement in favor of the
Collateral Agent with respect to hazard liability insurance, (v) shall,
except in the case of public liability insurance, provide that any losses
shall be payable notwithstanding (A) any act or neglect of Holdings or any of
its Subsidiaries, (B) the occupation or use of the properties for purposes
more hazardous than those permitted by the terms of the respective policy if
such coverage is obtainable at commercially reasonable rates and is of the
kind from time to time customarily insured against by Persons owning or using
similar property and in such amounts as are customary, (C) any foreclosure or
other proceeding relating to the insured properties or (D) any change in the
title to or ownership or possession of the insured properties and (vi) shall
be deposited with the Collateral Agent (although proceeds received thereunder
shall be permitted to be used, subject to (x) the absence of any Default
under Section 10.01 and 10.05 and to the absence of any Event of Default and
(y) compliance with the relevant provisions thereof, in the manner
contemplated by Section 4.02(g)).
(c) If Holdings or any of its Subsidiaries shall fail to
insure its property in accordance with this Section 8.03, or if Holdings, or
if Holdings any of its Subsidiaries shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Collateral Agent shall
have the right (but shall be under no obligation), upon 10 Business Days'
prior notice to Adience, to procure such insurance and Holdings and each of
the Borrowers agree to reimburse the Collateral Agent for all costs and
expenses of procuring such insurance.
8.04 Corporate Franchises. Holdings will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets by Holdings or any of its
Subsidiaries in accordance with Section 9.02 or (ii) the withdrawal by
Holdings or any of its Subsidiaries of its qualification as a foreign
corporation in any jurisdiction where such withdrawal could not reasonably be
expected to have a Material Adverse Effect.
8.05 Compliance with Statutes, etc. Holdings will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable
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restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions relating
to environmental standards and controls), except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
8.06 Compliance with Environmental Laws. (a) Holdings will
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of
its Real Property now or hereafter owned or operated by Holdings or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause
to be kept all such Real Property free and clear of any Liens imposed
pursuant to such Environmental Laws. Neither Holdings nor any of its
Subsidiaries will generate, use, treat, store, release or dispose of, or
permit the generation, use, treatment, storage, release or disposal of
Hazardous Materials on any Real Property now or hereafter owned or operated
by Holdings or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property,
except for Hazardous Materials generated, used, treated, stored, released or
disposed of at any such Real Properties in compliance in all material
respects with all applicable Environmental Laws and as is reasonably required
in connection with the operation, use and maintenance of the business or
operations of Holdings or any of its Subsidiaries.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, Adience will provide, at its
sole cost and expense, an environmental site assessment report concerning any
Real Property owned or operated by Holdings and its Subsidiaries, prepared by
an environmental consulting firm reasonably acceptable to the Administrative
Agent, indicating the presence or absence of Hazardous Materials and the
estimated reasonably likely cost of any removal or remedial action required
under Environmental Laws in connection with such Hazardous Materials on such
Real Property, provided that in no event shall such request be made more
often than once every two years for any particular Real Property unless
either (i) an Event of Default shall be in existence or (ii) the Banks
receive notice under Section 8.01(i) of any Environmental Matter for which
notice is required to be delivered for any such Real Property. If Adience
fails to provide the same within 90 days after such request was made, the
Administrative Agent may order the same, the cost of which shall be borne by
Adience, and Adience shall grant and hereby grants to the Administrative
Agent and the Banks and their agents access to such Real Property and
specifically grant the Administrative Agent and the Banks an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment using a nationally recognized environmental consulting firm
reasonably acceptable to Adience at any reasonable time upon reasonable
notice to Adience, all at the sole costs and reasonable expense of Adience.
8.07 ERISA. As soon as possible and, in any event, within 20
days after Holdings or any Subsidiary of Holdings or any ERISA Affiliate
knows or could be reasonably expected to know of the occurrence of any of the
following, Adience will deliver to each of the Banks a certificate of the
chief financial officer of Adience setting forth the full details as to such
occurrence and the action, if any, that Holdings, such Subsidiary or such
ERISA Affiliate is required
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or proposes to take, together with any notices required to be given to or
filed with or by Holdings, the Subsidiary, the ERISA Affiliate, the PBGC, a
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that Adience has
previously delivered to the Banks a certificate and notices (if any)
concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement
of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1)
thereof), and an event described in subsection .62, .63, .64, .65, .66, .67
or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with
respect to such Plan within the following 30 days; that an accumulated
funding deficiency, within the meaning of Section 412 of the Code or Section
302 of ERISA, has been incurred or an application may be or has been made to
the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to
be made to a Plan or Foreign Pension Plan has not been timely made; that a
Plan has been or could reasonably be expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability which, when added to the aggregate amount of
Unfunded Current Liabilities with respect to all other Plans, exceeds the
aggregate amount of such Unfunded Current Liabilities that existed on the
Restatement Effective Date by $2,500,000 or more; that proceedings could
reasonably be expected to be or have been instituted to terminate or appoint
a trustee to administer a Plan which is subject to Title IV of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that Holdings, any Subsidiary of Holdings
or any ERISA Affiliate will or could reasonably be expected to incur any
liabilities (including any indirect, contingent or secondary liabilities)
that, individually or in the aggregate, exceed $6,250,000 to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l)
of ERISA or with respect to a group health plan (as defined in Section 607(1)
of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code;
or that Holdings or any Subsidiaries of Holdings could reasonably be expected
to incur any liability not existing on the Restatement Effective Date
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) other than liabilities for
such benefits, determined as of the Restatement Effective Date, which could
reasonably be expected to be less than $10,500,000, based on the accumulated
post-retirement benefit obligations as calculated by Holdings' actuaries in
accordance with Statement of Financial Accounting Standard No. 106 or any
pension plan of Holdings or its Subsidiaries that is not tax-qualified under
Section 401(a) of the Code or any Foreign Pension Plan. Holdings will
deliver to each of the Banks (i) a complete copy of the annual report on
Internal Revenue Service Form 5500-series of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions
and other supporting statements, certifications, schedules and information)
required to be filed with the Internal Revenue Service and (ii) copies of any
records, documents or other information that must be furnished to the PBGC
with respect to any Plan pursuant to Section 4010 of ERISA. In addition to
any certificates or notices delivered to the Banks pursuant to the first
sentence hereof, copies of annual reports and any records, documents or
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other information required to be furnished to the PBGC and any material
notices received by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered
to the Banks no later than 10 days after the date such annual report has been
filed with the Internal Revenue Service or such notice has been received by
Holdings, the Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Holdings will
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
April 30, and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on July 31, October 31, January 31 and April 30.
8.09 Performance of Obligations. Holdings will, and will
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement and other debt
instrument by which it is bound, except such non-performances as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.10 Payment of Taxes. Holdings will, and will cause each of
its Subsidiaries to, pay and discharge, or cause to be paid and discharged,
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any properties belonging to it, in each
case on a timely basis, and all lawful claims which, if unpaid, might become
a lien or charge upon any properties of Holdings or any of its Subsidiaries;
provided that neither Holdings nor any of its Subsidiaries will be required
to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by appropriate proceedings if it has maintained
adequate reserves with respect thereto in accordance with generally accepted
accounting principles.
8.11 Additional Security; Further Assurances. (a) Not later
than 30 days after any request is received by Adience from the Administrative
Agent or the Required Banks, the Credit Agreement Parties shall cause (x) any
Domestic Subsidiary which is not already a U.S. Subsidiary Guarantor to
become a U.S. Subsidiary Guarantor by executing and delivering a counterpart
of the Subsidiary Assumption Agreement and (y) any Foreign Subsidiary which
is not already a Guarantor to become an additional Guarantor by entering into
an unconditional guarantee of all obligations of the U.K. Borrowers pursuant
to this Agreement and the other Credit Documents, in each case pursuant to a
guarantee in form and substance (and governed by the laws of a jurisdiction)
satisfactory to the Administrative Agent (with each guarantee delivered
pursuant to this clause (y), or pursuant to Section 8.12, being herein called
an "Additional Guaranty"). Notwithstanding anything to the contrary contained
above, in no event shall an Immaterial Foreign Subsidiary be required to
become a Credit Party or be required to execute and delivery any Guaranty or
any Security Document.
(b) Adience will, and will cause each of its Subsidiaries
(other than the Canadian Subsidiaries of Adience which grant security
interests in their operating assets and properties in connection with the
Canadian Subsidiary Working Capital Facility; it being understood that (x)
65% of the Voting Stock (as defined in the U.S. Pledge Agreement) and (y)
100% of the non-Voting Stock of the first-tier Canadian Subsidiaries of
Adience or any U.S. Subsidiary Guarantor shall be pledged pursuant to the
U.S. Pledge Agreement) to, (x) grant to the Collateral Agent security
interests and mortgages in such assets and properties of Holdings
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and its Subsidiaries as are not covered by the original Security Documents
(without limiting the foregoing, which grant may be required in respect of
all or any part of the assets of any Person which becomes a Guarantor after
the Restatement Effective Date pursuant to the requirements of preceding
clause (a)) and (y) enter into any additional security documentation as may
be deemed by the Administrative Agent or the Required Banks as necessary or
desirable (including, in the case of any pledge of stock of a Foreign
Subsidiary by Adience or a Domestic Subsidiary, such additional documentation
or actions requested under the relevant local law of the jurisdiction of
organization of the Foreign Subsidiary as may be requested), in each case as
may be requested from time to time by the Administrative Agent or the
Required Banks (collectively, together with any security documents entered
into pursuant to Section 8.12, the "Additional Security Documents").
Notwithstanding anything to the contrary contained above in this clause (b),
in no event will Adience or any Domestic Subsidiary be required to pledge a
greater percentage of the voting stock of any Foreign Subsidiary than is
originally provided in the U.S. Pledge Agreement, except to the extent
otherwise required by following Section 8.12. All security interests and
mortgages created as required by this Section 8.11(b) shall be granted
pursuant to documentation in form and substance (and shall be governed by
law) reasonably satisfactory to the Administrative Agent and shall constitute
(after giving effect to any filings or recording required in accordance with
applicable law, which filings and recordings shall be required to be made)
valid and enforceable perfected security interests and mortgages superior to
and prior to the rights of all third Persons and subject to no other Liens
except for Permitted Liens. The Additional Security Documents or instruments
related thereto shall have been duly recorded or filed in such manner and in
such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Security Documents and all taxes, fees and other
charges payable in connection therewith shall have been paid in full by the
Credit Agreement Parties or their respective Subsidiaries.
(c) Holdings will, and will cause each of its Subsidiaries
to, at the expense of Holdings and its Subsidiaries, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time
such vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys, reports and other assurances or
instruments and take such further steps relating to the collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require.
Furthermore, Holdings and each of the Borrowers will cause to be delivered to
the Collateral Agent such opinions of counsel, title insurance and other
related documents as may be reasonably requested by the Administrative Agent
to assure themselves that this Section 8.11 has been complied with.
(d) Holdings and each of the Borrowers agree that each action
required above by this Section 8.11 shall be completed within 30 days (or
such longer period as may be required under local law) after such action is
either requested to be taken by the Administrative Agent or the Required
Banks or required to be taken by Holdings and its Subsidiaries pursuant to
the terms of this Section 8.11.
(e) In the event that the Administrative Agent or the
Required Banks at any time after the Restatement Effective Date determine in
their sole discretion (whether as a result of a position taken by an
applicable bank regulatory agency or official, or otherwise) that a real
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estate appraisal satisfying the requirements set forth in 123 C.F.RA., Part
34-Subpart C, or any successor or similar statute, rule, regulation,
guideline or order (any such appraisal a "Required Appraisal") are or were
required to be obtained, or should be obtained, in connection with the
Mortgaged Property, then, within 90 days after receiving written notice
thereof from the Administrative Agent or the Required Banks, as the case may
be, Adience shall cause such Required Appraisal to be delivered, at the
expense of Adience, to the Banks which Required Appraisal, and the respective
appraiser, shall be reasonably satisfactory to the Administrative Agent.
8.12 Foreign Subsidiaries Security. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices
or other official pronouncements issued or promulgated thereunder, Proskauer
Rose LLP or such other counsel for Adience as may be reasonably acceptable to
the Administrative Agent does not within 30 days after a request from the
Administrative Agent or the Required Banks deliver evidence, in form and
substance mutually satisfactory to the Administrative Agent and Adience, with
respect to any Foreign Subsidiary of Adience which has not already had all of
its stock pledged pursuant to the U.S. Pledge Agreement that (i) a pledge of
66-2/3% or more of the total combined voting power of all classes of capital
stock of such Foreign Subsidiary entitled to vote, (ii) the entering into by
such Foreign Subsidiary of a security agreement in substantially the form of
the U.S. Security Agreement and (iii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the U.S. Subsidiary
Guaranty, in any such case would cause the undistributed earnings of such
Foreign Subsidiary as determined for Federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States
parent for Federal income tax purposes, then in the case of a failure to
deliver the evidence described in clause (i) above, that portion of such
Foreign Subsidiary's outstanding capital stock so issued by such Foreign
Subsidiary, in each case not theretofore pledged pursuant to the U.S. Pledge
Agreement shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the U.S. Pledge Agreement (or another pledge
agreement in substantially similar form, if needed), and in the case of a
failure to deliver the evidence described in clause (ii) above, such Foreign
Subsidiary will execute and deliver the U.S. Security Agreement (or another
security agreement in substantially similar form, if needed), granting the
Secured Creditors a security interest in all of such Foreign Subsidiary's
assets and securing the Obligations of all Borrowers under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement and, in the event that the respective Foreign Subsidiary shall have
executed and delivered a Guaranty, the obligations of such Foreign Subsidiary
thereunder, and in the case of a failure to deliver the evidence described in
clause (iii) above, such Foreign Subsidiary will execute and deliver the U.S.
Subsidiary Guaranty (or another guaranty in substantially similar form, if
needed), guaranteeing the Obligations of all Borrowers under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement, in each case to the extent that the entering into of the
respective security documents or guaranty is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 8.12 to be in form and substance reasonably satisfactory to the
Administrative Agent.
8.13 Maintenance of Corporate Separateness. Each Credit
Agreement Party will, and will cause each of its Subsidiaries to, satisfy
customary corporate formalities, including the holding of regular board of
directors' and shareholders' meetings or action by directors or shareholders
without a meeting and the maintenance of corporate offices and records. The
Credit
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Agreement Parties shall take all actions as shall be required so that, at all
times, at least (x) one director of Holdings is not also a director of any
Borrower and (y) at least one director of the Borrower is not also a director
of Holdings. No Borrower nor any of its respective Subsidiaries shall make
any payment to a creditor of any of Holdings, Alpine or any Subsidiary of
Alpine (other than Adience and its Subsidiaries) in respect of any liability
of any such Person, and no bank account of any of Holdings, Alpine or any
Subsidiary of Alpine (other than Adience and its Subsidiaries) shall be
commingled with any bank account of Holdings, Alpine or any Subsidiary of
Alpine (other than Adience and its Subsidiaries). In dealing with their
respective creditors, none of Holdings, Alpine or any Subsidiary of Alpine
shall act in a manner which would cause its creditors to believe that any
such Person was not a separate corporate entity from the other such Persons.
Finally, no Credit Agreement Party nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which could result in the
corporate existence of Adience or any of its Subsidiaries being ignored, or
in the assets and liabilities of Adience or any of its respective
Subsidiaries being substantively consolidated with those of any of Holdings,
Alpine or any Subsidiary of Alpine (other than Adience and its Subsidiaries)
in a bankruptcy, reorganization or other insolvency proceeding.
8.14 Ownership of Certain Subsidiaries. Notwithstanding
anything to the contrary contained elsewhere in this Agreement, the Credit
Agreement Parties shall take all action necessary so that at all times (i)
Holdings directly owns 100% of the capital stock of Adience, (ii) Adience
directly owns 100% of the capital stock of Newco (at least 45.35% of which
capital stock shall at all times be non-voting capital stock owned by
Adience, with the remaining equity interests being voting stock owned by
Adience, and with 100% of said non-voting stock, and 65% of such voting
stock, being at all times pledged by Adience pursuant to the U.S. Pledge
Agreement), and (iii) Newco directly owns 100% of the capital stock of
▇▇▇▇▇▇▇▇, all of which capital stock shall be pledged pursuant to the U.K.
Security Documents.
8.15 Acquisition Documents. Holdings will, and will cause
each of its Subsidiaries to, perform in all material respects all of its
obligations under the Acquisition Documents by which it is bound, and to
procure the compliance by the other parties to the Acquisition Documents of
their obligations under the Acquisition Documents.
8.16 Permitted Acquisitions. Subject to the provisions of
this Section 8.16, Section 9.02(ii) and the requirements contained in the
definition of Permitted Acquisition, Adience and its Wholly-Owned
Subsidiaries may from time to time after the Initial Borrowing Date effect
Permitted Acquisitions, so long as (i) Adience shall have given the
Administrative Agent and the Banks at least 10 Business Days' prior written
notice of any Permitted Acquisition, (ii) based on calculations made by
Adience on a Pro Forma Basis after giving effect to the respective Permitted
Acquisition and any Indebtedness (including without limitation Acquired
Indebtedness, Permitted Acquisition Subordinated Indebtedness and any
Revolving Loans) incurred, issued or assumed in connection with the
respective Permitted Acquisition or to finance same, no Default or Event of
Default will exist under, or would have existed during the periods covered
by, the financial covenants contained in Sections 9.08 through 9.11,
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inclusive, of this Agreement, (iii) based on good faith projections prepared
by Adience for the period from the date of the consummation of the Permitted
Acquisition to the date which is one year thereafter, the level of financial
performance measured by the covenants set forth in Sections 9.08 through 9.11
inclusive shall be better than or equal to such level as would be required to
provide that no Default or Event of Default would exist under the financial
covenants contained in Sections 9.08 through 9.11, inclusive, of this
Agreement as compliance with such covenants would be required through the
date which is one year from the date of the consummation of the respective
Permitted Acquisition, (iv) Adience shall certify that the proposed Permitted
Acquisition could not reasonably be expected to result in materially
increased tax (excluding income and similar taxes as a result of increased
earnings which may result from the respective Permitted Acquisition), ERISA
or environmental liabilities with respect to Holdings or any of its
Subsidiaries, it being understood that any determination of whether the
proposed Permitted Acquisition could reasonably be expected to result in such
materially increased tax, ERISA or environmental liabilities shall take into
account, inter alia, (x) any available indemnities and (y) the timing and
likelihood of payment thereunder and (v) Adience shall have delivered to the
Administrative Agent an officer's certificate executed by an Authorized
Representative of the Borrowers, certifying (A) to the best of his knowledge,
compliance with the requirements of preceding clauses (i), (ii) and (iii) and
containing the calculations required by the preceding clauses (ii) and (iii)
and (B) compliance with the requirements of Section 9.02(ii).
SECTION 9. Negative Covenants. Holdings and each of the
Borrowers hereby covenant and agree that on and after the Restatement
Effective Date and until the Total Commitments and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other Obligations incurred hereunder and thereunder, are paid in
full:
9.01 Liens. No Credit Agreement Party will, nor will any
Credit Agreement Party permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon or with respect to any property or
assets (real or personal, tangible or intangible) of such Credit Agreement
Party or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including
sales of accounts receivable with recourse to Holdings or any of its
Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien
under any similar recording or notice statute; provided that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, assumption
or existence of the following (Liens described below are herein referred to
as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or
governmental charges or levies not yet due and payable or
Liens for taxes, assessments or governmental charges or levies
being contested in good faith and by appropriate proceedings
for which adequate reserves have been established in
accordance with generally accepted accounting principles;
(ii) Liens in respect of property or assets of
Adience or any of its Subsidiaries imposed by law, which were
incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers',
warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and
(x) which do not in the aggregate materially detract from the
value of the Adience's or such Subsidiary's property or assets
taken as a whole or materially impair the use thereof
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in the operation of the business of Adience or such Subsidiary
or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Restatement
Effective Date which are listed, and the property subject
thereto described, in Schedule VII, but only to the respective
date, if any, set forth in such Schedule VII for the removal,
replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set
forth on Schedule VII, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such
Liens does not increase from that amount outstanding at the
time of any such renewal, replacement or extension and (y) any
such renewal, replacement or extension does not encumber any
additional assets or properties of Holdings or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases, sublicenses or subleases
granted to other Persons not materially interfering with the
conduct of the business of Adience and its Subsidiaries taken
as a whole;
(vii) Liens upon assets of Adience or its
Subsidiaries subject to Capitalized Lease Obligations to the
extent such Capitalized Lease Obligations are permitted by
Section 9.04(iv), provided that (x) such Liens only serve to
secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (y) the Lien encumbering the
asset giving rise to the Capitalized Lease Obligation does not
encumber any other asset of Adience or any Subsidiary of
Adience;
(viii) Liens placed upon equipment or
machinery used in the ordinary course of business of Adience
or any of its Subsidiaries at the time of acquisition thereof
by Adience or any such Subsidiary or within 90 days thereafter
to secure Indebtedness incurred to pay all or a portion of the
purchase price thereof or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of any
such equipment or machinery or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount, provided that (x) the aggregate outstanding principal
amount of all Indebtedness secured by Liens permitted by this
clause (viii) shall not at any time exceed $6,500,000 and (y)
in all events, the Lien encumbering the equipment or machinery
so acquired does not encumber any other asset of Adience or
such Subsidiary;
(ix) easements, rights-of-way, restrictions,
encroachments and other similar charges or encumbrances, and
minor title deficiencies, in each case not securing
Indebtedness and not materially interfering with the conduct
of the business of Adience or any of its Subsidiaries;
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(x) Liens arising from precautionary UCC
financing statement filings regarding operating leases entered
into by Adience or any of its Subsidiaries in the ordinary
course of business;
(xi) Liens arising out of the existence of
judgments, decrees or awards not constituting an Event of
Default under Section 10.09, provided that no cash or property
is deposited or delivered to secure the respective judgment or
award (or any appeal bond in respect thereof, except as
permitted by following clause (xiii));
(xii) statutory and common law landlords'
liens under leases to which Adience or any of its Subsidiaries
is a party;
(xiii) Liens (other than any Lien imposed by
ERISA) (x) incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security or
(y) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs
and appeal bonds, statutory bonds, bids, leases, government
contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) and (z) deposits made in
the ordinary course of business to secure liability for
premiums to insurance carriers, provided that the aggregate
amount of deposits at any time pursuant to clauses (y) and (z)
shall not exceed $12,500,000 in the aggregate;
(xiv) the Floating Rate Loans and other
obligations pursuant to the Floating Rate Loan Documents, as
well as any obligations pursuant to Interest Rate Protection
Agreements entered into by Holdings with respect to the
Indebtedness evidenced by the Floating Rate Loans, may be
secured by the capital stock of Adience owned by Holdings (and
proceeds thereof);
(xv) Liens securing Acquired Indebtedness
incurred in accordance with Section 9.04(x) provided that (A)
such Liens secured such Acquired Indebtedness at the time of
and prior to the incurrence of such Acquired Indebtedness by
Adience or a Subsidiary of Adience and were not granted in
connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by Adience or a Subsidiary of Adience
and (B) such Liens do not extend to or cover any property or
assets of Adience or of any of its Subsidiaries other than the
property or assets that secured the Acquired Indebtedness
prior to the time such indebtedness became Acquired
Indebtedness of Adience or a Subsidiary of Adience and are no
more favorable to the lienholders than those securing the
Acquired Indebtedness prior to the incurrence of such Acquired
Indebtedness by Adience or a Subsidiary of Adience;
(xvi) additional Liens, so long as neither
the fair market value of all assets subject thereto, nor the
aggregate amount of obligations secured thereby, exceeds
$1,250,000 in the aggregate at any time outstanding; and
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(xvii) Liens placed upon any of the assets
of a Canadian Subsidiary of Adience to secure any Canadian
Subsidiary Working Capital Indebtedness incurred by such
Canadian Subsidiary as permitted by Section 9.04(xiii).
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
No Credit Agreement Party will, nor will any Credit Agreement Party permit
any of its Subsidiaries to, and will not permit any of its Subsidiaries to,
wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its
property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions)
any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person, except that:
(i) Capital Expenditures by Adience and its
Subsidiaries shall be permitted to the extent not in violation
of Section 9.07(a), (b) and (c)(i);
(ii) the Borrowers and Adience and its
Wholly-Owned Subsidiaries shall be permitted to make Permitted
Acquisitions so long as (A) such Permitted Acquisitions are
effected in accordance with the requirements of Section 8.16,
(B) after giving effect to any Permitted Acquisition, the
aggregate amount paid (including for the purpose of this
clause (ii) all cash consideration and the fair market value
of any non-cash consideration, but excluding any Indebtedness
(and any cash proceeds thereof paid as consideration) issued,
incurred or assumed in connection with such Permitted
Acquisition, but only if outstanding pursuant to clauses (x)
and/or (xi) of Section 9.04) by Adience and its Subsidiaries
in connection with such Permitted Acquisition shall not exceed
the Permitted Acquisition Amount at such time (after giving
effect to all prior and contemporaneous adjustments thereto,
except as a result of such Permitted Acquisition); and (B)
with respect to each Permitted Acquisition, no Default or
Event of Default is in existence at the time of the
consummation of such Permitted Acquisition or would exist
after giving effect thereto;
(iii) Investments may be made to the extent
permitted by Section 9.05;
(iv) each of Adience and its Subsidiaries may
lease (as lessee) real or personal property in the ordinary
course of business (so long as any such lease does not create
a Capitalized Lease Obligation except to the extent permitted
by Section 9.04);
(v) each of Adience and its Subsidiaries may
make sales of inventory and services in the ordinary course of
business;
(vi) each of Adience and its Subsidiaries may
sell equipment and other assets, to the extent not otherwise
permitted under any other clause of this Section 9.02, at the
fair market value thereof (as determined in good faith by
management of Adience), provided that the proceeds thereof (x)
shall consist of at least 80% in cash and (y) do not exceed
$5,000,000 in the aggregate for all sales pursuant to this
clause (vi) in any fiscal year;
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(vii) Adience and its Subsidiaries may sell
the Designated Assets at fair market value, provided that the
proceeds thereof (x) shall consist of at least 80% in cash and
(y) shall be used to make mandatory repayments pursuant to
Section 4.02(e) in accordance with the terms thereof;
(viii) Adience and its Subsidiaries may, in
the ordinary course of business, license, as licensor or
licensee, patents, trademarks, copyrights and know-how to
third Persons and to one another, so long as any such license
by Adience or its Subsidiaries in its capacity as licensor is
permitted to be assigned pursuant to the Security Documents
(to the extent that a security interest in such patents,
trademarks, copyrights and know-how is granted thereunder) and
does not otherwise prohibit the granting of a Lien by Adience
or any of its Subsidiaries pursuant to the Security Documents
in the intellectual property covered by such license;
(ix) Adience and its Subsidiaries may from time
to time, in the ordinary course of business dispose of
obsolete, worn-out or outmoded equipment, so long as the
respective such sales are for fair market value (as determined
by Adience) and the proceeds thereof are used within one year
after the date of the respective such sale to purchase
replacement equipment; provided that if for any reason, and to
the extent, any Net Sale Proceeds are not so utilized on or
before the first anniversary of the date of the respective
such sale, then on such date any Net Sale Proceeds not so used
shall be applied as required by Section 4.02(e); and
(x) the Acquisition shall be permitted to be
made on the Restatement Effective Date.
To the extent the Required Banks waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02, in each case so long as the respective sale
is to a Person other than a Credit Agreement Party or any of its
Subsidiaries, such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and the Administrative Agent and the
Collateral Agent shall be authorized to take any actions deemed appropriate
in order to effect the foregoing.
9.03 Restricted Payments. No Credit Agreement Party will,
nor will any Credit Agreement Party permit any of its Subsidiaries to,
authorize, declare, pay or make any Restricted Payments, except that
(i) any Subsidiary of Adience (x) may pay cash
Distributions to Adience or any Wholly-Owned Subsidiary of
Adience and (y) if such Subsidiary is not a Wholly-Owned
Subsidiary, may pay cash Distributions to its shareholders
generally so long as Adience or its respective Subsidiary
which owns the equity interest or interests in the Subsidiary
paying such Dividends receives at least its proportionate
share thereof (based upon its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking
into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary);
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(ii) Adience may pay cash Distributions to
Holdings in the amounts and at the times that (a) any cash
interest payments, increased costs or other amounts (other
than principal payments), are due on the Floating Rate Loans
or under the Floating Rate Loan Credit Agreement or (b) any
cash payments are owing with respect to Interest Rate
Protection Agreements maintained as contemplated by Section
6.14 of the Floating Rate Loan Credit Agreement as originally
in effect, in each case, so long as (x) no Default or Event of
Default then exists pursuant to Section 10.01, (y) no Default
or Event of Default then exists with respect to any Credit
Agreement Party pursuant to Section 10.05 and (z) Holdings
immediately uses such cash Distributions to make such interest
or other payments; provided that (in addition to the foregoing
restrictions) at any time when any Event of Default is then in
existence (other than an Event of Default specified in
preceding clause (x) or (y)), if the Administrative Agent or
the Required Banks have given notice to Adience that payments
will not be permitted to be made pursuant to this Section
9.03(ii), then for a period (each a "Payment Blockage Period")
of 180 days after the giving of such notice (or such shorter
period ending on the first date thereafter when (i) such
notice shall have been rescinded by the Administrative Agent
or the Required Banks, as the case may be, (ii) no Event of
Default remains in existence or (iii) the immediately
succeeding proviso causes the termination of the respective
Payment Blockage Period) no Distributions may be made pursuant
to this clause (ii), provided further, that in no event shall
Payment Blockage Periods pursuant to the immediately preceding
proviso actually extend for more than 180 days in any period
of 365 consecutive days;
(iii) payments may be made by Adience and
its Subsidiaries (x) to Alpine (or to Holdings, which in turn
makes the respective payment to Alpine) for any taxable year
of Adience in which it joins in filing a consolidated federal
income tax return with Alpine or (y) to Holdings for any
taxable year of Adience in which it joins in filing a
consolidated federal income tax return with Holdings, but not
Alpine, in either case from time to time in amounts equal to
the Permitted Tax Payments owing at such time, so long as
Alpine or Holdings, as the case may be, makes all payments in
respect of the tax obligations of the type described in the
definition of Permitted Tax Payments required to be made by
the affiliated group of which such Person is the parent;
provided further, that any refund attributable to Permitted
Tax Payments (or similar such payments made prior to the
Initial Borrowing Date by Adience and its Subsidiaries)
actually received by either Alpine or Holdings shall be
promptly (and in any event within two Business Days) returned
to Adience (and if not so returned, shall reduce the amount of
payments otherwise permitted to be made in the future by
Adience and its Subsidiaries pursuant to this clause (iii));
(iv) payments may be made by Adience and its
Subsidiaries to Holdings to the extent necessary to permit
Holdings to pay its reasonable professional fees and expenses
in connection with complying with its reporting obligations
and obligations to prepare and distribute business records,
financial statements or other documents to any lender or other
persons having business dealings with Holdings, or in
connection with other corporate overhead items, provided that
the aggregate payments pursuant to this clause (iv) shall not
exceed $300,000 in any fiscal year of Holdings; and
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(v) payments may be made by Adience and its
Subsidiaries to Alpine (or, without duplication, to Holdings
so long as Holdings immediately pays such amounts to Alpine)
(i) for (and in amounts equal to) direct charges incurred by
Alpine and attributable to Holdings and its Subsidiaries plus
(but without duplication) Holdings' (and its Subsidiaries')
allocable share of insurance costs for insurance maintained by
Alpine which benefits Holdings and its Subsidiaries (with all
allocations pursuant to preceding clause (i) to be determined
by Alpine in good faith and on a fair and reasonable basis)
and (ii) so long as no Default under Section 10.01 or 10.05
and no Event of Default exists at the time of any payment
thereof, additional payments may be made to Alpine (on a
quarterly basis in equal installments) in any fiscal year of
Holdings pursuant to this clause (v) in an amount not to
exceed the Alpine Permitted Amount for such fiscal year.
Notwithstanding anything to the contrary
contained in this Agreement, neither Holdings nor any of its
Subsidiaries may authorize, declare, pay or make any
Restricted Payments with respect to the Put Obligations; it
being understood and agreed that (x) Adience Letters of Credit
may be issued in an aggregate amount not to exceed $15,000,000
in order to support the Put Obligations (such Adience Letters
of Credit, herein referred to as "Put Letters of Credit") and
(y) Alpine may satisfy the Put Obligations pursuant to, and in
accordance with, the terms of the Alpine Put Guaranty.
9.04 Indebtedness. No Credit Agreement Party will, nor will
any Credit Agreement Party permit any of its Subsidiaries to, contract,
create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this
Agreement and the other Credit Documents;
(ii) Indebtedness with respect to performance
bonds, surety bonds, appeal bonds or customs bonds required in
the ordinary course of business or in connection with the
enforcement of rights or claims of Adience or any of its
Subsidiaries or in connection with judgments that do not
result in a Default or an Event of Default, provided that the
aggregate outstanding amount of all such performance bonds,
surety bonds, appeal bonds and customs bonds permitted by this
clause (ii) shall not at any time exceed $12,500,000;
(iii) Indebtedness under Interest Rate
Protection Agreements entered into to protect Holdings or the
Borrowers against fluctuations in interest rates in respect of
Floating Rate Loans or the Obligations, as the case may be, on
terms reasonably satisfactory to the Administrative Agent;
(iv) Indebtedness evidenced by Capitalized
Lease Obligations to the extent permitted pursuant to Section
9.07, provided that in no event shall the aggregate principal
amount of Capitalized Lease Obligations permitted by this
clause (iv) exceed $5,000,000 at any time outstanding;
(v) Indebtedness subject to Liens permitted
under Section 9.01(viii);
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(vi) Existing Indebtedness outstanding on the
Restatement Effective Date and listed on Schedule V, without
giving effect to any subsequent extension, renewal or
refinancing thereof, except that with respect to the Existing
Indebtedness specifically identified on Schedule V as being
permitted to be refinanced, such Existing Indebtedness may be
extended, renewed or refinanced (and successively extended,
renewed or refinanced) so long as (x) the principal amount
thereof is not increased and (y) no additional security is
furnished in connection therewith;
(vii) Indebtedness of Holdings incurred
under the Floating Rate Loans in an aggregate principal amount
not to exceed $60,000,000 less any repayments or prepayments
of principal thereof actually made;
(viii) Indebtedness constituting
intercompany loans and advances to the extent permitted by
Section 9.05(iv) and/or (ix);
(ix) Indebtedness under Other Hedging
Agreements providing protection against fluctuations in
currency values in connection with Adience's or any of its
Subsidiaries' operations so long as management of Adience or
such Subsidiary, as the case may be, has determined that the
entering into of such Other Hedging Agreements are bona fide
hedging activities and are not speculative in nature;
(x) Acquired Indebtedness may be incurred or
assumed in connection with Permitted Acquisitions, so long as
the aggregate principal amount of all Acquired Indebtedness
incurred or assumed after the Restatement Effective Date does
not exceed $3,000,000;
(xi) to finance one or more Permitted
Acquisitions, Adience may issue (directly as consideration, or
for cash proceeds which are used as consideration, for such
Permitted Acquisition) unsecured subordinated indebtedness, so
long as (x) all terms thereof (including the interest rate
applicable thereto, the subordination provisions thereof, the
maturity and the required repayments thereof and the covenants
and defaults applicable thereto) are reasonably satisfactory
to the Administrative Agent and Required Banks and (y) the
aggregate principal amount of all such Indebtedness
("Permitted Acquisition Subordinated Indebtedness") issued
after the Restatement Effective Date does not exceed
$6,250,000;
(xii) in addition to Indebtedness otherwise
permitted above, Adience and its Subsidiaries may from time to
time issue or incur Indebtedness (but not in connection with,
or to finance, Permitted Acquisitions) so long as the
aggregate principal amount of all Indebtedness at any time
outstanding pursuant to this clause (xii) does not exceed
$1,500,000;
(xiii) Indebtedness of Canadian Subsidiaries
of Adience the proceeds of which Indebtedness are to be used
for such Canadian Subsidiaries' working capital purposes,
provided that the aggregate principal amount of all such
Indebtedness outstanding at any time shall not exceed
$6,000,000 (the "Canadian Subsidiary Working Capital
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Indebtedness"), and provided further, that all terms and
conditions of such Indebtedness shall be reasonably
satisfactory to the Administrative Agent and the Required
Banks;
(xiv) Indebtedness incurred pursuant to the
$2.8M Deferred Interest Bond in an aggregate principal amount
not to exceed $2,800,000; and
(xv) Indebtedness incurred pursuant to the AMI
Promissory Notes in an aggregate principal amount not to
exceed $1,200,000.
9.05 Advances, Investments and Loans. No Credit Agreement
Party will, nor will any Credit Agreement Party permit any of its
Subsidiaries to, directly or indirectly, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash, Cash Equivalents
or Foreign Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) Adience and its Subsidiaries may acquire
and hold accounts receivables, trade receivables, notes
receivables, prepaid expenses and similar items owing to any
of them, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with
customary terms, and Adience and its Subsidiaries may own
Investments received in connection with the bankruptcy,
work-out, reorganization, liquidation or similar proceeding of
suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(ii) Adience and its Subsidiaries may acquire
and hold cash and Cash Equivalents and any Foreign Subsidiary
of Adience may acquire and hold Foreign Cash Equivalents;
(iii) Adience and its Subsidiaries may
receive non-cash consideration in connection with any asset
sale permitted by Section 9.02(vi) or (vii) but only to the
extent set forth in Section 9.02(vi) or (vii), as the case may
be;
(iv) Adience and its Subsidiaries may hold the
Investments held by them on the Restatement Effective Date and
described on Schedule VIII without giving effect to any
additions thereto or replacements thereof;
(v) Adience and its Subsidiaries may make
loans and advances in the ordinary course of business to their
respective employees so long as the aggregate principal amount
thereof at any time outstanding (determined without regard to
any write-downs or write-offs of such loans and advances)
shall not exceed $750,000;
(vi) the Borrowers may enter into Interest Rate
Protection Agreements to the extent permitted by Section
9.04(iii);
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(vii) Adience and its Subsidiaries may
enter into Other Hedging Agreements to the extent permitted by
Section 9.04(ix);
(viii) Adience and its Subsidiaries shall be
permitted to make Capital Expenditures to the extend permitted
by Section 9.07;
(ix) after the Restatement Effective Date, (a)
Adience and the U.S. Subsidiary Guarantors may make
intercompany loans (it being understood and agreed that
intercompany receivables and/or payables which arise as a
result of ordinary course activities and are otherwise
permitted by Section 9.06 shall not be deemed to be
intercompany loans) to each other, and any U.S. Subsidiary
Guarantor may make intercompany loans to any other U.S.
Subsidiary Guarantor, (b) the U.K. Borrowers and each Foreign
Subsidiary Guarantor may make intercompany loans to each
other, (c) at any time that Canadian Subsidiary Working
Capital Indebtedness is not provided by a third party, Adience
may make intercompany loans to Canadian Subsidiaries of
Adience in an aggregate principal amount not to exceed
$6,000,000, (d) Alpine may make intercompany loans to Adience
in an aggregate principal amount not to exceed $1,000,000 and
(e) in addition to the loans permitted pursuant to preceding
clauses (a), (b), (c) and (d), intercompany loans may be made
between Adience and its Subsidiaries, or between Subsidiaries
of Adience; provided that the aggregate principal amount of
intercompany loans at any time outstanding (determined without
regard to any write-downs or write-offs thereof) pursuant to
this clause (e) at no time outstanding shall exceed
$6,250,000; provided further, that if any loans made pursuant
to this clause (ix) are evidenced by a promissory note, the
respective promissory note shall be pledged to the extent such
pledge is required by the terms of any Security Document;
(x) Adience and its Wholly-Owned Subsidiaries
may establish Subsidiaries to the extent permitted by Section
9.16; and
(xi) Adience and its Subsidiaries may make
additional Investments which may, but shall not be required
to, be made in joint ventures or non Wholly-Owned Subsidiaries
so long as the amount of the Investment then being made
(taking the amount of any cash investment and the fair market
value of any non-cash investment) pursuant to this clause (xi)
shall not exceed the Permitted Investment Amount as then in
effect.
9.06 Transactions with Affiliates. No Credit Agreement Party
will, nor will any Credit Agreement Party permit any of its Subsidiaries to,
enter into any transaction or series of related transactions, with Alpine or
any other Affiliate of Holdings or Alpine (excluding Adience and its
Subsidiaries), other than in the ordinary course of business and on terms and
conditions substantially as favorable to Holdings or such Subsidiary as would
reasonably be obtained by Holdings or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that the following in any event shall be permitted: (i) the
Transaction, (ii) Dividends may be paid to the extent provided in Section
9.03, (iii) loans may be made and other transactions may be entered into by
Adience and its Subsidiaries to the extent permitted by Sections 9.04 and
9.05, (iv) customary fees may be paid to non-officer directors of Holdings,
(v) Holdings and its Subsidiaries may enter into employment arrangements with
their respective
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officers in the ordinary course of business and (vi) transactions between
Adience and its Wholly-Owned Subsidiaries.
In addition to the applicable requirements provided above, any
transactions (other than as described in clauses (i) through (vi) above)
between and among Holdings and/or its Subsidiaries on the one hand, and any
of their respective Affiliates on the other hand, between and among the
aforementioned parties with a value in excess of (A) $1,000,000 shall only be
permitted if a majority of the disinterested directors of Alpine approve the
transaction as meeting the standards set forth above in this Section 9.06 and
(B) $2,500,000 shall only be permitted if the parties thereto provide a
fairness opinion from a Person, and in form and substance, satisfactory to
the Administrative Agent.
9.07 Capital Expenditures. (a) No Credit Agreement Party
will, nor will any Credit Agreement Party permit any of its Subsidiaries to,
make any Capital Expenditures, except that Adience and its Subsidiaries may
make Capital Expenditures so long as the aggregate amount of such Capital
Expenditures does not exceed (x) for the fiscal year of Holdings ending in
April, 1998, $15,000,000 and (y) in any fiscal year ended thereafter,
$12,000,000; provided that if the Leverage Ratio as determined from the last
day of any fiscal year of Holdings ending after the Restatement Effective
Date (calculating the numerator as of such date and the denominator for the
fiscal year then ended) is less than 3.25:1, the amount set forth in clause
(y) for the immediately succeeding fiscal year shall be increased by
$2,000,000.
(b) Notwithstanding anything to the contrary contained in
clause (a) above, to the extent that the amount of Capital Expenditures made
by Adience and its Subsidiaries in any fiscal year set forth in clause (a)
above is less than the amount permitted to be made in such fiscal year
(giving effect to the proviso thereto, but without giving effect to any
additional amount available as a result of this clause (b) or clause (c)
below), the amount of such difference, but not in excess of 50% of the amount
originally permitted to be spent in said fiscal year pursuant to said clause
(a) (giving effect to the proviso thereto if applicable), may be carried
forward and used to make Capital Expenditures in the immediately succeeding
fiscal year of Adience; provided that during the fiscal year of Holdings
ending in April, 1999, no more than $2,000,000 may be carried forward and
used to make Capital Expenditures pursuant to this clause (b). Any amount
carried forward into a fiscal year pursuant to this clause (b) shall, if not
used to make Capital Expenditures in such fiscal year, terminate at the end
thereof (and shall not be carried forward to a subsequent fiscal year).
(c) In addition to the Capital Expenditures permitted to be
made pursuant to preceding clauses (a) and (b) of this Section 9.07, (i)
Adience and its Subsidiaries may make additional Capital Expenditures with
the amount of insurance proceeds received by Adience or any of its
Subsidiaries from any Recovery Event so long as such proceeds are used to
replace or restore any properties or assets in respect of which such proceeds
were paid within the time periods set forth in Section 4.02(g) (and to the
extent such proceeds are not required to be applied pursuant to Section
4.02(g)) and (ii) Permitted Acquisitions shall be permitted to be made in
accordance with Sections 9.02 and 8.16. To the extent Capital Expenditures
are made as permitted by this clause (c), same shall not count as Capital
Expenditures for purposes of determining compliance with clause (a) or (b) of
this Section 9.07.
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9.08 Consolidated Fixed Charge Coverage Ratio. Holdings will
not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
to be less than 1.0:1.0.
9.09 Consolidated Interest Coverage Ratio. The Credit
Agreement Parties will not permit the Consolidated Interest Coverage Ratio
for any Test Period ended on the last day of a fiscal quarter of Holdings set
forth below to be less than the ratio set forth opposite such fiscal quarter
below:
Holdings' Fiscal Quarter
Ending Closest to the Last Day in Ratio
--------------------------------- -----
April, 1998 1.85:1
July, 1998 1.85:1
October, 1998 1.85:1
January, 1999 1.85:1
April, 1999 1.95:1
July, 1999 2.00:1
October, 1999 2.05:1
January, 2000 2.10:1
April, 2000 2.10:1
July, 2000 2.15:1
October, 2000 2.20:1
January, 2001 2.25:1
April, 2001 2.30:1
July, 2001 2.35:1
October, 2001 2.40:1
January, 2002 2.50:1
April, 2002 2.55:1
July, 2002 2.60:1
October, 2002 2.70:1
January, 2003 2.80:1
Thereafter 3.00:1
9.10 Maximum Leverage Ratio. The Credit Agreement Parties
will not permit the Leverage Ratio at any time during a period set forth
below to be greater than the ratio set forth opposite such period below:
Period Ratio
------ -----
Beginning February 1, 1998 and 6.00:1
ending January 31, 1999
Beginning February 1, 1999 and 5.75:1
ending April 30, 1999
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Period Ratio
------ -----
Beginning May 1, 1999 and 5.50:1
ending July 31, 1999
Beginning August 1, 1999 and 5.40:1
ending October 31, 1999
Beginning November 1, 1999 and 5.25:1
ending January 31, 2000
Beginning February 1, 2000 and 5.00:1
ending July 31, 2000
Beginning August 1, 2000 and 4.85:1
ending October 31, 2000
Beginning November 1, 2000 and 4.70:1
ending January 31, 2001
Beginning February 1, 2001 and 4.55:1
ending July 31, 2001
Beginning August 1, 2001 and 4.35:1
ending October 31, 2001
Beginning November 1, 2001 and 4.25:1
ending January 31, 2002
Beginning February 1, 2002 and 4.05:1
ending April 30, 2002
Beginning May 1, 2002 and 3.90:1
ending July 31, 2002
Beginning August 1, 2002 and 3.80:1
ending October 31, 2002
Beginning November 1, 2002 and 3.70:1
ending January 31, 2003
Beginning February 1, 2003 and 3.60:1
ending April 30, 2003
Beginning May 1, 2003 and 3.50:1
ending July 31, 2003
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Period Ratio
------ -----
Beginning August 1, 2003 and 3.40:1
ending October 31, 2003
Beginning November 1, 2003 and 3.30:1
ending January 31, 2004
Beginning February 1, 2004 and 3.20:1
ending April 30, 2004
Beginning May 1, 2004 and 3.10:1
ending July 31, 2004
Thereafter 3.00:1
9.11 Minimum Consolidated EBITDA. The Credit Agreement
Parties will not permit Consolidated EBITDA for any Test Period ended on the
last day of a fiscal quarter of Holdings set forth below to be less than the
respective amount set forth opposite such fiscal quarter below:
Holding Fiscal Quarter Ended
Closest to the Last Day In Amount
---------------------------- ------
April, 1998 $49,000,000
July, 1998 $49,000,000
October, 1998 $49,000,000
January, 1999 $50,000,000
April, 1999 $52,000,000
July, 1999 $55,000,000
October, 1999 $57,000,000
January, 2000 $58,000,000
April, 2000 $61,000,000
July, 2000 $62,100,000
October, 2000 $63,000,000
January, 2001 $64,000,000
April, 2001 $65,200,000
July, 2001 $66,400,000
October, 2001 $67,600,000
January, 2002 $68,900,000
April, 2002 $69,900,000
July, 2002 $70,800,000
October, 2002 $71,800,000
January, 2003 $72,800,000
Thereafter $75,000,000
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9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; etc. No Credit Agreement Party will, nor will any
Credit Agreement Party permit any of its Subsidiaries to, (i) make (or give
any notice in respect of) any voluntary or optional payment or prepayment on
or redemption or acquisition for value of, or make any prepayment or
redemption as a result of any asset sale, change of control or similar event
of (including, in each case, without limitation, by way of depositing with
the trustee with respect thereto or any other Person, money or securities
before due for the purpose of paying when due) any Floating Rate Loan, (ii)
amend or modify, or permit the amendment or modification of, any provision of
any Floating Rate Loan Document, other than any amendments or modifications
which do not in any way adversely affect the interests of the Banks, (iii)
amend, modify or change its certificate of incorporation (including, without
limitation, by the filing or modification of any certificate of designation)
or by-laws or any agreement entered into by it, with respect to its capital
stock (including any Shareholders' Agreement), or enter into any new
agreement with respect to its capital stock unless such amendment,
modification, change or other action contemplated by this clause (iv) could
not be adverse to the interests of the Banks under the Credit Documents in
any material respect or (v) enter into any Tax Sharing Agreement, tax
allocation agreement or similar agreement.
9.13 Limitation on Certain Restrictions on Subsidiaries. The
Credit Parties will not permit any of Adience's Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a)
pay dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by Adience or any
Subsidiary of Adience, or pay any Indebtedness owed to Adience or any
Subsidiary of Adience, (b) make loans or advances to Adience or any
Subsidiary of Adience or (c) transfer any of its properties or assets to
Adience or any Subsidiary of Adience, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of Adience or any Subsidiary of Adience, (iv) customary provisions
restricting assignment of any licensing agreement entered into by Adience or
any Subsidiary of Adience in the ordinary course of business, (v) the
Floating Rate Loan Documents (so long as the restrictions contained therein
are not more restrictive than those contained in such documents as in effect
as of the Restatement Effective Date), (vi) restrictions on the transfer of
any asset subject to a Lien permitted by Sections 9.01(iii), (vii) and
(viii), and (vii) restrictions existing on the Restatement Effective Date and
specifically described in Schedule X.
9.14 Limitation on Issuance of Capital Stock. (a) Holdings
will not issue (i) any preferred stock or (ii) any redeemable common stock
(except at the sole option of Holdings or such Subsidiary).
(b) The Credit Agreement Parties will not permit any
Subsidiary of Holdings to issue any capital stock (including by way of sales
of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except (i) for transfers and replacements of
then outstanding shares of capital stock, (ii) for stock splits, stock
dividends and similar issuances which do not decrease the percentage
ownership of Holdings or any of its Subsidiaries in any class
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of the capital stock of such Subsidiary, (iii) to qualify directors to the
extent required by applicable law and (iv) issuances to Adience and its
Wholly-Owned Subsidiaries, so long as such issuances in no event reduce the
percentage of the capital stock of the respective issuer (if any) pledged at
such time pursuant to the Security Documents.
9.15 Business. (a) No Credit Agreement Party will, nor will
any Credit Agreement Party permit any of its Subsidiaries to, engage
(directly or indirectly) in any business other than the businesses in which
Holdings and its Subsidiaries are engaged on the Restatement Effective Date
and reasonable extensions thereof or incidental thereto.
(b) Notwithstanding anything to the contrary contained in
this Agreement, Holdings will engage in no business activities and will not
have any significant assets (other than the capital stock of Adience) or
liabilities (other than those liabilities under this Agreement, the Floating
Rate Note Documents and the Acquisition Documents).
9.16 Limitation on Creation of Subsidiaries. (a) Except as
otherwise specifically provided in following clause (b), Holdings will not,
and will not permit any of its Subsidiaries to, establish, create or acquire
after the Restatement Effective Date any Subsidiary; provided that, (a)
Adience and its Wholly-Owned Subsidiaries shall be permitted to establish or
create Wholly-Owned Subsidiaries so long as (i) 100% of the capital stock of
such new Subsidiary that is owned by any Credit Party (or 100% of the
non-voting stock and 65% of the voting stock of any such Foreign Subsidiary
that is owned by Adience or any Domestic Subsidiary of Adience (or 100% of
such voting stock to the extent provided in Section 8.12)) is pledged
pursuant to, and to the extent required by, the U.S. Pledge Agreement or
other relevant Security Document and the certificates representing such
stock, together with stock powers duly executed in blank, are delivered to
the Collateral Agent for the benefit of the Secured Creditors, (ii) such new
Subsidiary (unless an Immaterial Foreign Subsidiary) executes a counterpart
of the U.S. Subsidiary Guaranty or a Foreign Subsidiary Guaranty, as is
appropriate, and, in the case of any Domestic Subsidiary of Adience, the U.S.
Pledge Agreement and the U.S. Security Agreement, and (iii) such new
Subsidiary, to the extent requested by the Administrative Agent or the
Required Banks, takes all actions required pursuant to Section 8.11. In
addition, each new Wholly-Owned Subsidiary shall execute and deliver, or
cause to be executed and delivered, all other relevant documentation of the
type described in Section 5 as such new Subsidiary would have had to deliver
if such new Subsidiary were a Credit Party on the Restatement Effective Date.
Without prejudice to the preceding provisions of this Section 9.16(a), the
Collateral Agent may require that the capital stock of a new Subsidiary be
pledged pursuant to an agreement in a form suitable for enforcement in the
jurisdiction in which the new Subsidiary in incorporated.
(b) In addition to Subsidiaries created or established as
permitted by preceding clause (a), after the Restatement Effective Date,
Adience may establish or acquire (x) non-Wholly-Owned Subsidiaries as a
result of Permitted Acquisitions, but only if the respective non-Wholly-Owned
Subsidiary is a Subsidiary of the Person being acquired pursuant to the
Permitted Acquisition and the requirements of the definition of Permitted
Acquisition contained herein are satisfied and (y) to the extent Investments
are made pursuant to Section 9.05(xi), such investments may be made in, or to
acquire interests in, joint ventures or non-Wholly-Owned Subsidiaries.
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(c) Notwithstanding anything to the contrary contained in
this Agreement, in no event will Holdings permit any equity interests in any
of its non-Wholly-Owned Subsidiaries to be owned by Alpine or any of its
Subsidiaries or Affiliates (other than Adience and its Subsidiaries).
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. Any Borrower shall (i) default in the
payment when due of any principal of any Loan or any Note or (ii) default,
and such default shall continue unremedied for three or more Business Days,
in the payment when due of any interest on any Loan or Note, any Unpaid
Drawing or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or
in any certificate delivered to the Administrative Agent or any Bank pursuant
hereto or thereto shall prove to be untrue in any material respect on the
date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the
due performance or observance by it of any term, covenant or agreement
contained in Section 8.01(g)(i), 8.08, 8.13, 8.14, Section 9 or Section 13.22
or (ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement or any other Credit
Document (other than those set forth in Sections 10.01 and 10.02 and clause
(i) of this Section 10.03) and such default as described in this clause (ii)
shall continue unremedied for a period of 30 days after written notice
thereof to the defaulting party by the Administrative Agent or the Required
Banks; or
10.04 Default Under Other Agreements. (i) Holdings or any of
its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Notes) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y)
default in the observance or performance of any agreement or condition
relating to any Indebtedness (other than the Notes) or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause (determined without regard to whether any notice is required), any
such Indebtedness to become due prior to its stated maturity, or (ii) any
Indebtedness (other than the Notes) of Holdings or any of its Subsidiaries
shall be declared to be (or shall become) due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not be a Default or an Event
of Default under this Section 10.04 unless the aggregate principal amount of
all Indebtedness as described in preceding clauses (i) and (ii) is at least
$3,500,000 (or in the case of currencies other than Dollars, the Dollar
Equivalent thereof); or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the
United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary
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case is commenced against Holdings or any of its Subsidiaries, and the
petition is not controverted within 15 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of Holdings or any of its Subsidiaries, or Holdings or
any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency, receivership, administration or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating
to Holdings or any of its Subsidiaries, or there is commenced against
Holdings or any of its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days, or Holdings or any of its Subsidiaries
is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Holdings or any of its
Subsidiaries suffers any appointment of any custodian, administrator,
administrative receiver or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate action is taken by Holdings or any of
its Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412
of the Code or Section 302 of ERISA or a waiver of such standard or extension
of any amortization period is sought or granted under Section 412 of the Code
or Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably
expected to occur with respect to such Plan within the following 30 days, any
Plan which is subject to Title IV of ERISA, shall have had or is likely to
have a trustee appointed to administer such Plan, any Plan which is subject
to Title IV of ERISA is, shall have been or is likely to be terminated or to
be the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability that exceeds $2,500,000, a contribution required
to be made with respect to a Plan or a Foreign Pension Plan has not been
timely made, Holdings or any Subsidiary of Holdings or any ERISA Affiliate
has incurred or is likely to incur any liability that exceeds $6,000,000 to
or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or
4980 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of
the Code, or Holdings or any Subsidiary of Holdings has incurred or is likely
to incur liabilities pursuant to one or more employee welfare benefit plans
(as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) other than liabilities for such benefits which are less than
$10,500,000, based on the accumulated post-retirement benefit obligation as
calculated by Holdings' actuaries in accordance with Statement of Financial
Accounting Standard No. 106 or any pension plans of Holdings or its
Subsidiaries that are not tax-qualified under Section 401(a) of the Code or
Foreign Pension Plans; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; and (c) such lien, security
interest or liability,
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individually and/or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; or
10.07 Security Documents. At any time after the execution
and delivery thereof, any of the Security Documents (except as expressly
provided by the terms thereof) shall cease to be in full force and effect, or
shall cease to give the Collateral Agent for the benefit of the Secured
Creditors the Liens, rights, powers and privileges purported to be created
thereby (including, without limitation, a perfected security interest in, and
Lien on, all of the Collateral, in favor of the Collateral Agent, superior to
and prior to the rights of all third Persons (except as permitted by Section
9.01), and subject to no other Liens (except as permitted by Section 9.01),
or any Credit Party shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant
to any of the Security Documents and such default shall continue beyond any
grace period specifically applicable thereto pursuant to the terms of such
Security Document; or
10.08 Guaranties. (a) Except in accordance with the express
terms of the respective Guaranty, any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor, or any
Guarantor or Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under the relevant Guaranty, or (b)
any Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to
such Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against Holdings or any Subsidiary of Holdings involving in the
aggregate for Holdings and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30
consecutive days, and the aggregate amount of all such judgments exceeds
$3,500,000 (or in the case of currencies other than Dollars, the Dollar
Equivalent thereof); or
10.10 Change of Control. A Change of Control shall occur; or
10.11 Put Rights. Either (i) Alpine shall default in the due
performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to the Alpine Put Guaranty or (ii) Adience
shall make any payment in respect of the Put Obligations in excess of the
aggregate stated amount of all Put Letters of Credit;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Borrowers, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Bank or the holder of any Note to enforce its
claims against any Credit Party (provided, that, if an Event of Default
specified in Section 10.05 shall occur with respect to any Borrower, the
result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitments terminated, whereupon all Commitments of each Bank shall
forthwith terminate immediately and any
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Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued
interest in respect of all Loans and the Notes and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Credit Party; (iii) terminate
any Letter of Credit which may be terminated in accordance with its terms;
(iv) direct Adience to pay (and Adience agrees that upon receipt of such
notice, or upon the occurrence of an Event of Default specified in Section
10.05 with respect to any Borrower, it will pay) to the Collateral Agent at
the appropriate Payment Office such additional amount of cash, to be held as
security by the Collateral Agent, as is equal to the aggregate Stated Amount
of all Adience Letters of Credit then outstanding; (v) direct ▇▇▇▇▇▇▇▇ to pay
(and ▇▇▇▇▇▇▇▇ agrees that upon receipt of such notice, or upon the occurrence
of an Event of Default specified in Section 10.05 with respect to any
Borrower, it will pay) to the Collateral Agent at the appropriate Payment
Office such additional amount of cash, to be held as security by the
Collateral Agent, as is equal to the aggregate Stated Amount of all ▇▇▇▇▇▇▇▇
Letters of Credit then outstanding; (vi) enforce, as Collateral Agent, all of
the Liens and security interests created pursuant to the Security Documents;
and (vii) apply any cash collateral held pursuant to Section 4.02 to the
repayment of the Obligations of the respective Revolving Loan Borrower.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"A Term Loan Maturity Date" shall mean April 15, 2003.
"Acquired Business" shall mean the businesses and properties
to be acquired pursuant to the Acquisition.
"Acquired Indebtedness" means, with respect to any specified
Person, Indebtedness of any other Person (the "Acquired Person") existing at
the time such Acquired Person becomes a Subsidiary of or merges or
consolidates with such specified Person or any of its Subsidiaries pursuant
to a Permitted Acquisition (and not redeemed, defeased, retired or otherwise
repaid at the time of or upon consummation of such merger or acquisition) or
Indebtedness assumed in connection with the acquisition of assets from such
Acquired Person pursuant to a Permitted Acquisition, but in each case
excluding any Indebtedness incurred or secured by Liens (on additional assets
or otherwise) in connection with, or in anticipation or contemplation of,
such Acquired Person merging or consolidating with, or becoming a Subsidiary
of, such specified Person.
"Acquisition" shall mean (x) the acquisition (as described in
that certain Confidential Information Memorandum, dated January 1998, and
previously delivered to the Banks and consummated as described below) by
Holdings of all of the issued and outstanding capital stock of APHI by way of
the merger of APHI with and into Holdings, with Holdings being the surviving
entity of such merger, and (y) the merger of American Premier Inc., a
Delaware
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corporation and a Wholly-Owned Subsidiary of APHI, with and into Adience,
pursuant to, and in accordance with, the terms of the Acquisition Documents.
"Acquisition Agreement" shall mean the Agreement and Plan of
Merger, dated as of January 18, 1998, among Alpine, Holdings, APHI, Minerals
Trading, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Acquisition Documents" shall mean the Acquisition Agreement
and all other agreements and documents relating to the Acquisition.
"Additional Guaranty" shall have the meaning provided in
Section 8.11.
"Additional Security Documents" shall have the meaning
provided in Section 8.11.
"Adience" shall have the meaning provided in the first
paragraph of this Agreement.
"Adience A Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iv).
"Adience A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(iv).
"Adience A Term Loan" shall have the meaning provided in
Section 1.01(d).
"Adience A Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I directly below
the column entitled "Adience A Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Adience A Term Loan Maturity Date" shall mean April 30, 2003.
"Adience A Term Note" shall have the meaning provided in
Section 1.05(a).
"Adience B Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Adience B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(i).
"Adience B Term Loan" shall have the meaning provided in
Section 1.01(a).
"Adience B Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I directly below
the column entitled "Adience B Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
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"Adience B Term Note" shall have the meaning provided in
Section 1.05(a).
"Adience B-2 Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(v).
"Adience B-2 Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(v).
"Adience B-2 Term Loan" shall have the meaning provided in
Section 1.01(e).
"Adience B-2 Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I directly below
the column entitled "Adience B Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Adience B-2 Term Note" shall have the meaning provided in
Section 1.05(a).
"Adience C Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(vi).
"Adience C Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(vi).
"Adience C Term Loan" shall have the meaning provided in
Section 1.01(f).
"Adience C Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I directly below
the column entitled "Adience C Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Adience C Term Note" shall have the meaning provided in
Section 1.05(a).
"Adience Letter of Credit" shall mean each Letter of Credit
issued for the account of Adience pursuant to Section 2.01.
"Adience Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Adience
Letters of Credit and (ii) the amount of all Unpaid Drawings with respect to
Adience Letters of Credit.
"Adience Term Loan" shall mean and include each Adience A Term
Loan, each Adience B Term Loan, each Adience B-2 Term Loan and each Adience C
Term Loan.
"Adience U.K. Pledge Agreement" shall mean the Charge Over
Shares, dated April 15, 1997, made between Adience and the Administrative
Agent and executed and delivered
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pursuant to Section 5.12 of the Original Credit Agreement, as same may from
time to time be amended, modified or supplemented in accordance with the
terms thereof.
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for
negotiable certificates of deposit with a three-month maturity in the
secondary market as published in the most recent Federal Reserve System
publication entitled "Select Interest Rates," published weekly on Form H.15
as of the date hereof, or if such publication or a substitute containing the
foregoing rate information shall not be published by the Federal Reserve
System for any week, the weekly average offering rate determined by the
Administrative Agent on the basis of quotations for such certificates
received by it from three certificate of deposit dealers in New York of
recognized standing or, if such quotations are unavailable, then on the basis
of other sources reasonably selected by the Administrative Agent, by (y) a
percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily
net annual assessment rate as estimated by the Administrative Agent for
determining the current annual assessment payable by the Administrative Agent
to the Federal Deposit Insurance Corporation for insuring three-month
certificates of deposit.
"Administrative Agent" shall mean Bankers Trust Company, in
its capacity as Administrative Agent for the Banks hereunder, and shall
include any successor to the Administrative Agent appointed pursuant to
Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person; provided, however, that for
purposes of Section 9.06, an Affiliate of Holdings shall include (x) any
Person that directly or indirectly owns more than 5% of any class of the
capital stock of Holdings and (y) any executive officer or director of
Holdings. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Alpine" shall mean The Alpine Group, Inc., a Delaware
corporation.
"Alpine Permitted Amount" shall mean $2,000,000, provided that
if the Leverage Ratio as determined for the last day of any fiscal year of
Holdings ending after the Restatement Effective Date (calculating the
numerator as of such date and the denominator for the fiscal year then ended)
is (x) less than 3:1, the Alpine Permitted Amount shall instead be
$4,000,000, (y) greater than or equal to 3:1, but less than 3.25:1, the
Alpine Permitted Amount shall instead be $3,000,000 and (z) greater than or
equal to 4:1, the Alpine Permitted Amount shall instead by $0.
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"Alpine Put Guaranty" shall mean that certain Guarantee, dated
January 30, 1998, by Alpine in favor of Minerals Trading, Inc., ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"AMI Promissory Notes" shall mean (i) the $190,000 Promissory
Note Due 1995, dated December 11, 1991, made by American Premier, Inc. in
favor of Ferro Standard Corporation and (ii) the $1,000,000 Promissory Note
Due 1995, dated December 11, 1991, made by American Premier, Inc. in favor of
Ferro Metal and Chemical, Inc.
"APHI" shall mean American Premier Holdings, Inc., a Delaware
corporation.
"Applicable Currency" shall mean Dollars or Pounds Sterling,
as the case may be.
"Applicable Margin" shall mean a percentage per annum equal to
(i) in the case of Adience A Term Loans, Newco A Term Loans and Revolving
Loans that are maintained as (x) Base Rate Loans, 1.50%, and (y) Euro Rate
Loans, 2.50%, less, in each case the Interest Reduction Discount, if any,
(ii) in the case of B Term Loans that are maintained as (x) Base Rate Loans,
2.00%, and (y) Euro Rate Loans, 3.00%; and (iii) in the case of Adience C
Term Loans that are maintained as (x) Base Rate Loans, 2.25%, and (y) Euro
Rate Loans, 3.25%.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit J
(appropriately completed).
"Authorized Officer" of any Credit Party shall mean any of the
President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, any Vice-President, the Secretary or any Assistant Secretary of
such Credit Party or any other officer of such Credit Party which is
designated in writing to the Administrative Agent, BTCo and the Issuing Bank
by any of the foregoing officers of such Credit Party as being authorized to
give such notices under this Agreement.
"Available Revolving Loan Commitment" shall mean, at any time
and for any Bank, the Revolving Loan Commitment of such Bank as in effect
less such Bank's RL Percentage of the amount of Canadian Subsidiary Working
Capital Outstandings.
"B Term Loan" shall mean each Adience B Term Loan, each
Adience B-2 Term Loan and each Newco B Term Loan.
"B Term Loan Maturity Date" shall mean April 15, 2005.
"B-2 Term Loan Maturity Date" shall mean April 30, 2005.
"Bank" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Bank" hereunder pursuant
to Section 1.13 or 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Bank to make available its portion of any
Borrowing (including any Mandatory Borrowing or Mandatory Sterling Borrowing)
or to fund its portion of any unreimbursed payment under Section 2.04(c) or
(ii) a Bank having notified in writing any Borrower and/or the
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Administrative Agent that such Bank does not intend to comply with its
obligations under Section 1.01(g), 1.01(i), 1.01(k) or 2.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" at any time shall mean the highest of (i) 1/2 of
1% in excess of the Adjusted Certificate of Deposit Rate, (ii) 1/2 of 1% in
excess of the overnight Federal Funds Rate and (iii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Dollar Loan designated or
deemed designated as such by Adience or Newco, as the case may be, at the
time of the incurrence thereof or conversion thereto.
"Borrowers" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Banks having Commitments of the respective
Tranche on a given date (or resulting from a conversion or conversions on
such date) having in the case of Euro Rate Loans the same Interest Period,
provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of the related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day
which shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Euro Rate Loans and ▇▇▇▇▇▇▇▇
Letters of Credit, any day which is a Business Day described in clause (i)
above and which is also a day for trading by and between banks in the London
interbank market and which shall not be a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close in the city where the applicable Payment Office of the
Administrative Agent is located in respect of Euro Rate Loans or ▇▇▇▇▇▇▇▇
Letters of Credit, as the case may be.
"C Term Loan Maturity Date" shall mean July 30, 2005.
"Canadian Subsidiary Working Capital Facility" shall mean the
credit facility to be provided by BTCo (or another third party lender
satisfactory to the Administrative Agent) to certain Canadian Subsidiaries of
Adience, and which shall be in form and substance satisfactory to BTCo.
"Canadian Subsidiary Working Capital Indebtedness" shall have
the meaning provided in Section 9.04(xiii).
"Canadian Subsidiary Working Capital Outstandings" shall mean,
at any time, the sum of (i) all loans incurred under the Canadian Subsidiary
Working Capital Facility plus all
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amounts drawn under letters of credit issued under the Canadian Subsidiary
Working Capital Facility and (ii) the aggregate face amount of all bankers
acceptances under the Canadian Subsidiary Working Capital Facility.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be shown as capital expenditures
in accordance with generally accepted accounting principles and, without
duplication, the amount of Capitalized Lease Obligations incurred by such
Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are
or will be required to be capitalized on the books of such Person, in each
case taken at the amount thereof accounted for as indebtedness in accordance
with such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank having, or which
is the principal banking subsidiary of a bank holding company having, a
long-term unsecured debt rating of at least "A" or the equivalent thereof
from Standard & Poor's Ratings Group or "A2" or the equivalent thereof from
▇▇▇▇▇'▇ Investors Service, Inc. with maturities of not more than one year
from the date of acquisition by such Person, (iii) repurchase obligations
with a term of not more than seven days for underlying securities of the
types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued
by any Person rated at least A-1 or the equivalent thereof by Standard &
Poor's Ratings Group or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and in each case maturing not more than 270 days
after the date of acquisition by such Person, (v) Eurodollar certificates of
deposit maturing within one year after the date of acquisition thereof issued
by any commercial bank organized under the laws of the United States of
America or any State thereof or the District of Columbia or by any foreign
bank, which is a Bank, or United States branches of foreign banks, and in any
case having a combined capital and surplus of not less than $100,000,000 and
(vi) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (v)
above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) Alpine shall at any time
cease to own 100% of the capital stock of Holdings, or (ii) Holdings shall at
any time cease to own 100% of the capital stock of Adience, or (iii) Adience
shall at any time cease to own 100% of the capital stock of Newco, or (iv)
Newco shall at any time cease to own 100% of the capital stock of ▇▇▇▇▇▇▇▇,
or (v) a "change in control" or similar event shall occur as provided in the
Floating Rate Loan Credit Agreement, or (vi) the board of directors of Alpine
shall cease to consist of a majority of Continuing Directors or (vii) any
Person, entity or "group" (as such term is defined in Section
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13(d)(3) of the Securities Exchange Act of 1934, as amended) (other than a
Permitted Holder) is or becomes the beneficial owner of an amount of
outstanding Voting Stock, or of outstanding common stock, of Alpine in excess
of 25% of the total amount of fully diluted shares of outstanding Voting
Stock or common stock, as the case may be, of Alpine.
"Class B Common Stock" of Holdings shall have the meaning
provided in the Certificate of Incorporation of Holdings (as amended by the
Certificate of Amendment of Certificate of Incorporation of Holdings, dated
January 30, 1998).
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in
effect at the date of this Agreement and to any subsequent provisions of the
Code, amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purport to be granted) pursuant to any Security Document, including, without
limitation, all U.S. Pledge Agreement Collateral, all U.S. Security Agreement
Collateral, the Mortgaged Properties and all cash and Cash Equivalents
delivered as collateral pursuant to Section 4.02 or 10 hereof.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.04.
"Commitment" shall mean any of the commitments of any Bank,
i.e., whether, the Adience A Term Loan Commitment, the Adience B Term Loan
Commitment, the Adience B-2 Term Loan Commitment, the Adience C Term Loan
Commitment, the Newco A Term Loan Commitment, the Newco B Term Loan
Commitment or the Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Consolidated Cash Interest Expense" shall mean, for any
period, the total consolidated interest expense of Holdings and its
Subsidiaries (including Newco and its Subsidiaries) for such period plus,
without duplication, that portion of Capitalized Lease Obligations of
Holdings and its Subsidiaries (including Newco and its Subsidiaries)
representing the implicit or imputed interest factor for such period;
provided that (x) interest expense which is not required to be, and which is
not, paid or payable in cash on a current basis and (y) the amortization of
deferred financing costs with respect to this Agreement or the Indebtedness
incurred hereunder, and with respect to the Floating Rate Loans and the
Indebtedness incurred pursuant to the Floating Rate Loan Documents, in each
case shall be excluded from Consolidated Net Cash Interest Expense to the
extent the same would otherwise have been included therein.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income, before Consolidated Interest Expense and provision for taxes and
without giving effect to (x) any extraordinary gains or losses (including any
taxes attributable to any such extraordinary gains or
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losses) and (y) gains or losses from sales of assets other than inventory and
services sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by adding thereto the amount of all amortization of
intangibles and depreciation, in each case that were deducted in arriving at
Consolidated EBIT for such period; provided that (i) to the extent that
Adience has incurred non-cash charges or made non-cash write-downs of assets
of Adience in connection with the rationalization of the operations of APHI
and Adience, such amounts to the extent same reduced Consolidated EBITDA for
the respective Test Period shall be added back to Consolidated EBITDA for
such Test Period, (ii) to the extent that Adience incurs non-recurring costs
within six months after the Restatement Effective Date in connection with the
rationalization of the operations of APHI and Adience, such amounts to the
extent same reduced Consolidated EBITDA for the respective Test Period shall
be added back to Consolidated EBITDA for such Test Period, provided that in
no event shall the aggregate amount of all such non-recurring costs exceed
$4,000,000 in the aggregate, (iii) in making any determination of
Consolidated EBITDA of APHI for any Test Period, which such Test Period
includes any period occurring prior to the Restatement Effective Date, pro
forma effect will be given to the Acquisition as if same had occurred on the
first day of such Test Period and (iv) for the purpose of compliance with
Sections 9.09, 9.10 and 9.11, Consolidated EBITDA for the fiscal quarter of
Holdings ending in April, 1997 shall be increased by $4,250,000.
"Consolidated Fixed Charge Coverage Ratio" for any period
shall mean the ratio of Consolidated EBITDA to Consolidated Fixed Charges for
such period.
"Consolidated Fixed Charges" for any period shall mean the
sum, without duplication, of (i) Consolidated Interest Expense for such
period, (ii) the amount of all cash payments in respect of taxes or tax
liabilities during such period (net of any cash tax refunds actually received
during such period) and (iii) the scheduled principal amount of all
amortization payments on all Indebtedness (including, without limitation, the
principal component of all Capitalized Lease Obligations) of Holdings and its
Subsidiaries for such period (as determined on the first day of the
respective period).
"Consolidated Indebtedness" shall mean, at any time, the
aggregate amount of all Indebtedness of Holdings and its Subsidiaries
determined on a consolidated basis with respect to borrowed money or other
obligations of such Persons which would appear on the balance sheet of such
Persons as indebtedness.
"Consolidated Interest Coverage Ratio" for any period shall
mean the ratio of Consolidated EBITDA to Consolidated Cash Interest Expense
for such period; provided that for the purposes of Section 9.09, Consolidated
EBITDA for each fiscal quarter of Holdings ending on or prior to October,
2000 shall be increased by the amount set forth on Schedule XVII set forth
opposite such fiscal quarter. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, to the extent Consolidated Cash
Interest Expense is being determined for any Test Period which begins prior
to the Restatement Effective Date, then Consolidated Cash Interest Expense
(w) for the fiscal quarter of Holdings ended in July, 1997 shall be deemed to
be $6,625,000, (x) for the fiscal quarter of Holdings ended in October,
1997, shall be deemed to be
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$6,625,000 and (y) for the fiscal quarter of Holdings ended January, 1998,
shall be deemed to be $6,625,000; provided that, to the extent any
calculation pursuant to this Agreement is to be made on a Pro Forma Basis,
such Consolidated Cash Interest Expense shall be adjusted as provided in the
definition of Pro Forma Basis for transactions occurring after the
Restatement Effective Date.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of Holdings and its Subsidiaries
(including Newco and its Subsidiaries) for such period (calculated without
regard to any limitations on the payment thereof) plus, without duplication,
that portion of Capitalized Lease Obligations of Holdings and its
Subsidiaries (including Newco and its Subsidiaries) representing the implicit
or imputed interest factor for such period; provided that the amortization of
deferred financing costs with respect to this Agreement or the Indebtedness
incurred hereunder, and with respect to the Floating Rate Loans and the
Indebtedness incurred pursuant to the Floating Rate Note Documents, shall be
excluded from Consolidated Interest Expense to the extent the same would
otherwise have been included therein.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of Holdings and its Subsidiaries (including
Newco and its subsidiaries) for such period; provided that, except to the
extent such payments have already reduced Consolidated Net Income for the
respective period, Consolidated Net Income shall be reduced by the amount of
all payments made by Holdings and its Subsidiaries during the respective
period to Alpine pursuant to clauses (iii), (iv) and (v) of Section 9.03;
provided further, that to the extent that any payment pursuant to clause (v)
of Section 9.03 (excluding for purposes of this proviso any payment in
respect of the Alpine Permitted Amount) would, in accordance with U.S. GAAP
as applied by Alpine, be capitalized by Alpine for purposes of its
consolidated financial statements, such payment shall only reduce
Consolidated Net Income when, and then to the extent, such amounts reduce
Alpine's consolidated net income (in accordance with U.S. GAAP as applied by
Alpine).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance
or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
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"Continuing Bank" shall mean each Original Bank with a
Commitment under this Agreement (immediately upon giving effect to the
Restatement Effective Date).
"Continuing Directors" shall mean the directors of Alpine on
the Restatement Effective Date and each other director of Alpine if such
director's nomination for election to the Board of Directors of Alpine is
recommended by a majority of the then Continuing Directors.
"Credit Agreement Parties" shall mean and include each of
Holdings and each Borrower.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Guaranty, each Security Document and the ▇▇▇▇▇▇▇▇ Assumption
Agreement.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean Holdings, each Borrower and each
Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Designated Assets" shall mean the parcels of real property
referred to as such on Schedule III.
"Distribution" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution,
payment or delivery of property (other than common stock of such Person) or
cash to its stockholders or partners as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for any consideration any
shares of any class of its capital stock or any partnership interests
outstanding on or after the Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock or any
partnership interests), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership interests of such Person outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing,
"Distributions" with respect to any Person shall also include all payments
made or required to be made by such Person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any
similar plans or setting aside of any funds for the foregoing purposes, in
each case, except to the extent the respective such payments described in
this sentence reduced Consolidated Net Income for such period.
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"Documents" shall mean the Credit Documents, the Floating Rate
Note Documents, the Refinancing Documents and the Acquisition Documents.
"Dollar Equivalent" of an amount denominated in a currency
other than Dollars (the "Other Currency") shall mean, at any time for the
determination thereof, the amount of Dollars which could be purchased with
the amount of the respective Other Currency involved in such computation at
the spot exchange rate therefor as quoted by the Administrative Agent as of
11:00 A.M. (New York time) on the date two Business Days prior to the date of
any determination thereof for purchase on such date; provided that the Dollar
Equivalent of any Unpaid Drawing in a currency other than Dollars shall be
determined at the time the drawing under the related Letter of Credit was
paid or disbursed by the Issuing Bank; provided further, that for purposes of
(x) determining compliance with Sections 1.01(g), 1.01(h) and 2.02(a) and (y)
calculating Letter of Credit Fees pursuant to Section 3.01(b), the Dollar
Equivalent of the Stated Amount of any outstanding Letters of Credit and any
Unpaid Drawings, in each case denominated in a currency other than Dollars,
shall be revalued on a monthly basis using the spot exchange rate therefor
quoted in the Wall Street Journal on the first Business Day of each month.
"Dollar Loan" shall mean each Adience A Term Loan, each
Adience B Term Loan, each Adience B-2 Term Loan, each Adience C Term Loan,
each Newco B Term Loan, each Dollar Revolving Loan and each Swingline Loan.
"Dollar Revolving Loan" shall have the meaning provided in
Section 1.01(g).
"Dollar Revolving Note" shall have the meaning provided in
Section 1.05(a).
"Dollar Revolving Sub-Limit" shall mean $32,500,000.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of Holdings
incorporated or organized in the United States or any State or territory
thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in bank loans and any
other "accredited investor" (as defined in Regulation D of the Securities
Act).
"Employee Benefit Plans" shall have the meaning provided in
Section 5.04.
"End Date" shall have the meaning provided in the definition
of Interest Reduction Discount.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings arising under any Environmental Law or any permit
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issued, or any approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with alleged injury or threat of injury to
human health, safety or the environment due to the presence of Hazardous
Materials.
"Environmental Law" shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 et seq.; the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.;
the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency
Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. Section
11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. Section
1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq.; and any state and local or foreign counterparts or equivalents,
in each case as amended from time to time.
"Environmental Matters" shall have the meaning provided in
Section 8.01(i).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Holdings or any Subsidiary of
Holdings would be deemed to be a "single employer" within the meaning of
Section 414(b) or (c) of the Code, except that solely with respect to
liabilities to the PBGC for premiums, liabilities for excise taxes under
Section 4980B of the Code and pension funding liabilities under Section 412
of the Code, the term "ERISA Affiliate" also includes each person (as defined
in Section 3(9) of ERISA) which together with Holdings is treated as a
"single employer" within the meaning of Section 414(m) or (o) of the Code.
"Eurodollar Loan" shall mean each Dollar Loan designated as
such by Adience or Newco, as the case may be, at the time of the incurrence
thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for
Dollar deposits of amounts in immediately available funds comparable to the
outstanding principal amount of the Eurodollar Loan of BTCo with maturities
comparable to the Interest Period applicable to such Eurodollar Loan
commencing two Business Days thereafter as of 10:00 A.M. (New York time) on
the date which is two
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Business Days prior to the commencement of such Interest Period, divided (and
rounded off to the nearest 1/16 of 1%) by (b) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Euro Rate" shall mean and include each of the Eurodollar
Rate, the Sterling Euro Rate and the Overnight LIBOR Rate.
"Euro Rate Loan" shall mean each Eurodollar Loan and each
Sterling Loan.
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of Holdings (beginning with its
fiscal year ending April 30, 1998).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, (x) in the case of
Holdings Excess Cash Flow, the immediately preceding fiscal year of Holdings
and (y) in the case of Newco Excess Cash Flow, the immediately preceding
fiscal year of Newco.
"Existing Indebtedness" shall have the meaning provided in
Section 7.22.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.04.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate 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 the
Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"First Amendment" shall mean the First Amendment, dated as of
June 11, 1997, to the Original Credit Agreement.
"First Amendment Effective Date" shall have the meaning
provided in the First Amendment.
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"Floating Rate Loan Credit Agreement" shall mean that certain
Term Loan Agreement, dated as of April 15, 1997, among Holdings, Bankers
Trust Company, as Administrative Agent, and the various lenders party thereto
from time to time, as in effect on the Restatement Effective Date and as the
same may be amended, modified or supplemented from time to time pursuant to
the terms hereof and thereof.
"Floating Rate Loan Documents" shall mean and include the
Floating Rate Loan Credit Agreement and all other documents and agreements
entered into in connection therewith, in each case as in effect from time to
time.
"Floating Rate Loans" shall mean term loans incurred by
Holdings pursuant to the Floating Rate Loan Credit Agreement.
"Foreign Cash Equivalents" shall mean, with respect to any
Foreign Subsidiary of Holdings (i) any evidence of Indebtedness maturing not
later than six months after the date of acquisition and issued or guaranteed
by the national government of the country in which such Foreign Subsidiary is
incorporated or organized, (ii) any time deposits, certificates of deposit or
bankers acceptances maturing not later than six months after the date of
acquisition and issued by any bank, provided that the aggregate principal
amount of the Indebtedness referred to in clause (i) above, together with the
aggregate amount of the deposits or acceptances referred to in clause (ii)
above, shall not exceed at any time $10,000,000 and (iii) investments in
money market funds substantially all of the assets of which are comprised of
securities of the types described in clauses (i) and (ii) above and/or Cash
Equivalents.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States by Holdings or any one or
more of its Subsidiaries primarily for the benefit of employees of Holdings
or such Subsidiaries residing outside the United States, which plan, fund or
other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of Holdings
other than a Domestic Subsidiary.
"Foreign Subsidiary Guaranty" shall mean and include the U.K.
Subsidiary Guaranty and each Additional Guaranty delivered by a Foreign
Subsidiary pursuant to Section 8.11 or 8.12.
"Guaranteed Obligations" shall mean (i) the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of the principal and interest on each Note issued by each
Guaranteed Party to each Bank, and Loans made to a Guaranteed Party, under
this Agreement and all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit issued for the account of a Guaranteed Party,
together with all the other obligations and liabilities (including, without
limitation, indemnities, fees and interest thereon) of each Guaranteed Party
to such Bank now existing or hereafter incurred under, arising out of or in
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connection with this Agreement or any other Credit Document and the due
performance and compliance with all the terms, conditions and agreements
contained in the Credit Documents by each Guaranteed Party and (ii) the full
and prompt payment when due (whether by acceleration or otherwise) of all
obligations of each Guaranteed Party owing under any Interest Rate Protection
Agreement or Other Hedging Agreement entered into by each Guaranteed Party or
any of its Subsidiaries with any Bank or any affiliate thereof (even if such
Bank subsequently ceases to be a Bank under this Agreement for any reason),
or in which any such Bank or affiliate participate, and their subsequent
assigns, if any, whether now in existence or hereafter arising, and the due
performance and compliance with all terms, conditions and agreements
contained therein.
"Guaranteed Party" shall mean (i) in the case of Holdings, as
Guarantor, Adience, Newco and ▇▇▇▇▇▇▇▇ and (ii) in the case of Adience, as
Guarantor, Newco and ▇▇▇▇▇▇▇▇.
"Guarantor" shall mean each U.S. Parent Guarantor and each
Subsidiary Guarantor.
"Guaranty" shall mean and include each of the U.S. Parents
Guaranty, the U.S. Subsidiary Guaranty, the U.K. Subsidiary Guaranty and each
Additional Guaranty delivered pursuant to Section 8.11, 8.12 and/or 9.16.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, which are regulated under any applicable
Environmental Law; and (c) any other chemical, material or substance, the
Release of which is prohibited, limited or regulated by any governmental
authority.
"▇▇▇▇▇▇▇▇" shall have the meaning provided in the first
paragraph of this Agreement.
"▇▇▇▇▇▇▇▇ Letter of Credit" shall mean each Letter of Credit
issued for the account of ▇▇▇▇▇▇▇▇ pursuant to Section 2.01.
"▇▇▇▇▇▇▇▇ Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding ▇▇▇▇▇▇▇▇
Letters of Credit and (ii) the amount of all Unpaid Drawings with respect to
▇▇▇▇▇▇▇▇ Letters of Credit.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Holdings Adjusted Consolidated Net Income" for any period
shall mean Holdings Consolidated Net Income for such period plus, without
duplication, the sum of the amount of all net non-cash charges (including,
without limitation, depreciation, amortization, deferred tax expense,
non-cash interest expense) and net non-cash losses which were included in
arriving at
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Holdings Consolidated Net Income for such period less all net non-cash gains
included in arriving at Holdings Consolidated Net Income for such period;
provided that gains or losses from sales of assets (other than sales of
inventory in the ordinary course of business) shall be excluded to the extent
same would otherwise be included in Holdings Adjusted Consolidated Net Income
for the respective period.
"Holdings Adjusted Consolidated Working Capital" at any time
shall mean Holdings Consolidated Current Assets (but excluding therefrom all
cash, Cash Equivalents and Foreign Cash Equivalents) less Holdings
Consolidated Current Liabilities at such time.
"Holdings Consolidated Current Assets" shall mean, at any
time, the consolidated current assets of Holdings and its Subsidiaries
(excluding Newco and its Subsidiaries) at such time.
"Holdings Consolidated Current Liabilities" shall mean, at any
time, the consolidated current liabilities of Holdings and its Subsidiaries
(excluding Newco and its Subsidiaries) at such time, but excluding (i) the
current portion of any long-term Indebtedness which would otherwise be
included therein and (ii) the current portion of Indebtedness constituting
Capitalized Lease Obligations.
"Holdings Consolidated Net Income" shall mean, for any period,
the net after tax income of Holdings and its Subsidiaries (other than Newco
and its Subsidiaries) for such period; provided that, notwithstanding any
contrary treatment required by generally accepted accounting principles, for
purposes of determining Holdings Consolidated Net Income the financial
results of Newco and its Subsidiaries shall be ignored, such entities shall
be treated as if same were not Subsidiaries of Holdings, and any income of
Holdings and its Subsidiaries (other than Newco and its Subsidiaries) from
transactions with Newco and its Subsidiaries shall be accounted for on the
same basis as if they were transactions with unrelated parties; provided
further, that the amount of cash Distributions actually received by Holdings
and its Subsidiaries (other than Newco and its Subsidiaries) during the
respective period from Newco and its Subsidiaries shall, to the extent such
payments would not have reduced Newco Consolidated Net Income for such
period, in the absence of the proviso to the definition thereof, increase
Holdings Consolidated Net Income for such period.
"Holdings Excess Cash Flow" shall mean, for any period, the
remainder of (i) the sum of (a) Holdings Adjusted Consolidated Net Income for
such period and (b) the decrease, if any, in Holdings Adjusted Consolidated
Working Capital from the first day to the last day of such period, minus (ii)
the sum of (a) the amount of Capital Expenditures (but excluding Capital
Expenditures (x) financed with Indebtedness or equity proceeds or (y) made
with insurance proceeds pursuant to Section 9.07(c)) made by Holdings and its
Subsidiaries (other than Newco and its Subsidiaries) during such period in
accordance with Section 9.07, (b) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of Holdings and its Subsidiaries
(other than Newco and its Subsidiaries) (other than repayments of Loans,
provided that repayments of Loans shall be deducted in determining Holdings
Excess Cash Flow if such repayments were (x) required as a result of a
Scheduled Repayment under Section 4.02(b)(i), (iv), (v) or (vi) or (y) made
as a voluntary prepayment by Adience with internally generated funds (but
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in the case of a voluntary prepayment of Revolving Loans or Swingline Loans,
only to the extent accompanied by a voluntary reduction to the Total
Revolving Loan Commitment)) during such period, (c) to the extent same did
not reduce Holdings Consolidated Net Income for the respective period, the
amount of cash payments made to Alpine during such period pursuant to Section
9.03(iv) and (d) the increase, if any, in Holdings Adjusted Consolidated
Working Capital from the first day to the last day of such period.
"Immaterial Foreign Subsidiary" at any time shall mean any
Foreign Subsidiary of Holdings which (x) had consolidated net income before
interest and provision for taxes (excluding non-recurring gains or losses)
for the four consecutive fiscal quarters last ended (taken as one accounting
period) prior to the date of any determination pursuant to this definition
and for which financial information is then available of less than $1,000,000
and (y) has consolidated net worth under generally accepted accounting
principles applicable to such Foreign Subsidiary of less than $4,000,000.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services, (ii) the maximum amount available to be drawn under
all letters of credit issued for the account of such Person and all unpaid
drawings in respect of such letters of credit, (iii) all Indebtedness of the
types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether
or not such Indebtedness has been assumed by such Person (provided, that, if
the Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount equal to
the fair market value of the property to which such Lien relates as
determined in good faith by such Person), (iv) the aggregate amount required
to be capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement, any Other Hedging
Agreement or under any similar type of agreement. Notwithstanding the
foregoing, Indebtedness shall not include trade payables and accrued expenses
incurred by any Person in accordance with customary practices and in the
ordinary course of business of such Person.
"Indebtedness to be Refinanced" shall mean, collectively, (i)
the Revolving Credit Facility among American Premier, Inc., Premier Services
Corporation, Premier Refractories Canada, Ltd., Bank of America Illinois, The
First National Bank of Boston, and Bank of America Canada, dated June 3,
1996, as amended, (ii) the Note Agreement among American Premier, Inc.,
Premier Services Corporation, Premier Refractories Canada, Ltd. and the
Noteholders listed therein, dated May 15, 1996, (iii) the Deferred Interest
Bonds due December 31, 2003 (other than the $2.8M Deferred Interest Bond) and
(iv) the $4,996,266.42 Subordinated Notes due December 31, 2003.
"Initial Borrowing Date" shall mean the date occurring on or
after the Original Effective Date on which the initial Borrowing of Loans
under the Original Credit Agreement occurred.
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"Interest Determination Date" shall mean, with respect to any
Euro Rate Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Euro Rate Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Interest Reduction Discount" shall mean (i) initially zero
and (ii) from and after each day (each a "Start Date") of delivery of any
certificate delivered in accordance with the following sentence indicating an
entitlement to an Interest Reduction Discount other than zero (or, if a Start
Date has theretofore occurred with an Interest Reduction Discount of .25%,
indicating an entitlement to an Interest Reduction Discount of .50%), the
percentage set forth below opposite the Leverage Ratio indicated to have been
achieved in any certificate delivered in accordance with the following
sentence:
Base Rate Euro Rate
Leverage Ratio Loans Loans
-------------- --------- ---------
Equal to or less than 3.25:1 0.25% 0.25%
but greater than 2.75:1
Equal to or less than 2.75:1 0.50% 0.50%
The Leverage Ratio shall be determined based on the delivery of a certificate
of Holdings to the Administrative Agent (with a copy to be sent by Holdings
to each Bank), certified by an Authorized Officer of Holdings within 90 days
after the last day of any fiscal quarter of Holdings (commencing with its
fiscal quarter ending April 30, 1998), which certificate shall set forth the
calculation of the Leverage Ratio for the Test Period ended immediately prior
to the relevant Start Date and the Interest Reduction Discount which shall be
thereafter applicable (unless and until, in an instance where an Interest
Reduction Discount of .25% is indicated, such time, if any, as a subsequent
Start Date occurs where, in accordance with the requirements of this
sentence, a subsequent certificate of an Authorized Officer of Holdings
indicates an entitlement to an Interest Reduction Discount of .50%).
Notwithstanding anything to the contrary contained above in this definition,
the Interest Reduction Discount shall be reduced to zero at any time upon the
occurrence of any Default under Section 10.05 or any Event of Default, in
which case the Interest Reduction Discount shall remain at 0% until such
time, if any, as on a subsequent Start Date, no Default or Event of Default
is in existence and an Interest Reduction Discount of more than zero is
attained in accordance with the provisions of the preceding sentences of this
definition of Interest Reduction Discount.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Bank" shall mean BTCo and any other Bank which at the
request of the Revolving Loan Borrowers (or the respective Revolving Loan
Borrower) and with the consent of
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the Administrative Agent agrees, in such Bank's sole discretion, to become an
Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section
2. The sole Issuing Bank on the Restatement Effective Date is BTCo.
"Judgment Currency" shall have the meaning provided in Section
13.16(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 13.16(a).
"L/C Supportable Obligations" shall mean (i) obligations of
the respective Revolving Loan Borrower or any of its Subsidiaries (other
than, in the case of Adience Letters of Credit, ▇▇▇▇▇▇▇▇ and its
Subsidiaries) incurred in the ordinary course of business and (ii) in the
case of Put Letters of Credit, the Put Obligations.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit
and (ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness at such time to Consolidated EBITDA for the then
most recently ended Test Period; provided that (i) in calculating the
Leverage Ratio to the extent any Permitted Acquisition or Significant
Divestiture has occurred during the relevant Test Period or thereafter but on
or prior to the date of the respective determination of the Leverage Ratio,
Consolidated EBITDA shall be determined for the respective Test Period on a
Pro Forma Basis to give effect to all such Permitted Acquisitions and/or
Significant Divestitures occurring after the first day of the respective Test
Period and (ii) for the purposes of compliance with Section 9.10,
Consolidated EBITDA for each fiscal quarter of Holdings ending on or prior to
October 31, 2000 shall be increased by the amount set forth on Schedule XVII
opposite such fiscal quarter.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing or similar statement or notice filed
under the UCC or any other similar recording or notice statute, and any lease
having substantially the same effect as any of the foregoing).
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"Loan" shall mean each Adience A Term Loan, each Adience B
Term Loan, each Adience B-2 Term Loan, each Adience C Term Loan, each Newco A
Term Loan, each Newco B Term Loan, each Revolving Loan, each Swingline Loan
and each Sterling Swingline Loan.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated.
"Management Agreements" shall have the meaning provided in
Section 5.04.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(i).
"Mandatory Sterling Borrowing" shall have the meaning provided
in Section 1.01(k).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean any material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of Holdings, any Borrower, Holdings and
its Subsidiaries taken as a whole or any Borrower and its Subsidiaries taken
as a whole.
"Maturity Date" shall mean, with respect to any Tranche of
Loans, the A Term Loan Maturity Date, the B Term Loan Maturity Date, the B-2
Term Loan Maturity Date, the C Term Loan Maturity Date, the Adience A Term
Loan Maturity Date or the Revolving Loan Maturity Date, as the case may be.
"Maximum Sterling Swingline Amount" shall mean L5,000,000.
"Maximum Swingline Amount" shall mean $3,000,000.
"Minimum Borrowing Amount" shall mean (i) in the case of Newco
A Term Loans, L2,000,000, (ii) in the case of B Term Loans, $5,000,000, (iii)
in the case of Adience C Term Loans, $5,000,000, (iv) in the case of Dollar
Revolving Loans, $1,000,000, (v) in the case of Sterling Revolving Loans,
L500,000, (vi) in the case of Swingline Loans, $250,000 and (vii) in the case
of Sterling Swingline Loans, L125,000.
"Minimum Facing Fee Amount" shall have the meaning provided in
Section 3.01(c).
"MLA Cost" shall mean the cost imputed to a Bank in complying
with the Mandatory Liquid Assets requirements of the Bank of England during
the period in which a Sterling Loan is outstanding determined in accordance
with Schedule XI.
"Mortgage" shall mean and include each Original Mortgage, as
amended pursuant to the respective Mortgage Amendment, each New Mortgage,
and, after the execution and
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delivery thereof, each Additional Mortgage, in each case as same may be
amended, modified or supplemented from time to time.
"Mortgage Amendments" shall have the meaning provided in
Section 5.14(b).
"Mortgage Policies" shall mean and include each Original
Mortgage Policy, each New Mortgage Policy, and, after the execution and
delivery thereof, each mortgage insurance policy issued with respect to an
Additional Mortgaged Property.
"Mortgaged Property" shall mean and include each Original
Mortgaged Property, each New Mortgaged Property, and, after the execution and
delivery of any Additional Mortgage, shall include the respective Additional
Mortgaged Property.
"Net Sale Proceeds" shall mean for any sale of assets, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such sale of assets, net of (a) cash expenses of sale
(including, without limitation, brokerage fees, if any, transfer taxes and
payment of principal, premium and interest of Indebtedness other than the
Loans required to be repaid as a result of such asset sale) and (b) all
foreign, federal, state and local taxes to the extent payable as a direct
consequence of any such asset sale.
"New Banks" shall mean each of the Persons listed on Schedule
I hereto which is not a Continuing Bank.
"New Mortgage Policies" shall have the meaning provided in
Section 5.14(a).
"New Mortgaged Properties" shall have the meaning provided in
Section 5.14(a).
"New Mortgages" shall have the meaning provided in Section
5.14(a).
"Newco" shall have the meaning provided in the first paragraph
of this Agreement.
"Newco A Scheduled Repayment" shall have the meaning provided
in Section 4.02(b)(ii).
"Newco A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(ii).
"Newco A Term Loan" shall have the meaning provided in Section
1.01(b).
"Newco A Term Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Newco A Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Newco A Term Note" shall have the meaning provided in Section
1.05(a).
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"Newco Adjusted Consolidated Net Income" for any period shall
mean Newco Consolidated Net Income for such period plus, without duplication,
the sum of the amount of all net non-cash charges (including, without
limitation, depreciation, amortization, deferred tax expense and non-cash
interest expense and net non-cash losses which were included in arriving at
Newco Consolidated Net Income for such period less all net non-cash gains
included in arriving at Newco Consolidated Net Income for such period;
provided that gains or losses from sales of assets (other than sales of
inventory and services in the ordinary course of business) shall be excluded
to the extent same would otherwise be included in Newco Adjusted Consolidated
Net Income for the respective period.
"Newco Adjusted Consolidated Working Capital" at any time
shall mean Newco Consolidated Current Assets (but excluding therefrom all
cash, Cash Equivalents and Foreign Cash Equivalents) less Newco Consolidated
Current Liabilities.
"Newco B Scheduled Repayment" shall have the meaning provided in
Section 4.02(b)(iii).
"Newco B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(iii).
"Newco B Term Loan" shall have the meaning provided in Section
1.01(c).
"Newco B Term Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Newco B Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 and (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Newco B Term Note" shall have the meaning provided in Section
1.05(a).
"Newco Consolidated Current Assets" shall mean, at any time,
the consolidated current assets of Newco and its Subsidiaries at such time.
"Newco Consolidated Current Liabilities" shall mean, at any
time, the consolidated current liabilities of Newco and its Subsidiaries at
such time, but excluding (i) the current portion of any long-term
Indebtedness which would otherwise be included therein and (ii) the current
portion of Indebtedness constituting Capitalized Lease Obligations.
"Newco Consolidated Net Income" shall mean, for any period,
the net after tax income of Newco and its Subsidiaries for such period;
provided that the amount of cash Distributions actually paid by Newco and its
Subsidiaries to Holdings and its Subsidiaries (other than Newco and its
Subsidiaries) during the respective period shall, to the extent such payments
did not reduce Newco Consolidated Net Income for such period before giving
effect to this proviso, decrease Newco Consolidated Net Income for such
period.
"Newco Excess Cash Flow" shall mean, for any period, the
remainder of (i) the sum of (a) Newco Adjusted Consolidated Net Income for
such period and (b) the decrease, if any,
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in Newco Adjusted Consolidated Working Capital from the first day to the last
day of such period, minus (ii) the sum of (a) the amount of Capital
Expenditures (but excluding Capital Expenditures (x) financed with
Indebtedness or equity proceeds or (y) made with insurance proceeds pursuant
to Section 9.07(c)) made by Newco and its Subsidiaries during such period in
accordance with Section 9.07, (b) the aggregate principal amount of permanent
principal payments of Indebtedness for borrowed money of Newco and its
Subsidiaries (other than repayments of Loans, provided that repayments of
Loans shall be deducted in determining Newco Excess Cash Flow if such
repayments were (x) required as a result of a Scheduled Repayment under
Section 4.02(b)(ii) or (iii) or (y) made as a voluntary prepayment by Newco
or any of its Subsidiaries with internally generated funds (but in the case
of a voluntary prepayment of Revolving Loans or Sterling Swingline Loans,
only to the extent accompanied by a voluntary reduction to the Total
Revolving Loan Commitment)) during such period and (c) the increase, if any,
in Newco Adjusted Consolidated Working Capital from the first day to the last
day of such period. The foregoing calculation (and all components as used
therein) shall be made in Pounds Sterling.
"Newco Term Loan" shall mean each Newco A Term Loan and each
Newco B Term Loan.
"Newco Term Loan Commitment" shall mean, for each Bank, such
Bank's Newco A Term Loan Commitment and Newco B Term Loan Commitment.
"Newco U.K. Pledge Agreement" shall mean the Change Over
Shares, dated as of April 15, 1997, made between Newco and the Administrative
Agent and executed and delivered pursuant to Section 5.12 of the Original
Credit Agreement, as same may from time to time be amended, modified or
supplemented in accordance with the terms thereof.
"Non-Continuing Bank" shall mean any Original Bank which, as a
result of the repayment in full of its outstanding Loans (under, and as
defined in, the Original Credit Agreement) and the fact that such Bank does
not become a Continuing Bank, ceases to be a Bank pursuant to this Agreement
immediately after the occurrence of the Restatement Effective Date.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall mean each Adience A Term Note, each Adience B
Term Note, each Adience B-2 Term Note, each Adience C Term Note, each Newco A
Term Note, each Newco B Term Note, each Dollar Revolving Note, each Sterling
Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇ ▇▇▇▇▇▇, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto; provided that
copies of all notices with respect to Sterling Loans and/or ▇▇▇▇▇▇▇▇ Letters
of
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Credit shall also be sent to the office of the Administrative Agent located
at BT Services Ireland Limited, Abbey Court, Irish Life Centre, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇.
"Obligation Currency" shall have the meaning provided in
Section 13.16(a).
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Bank pursuant to the terms
of this Agreement or any other Credit Document.
"Original Banks" shall mean each Person which was a Bank
under, and as defined in, the Original Credit Agreement.
"Original Credit Agreement" shall have the meaning provided in
the first WHEREAS clause to this Agreement.
"Original Effective Date" shall mean the Effective Date under,
and as defined in, the Original Credit Agreement.
"Original Letters of Credit" shall mean the letters of credit
listed on Schedule XVI and previously issued under the Original Credit
Agreement.
"Original Loans" shall mean the Original Term Loans, the
Original Revolving Loans, the Original Swingline Loans and the Original
Sterling Swingline Loans.
"Original Mortgage Policies" shall mean each mortgage
insurance policy issued with respect to an Original Mortgage under the
Original Credit Agreement.
"Original Mortgaged Properties" shall mean all Real Property
of the Credit Parties designated as such on Schedule III.
"Original Mortgages" shall mean all Mortgages granted by the
Credit Parties pursuant to the Original Credit Agreement and which have not
been released by the lenders thereunder prior to the Restatement Effective
Date.
"Original Revolving Loans" shall mean the "Revolving Loans"
under, and as defined in, the Original Credit Agreement.
"Original Sterling Swingline Loan" shall mean the "Sterling
Swingline Loans" under, and as defined in, the Original Credit Agreement.
"Original Swingline Loans" shall mean the "Swingline Loans"
under, and as defined in, the Original Credit Agreement.
"Original Term Loans" shall mean the "Term Loans" under, and
as defined in, the Original Credit Agreement.
"Other Creditor" shall have the meaning provided in the
Security Documents.
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"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Overnight LIBOR Rate" shall mean the offered quotation to
first-class banks in the London interbank Eurodollar market by BTCo for
Pounds Sterling overnight deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Sterling Swingline Loan
of BTCo commencing as of 11:00 A.M. (London time) on the date of Borrowing of
the respective Borrowing of Sterling Swingline Loans; provided, that in the
event the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Sterling Loans, or in the circumstances described in
clause (i) to the proviso to Section 1.10(b) in respect of Sterling Loans,
the Overnight LIBOR Rate determined pursuant to this definition shall instead
be the rate determined by BTCo as the all-in-cost of funds for BTCo to fund
such Sterling Swingline Loan.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Blockage Period" shall have the meaning provided in
Section 9.03(ii). "Payment Office" shall mean (i) in respect
of Dollar Loans, Adience Letters of Credit, Fees (other than Letter of Credit
Fees and Facing Fees with respect to ▇▇▇▇▇▇▇▇ Letters of Credit) and, except
as provided in clause (ii) below, all other amounts owing under this
Agreement and the other Credit Documents, the office of the Administrative
Agent located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ABA
Number: ▇▇▇▇▇▇▇▇▇, Account Name: Commercial Loan Division, Account Number:
▇▇-▇▇▇-▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and (ii) in the case of Sterling
Loans, ▇▇▇▇▇▇▇▇ Letters of Credit and Letter of Credit Fees and Facing Fees
with respect to ▇▇▇▇▇▇▇▇ Letters of Credit, the office of the Administrative
Agent located in London, England at the office of Midland Bank, Account Name:
Bankers Trust Company, Account Number: ▇▇▇▇▇▇▇▇, Reference: Adience, Inc.,
Sort Code: 40-48-04, Attention: ▇▇▇▇ ▇▇▇▇▇▇ or in each case such other
office as the Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean the acquisition by Adience
or any of its Wholly-Owned Subsidiaries of assets constituting an entire
business or division of any Person not already a Subsidiary of Alpine or
Holdings or of 100% of the capital stock of any such Person which Person
shall, as a result of such acquisition, become a Wholly-Owned Subsidiary of
Adience, provided that (A) the consideration paid by the Borrowers and/or its
Subsidiaries consists solely of cash and/or the issuance or assumption, as
the case may be, of Indebtedness permitted in Section 9.04(x) and/or (xi),
(B) the assets acquired, or the business of the Person whose stock is
acquired, shall be in the same line of business in which Adience and its
Wholly-Owned Subsidiaries are already engaged, and (C) in the case of the
acquisition of 100% of the capital stock of any Person, such Person shall own
no capital stock of any other Person unless either (x) such Person owns 100%
of the capital stock of such other Person or (y) (1) such Person
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and/or its Wholly-Owned Subsidiaries own 80% of the consolidated assets of
such Person and its Subsidiaries and (2) any non-Wholly Owned Subsidiary of
such Person was non-Wholly Owned prior to the date of such Permitted
Acquisition of such Person. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, any acquisition shall be a
Permitted Acquisition only if all requirements of Sections 8.16 and 9.02(ii)
applicable to Permitted Acquisitions are met with respect thereto.
"Permitted Acquisition Amount" shall, at any time, be an
amount equal to (i) $12,500,000, less (ii) the sum of (x) the aggregate
amount of all cash consideration and the fair market value of any non-cash
consideration (but excluding any Indebtedness (and any cash proceeds thereof
paid as consideration) issued, incurred or assumed in connection with
Permitted Acquisitions theretofore made but only if the respective
Indebtedness was incurred pursuant to clauses (x) and/or (xi) of Section
9.04) and (y) the aggregate amount of reductions theretofore made to the
Permitted Investment Amount pursuant to clause (ii)(x) of the definition
thereof after the Initial Borrowing Date.
"Permitted Acquisition Subordinated Indebtedness" shall have
the meaning provided in Section 9.04(xi).
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its
reasonable discretion.
"Permitted Holder" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇, each member of the
immediate family of the foregoing natural person and any trust or similar
device created for the benefit of any one or more of the foregoing and each
Person which acquires the direct or indirect beneficial ownership interest in
shares of capital stock of Alpine as an executor or administrator for or by
way of inheritance or bequest from the foregoing natural person following the
death of such natural person.
"Permitted Investment Amount" at any time shall mean an amount
equal to (i) $5,000,000, minus (ii) the sum of (x) the aggregate amount of
Investments (including all cash investments and the fair market value of all
non-cash investments) pursuant to Section 9.05(xi) after the Restatement
Effective Date and (y) the aggregate amount of reductions theretofore made to
the Permitted Acquisition Amount pursuant to clause (ii)(x) of the definition
thereof after the Initial Borrowing Date, but only to the extent the amount
of such reductions exceeds $7,500,000.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Tax Payment" means (for any taxable year of Adience
in which it joins in filing a consolidated federal income tax return with (x)
Alpine or (y) Holdings (but not Alpine)) a payment (including any estimated
tax payment based on any estimated tax liability for such year) by Adience
and its Subsidiaries to Alpine (in the case preceding clause (x) is
applicable) or Holdings (in the case preceding clause (y) if applicable) in
an amount equal to the separate return federal income tax liability (if any)
of the affiliated group (within the meaning of Section 1504 of
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the Code) of which Holdings would be the parent (the "Holdings Group") if it
were not a member of another affiliated group for that or any other taxable
year; provided, that such payment can be made by Adience and its Subsidiaries
no earlier than two Business Days prior to the date on which the affiliated
group of which Adience is actually a member makes federal income tax payments
(including estimated tax payments) for such year to the Internal Revenue
Service. In the event that Alpine or Holdings and any member of the Adience
Group join in filing any combined or consolidated (or similar) state or local
income or franchise tax returns, then Permitted Tax Payment shall include
payments with respect to such state or local income or franchise taxes
determined in a manner as similar as possible to that provided in the
preceding sentence for federal income taxes.
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan, as defined in Section 3(2)
of ERISA, subject to Title IV of ERISA, Section 412 of the Code, or Section
401(a) of the Code, which is maintained or contributed to by (or to which
there is an obligation to contribute of) Holdings or a Subsidiary of Holdings
or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings or a Subsidiary of
Holdings or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledged Securities" shall mean all "Pledged Securities" as
defined in the U.S. Pledge Agreement.
"Pounds Sterling" and "L" shall mean freely transferable
lawful money of the United Kingdom.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other
loans at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, as to any Person, for any of the
following events which occur subsequent to the commencement of a period for
which the financial effect of such event is being calculated, and giving
effect to the event for which such calculation is being made, such
calculation as will give pro forma effect to such event as if same had
occurred at the beginning of such period of calculation, and
(i) for purposes of the foregoing calculation,
the transaction giving rise to the need to calculate the pro
forma effect to any of the following events shall be assumed
to have occurred on the first day of the four fiscal
quarter period last ended before the occurrence of the
respective event for which such pro forma effect is being
determined (the "Reference Period"), and
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(ii) in making any determination with respect
to the incurrence or assumption of any Indebtedness during the
Reference Period or subsequent to the Reference Period and on
or prior to the date of the transaction referenced in clause
(i) above (the "Transaction Date"), (x) all Indebtedness
(including the Indebtedness incurred or assumed and for which
the financial effect is being calculated, whether incurred
under this Agreement or otherwise, but excluding normal
fluctuations in revolving indebtedness incurred for working
capital purposes and not to finance any Permitted Acquisition)
incurred or permanently repaid during the Reference Period
shall be deemed to have been incurred or repaid at the
beginning of such period, (y) Consolidated Interest Expense of
such Person attributable to interest or dividends on any
Indebtedness, as the case may be, bearing floating interest
rates should be computed on a pro forma basis as if the rate
in effect on the Transaction Date had been the applicable rate
for the entire period and (z) Consolidated Interest Expense
will be increased or reduced by the net cost (including
amortization of discount) or benefit (after giving effect to
amortization of discount) associated with the Interest Rate
Protection Agreements, which will remain in effect for the
twelve-month period after the Transaction Date and which shall
have the effect of fixing the interest rate on the date of
computation, and
(iii) in making any determination of
Consolidated EBITDA, pro forma effect shall be given to any
Permitted Acquisition or Significant Divestiture which
occurred during the Reference Period or subsequent to the
Reference Period and prior to the Transaction Date, as if such
Permitted Acquisition or Significant Divestiture occurred on
the first day of the Reference Period, taking into account
cost savings and expenses which would otherwise be accounted
for as an adjustment pursuant to Article 11 of Regulation S-X
under the Securities Act, as if such cost savings or expenses
were realized on the first day of the Reference Period.
"Projections" shall have the meaning provided in Section 5.15.
"Put Letters of Credit" shall have the meaning provided in
Section 9.03
"Put Obligations" shall mean the obligations of Holdings to
purchase its Class B Common Stock from the holders thereof pursuant to the
terms of the Certificate of Incorporation of Holdings.
"Quarterly Payment Date" shall mean the last Business Day of
each April, July, October and January occurring after the Restatement
Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of
its Subsidiaries of any cash insurance proceeds or condemnation awards
payable (i) by reason of theft, loss, physical
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destruction or damage or any other similar event with respect to any property
or assets of Holdings or any of its Subsidiaries and (ii) under any policy of
insurance required to be maintained under Section 8.03.
"Refinancing" shall mean and include the refinancing and
repayment in full of all amounts outstanding (and any premiums owed) under,
and the termination in full of all commitments and Letters of Credit in
respect of, the Indebtedness to be Refinanced.
"Refinancing Documents" shall mean each of the agreements,
documents and instruments entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or
migrating, into or upon any land or water or air, or otherwise entering into
the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 other
than any reportable event arising from the Acquisition under Section
4043(c)(9) or Section 4043(c)(12) of ERISA.
"Required Appraisal" shall have the meaning provided in
Section 8.11.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans and Revolving Loan Commitments (or after the
termination thereof, outstanding
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Revolving Loans and RL Percentage of all outstanding Swingline Loans and
Sterling Swingline Loans and all Letter of Credit Outstandings) represent an
amount greater than 50% of the sum of all outstanding Term Loans of
Non-Defaulting Banks and the Total Revolving Loan Commitment less the
Revolving Loan Commitments of Defaulting Banks (or after the termination of
the Total Revolving Loan Commitment, the sum of the then total outstanding
Revolving Loans of Non-Defaulting Banks, and the aggregate RL Percentages of
all Non-Defaulting Banks of Letter of Credit Outstandings and outstanding
Swingline Loans and Sterling Swingline Loans at such time). For purposes of
determining Required Banks, all outstanding Loans and Commitments, as the
case may be, that are denominated in Dollars will be calculated in Dollars
and all Loans and Commitments, as the case may be, denominated in Pounds
Sterling will be calculated according to the Dollar Equivalent thereof.
"Restatement Effective Date" shall have the meaning provided
in Section 13.10.
"Restricted Payments" shall mean (a) any authorization,
declaration or payment of any Distributions with respect to any Credit
Agreement Party or any of its Subsidiaries or any other payment to Alpine or
any Affiliate of Adience or Alpine (excluding Adience and its Subsidiaries)
by Holdings or any of its Subsidiaries and (b) the making (or the giving of
any notice in respect thereof) by any Credit Agreement Party or any of its
Subsidiaries of any voluntary or mandatory payment, purchase, acquisition or
redemption, whether by the making of any payments of the principal, interest
or otherwise, in respect of any loan, advance or extension of credit made to
any Credit Agreement Party or any of its Subsidiaries by, or in respect of
any guarantee or Contingent Obligation made for the benefit of any Credit
Agreement Party or any of its Subsidiaries by, or in respect of any other
obligation of any Credit Agreement Party or any of its Subsidiaries owed to,
Alpine or any of its Subsidiaries (excluding Adience and its Subsidiaries) or
any other Affiliate of Adience (excluding Subsidiaries of Adience), whether
pursuant to a contractual agreement or otherwise. Notwithstanding anything to
the contrary contained above, payments made in respect of the Obligations in
accordance with the terms of this Agreement shall not constitute Restricted
Payments, even if the respective Obligations are held by Alpine or an
Affiliate of Alpine or the Borrower.
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(g).
"Revolving Loan Borrowers" shall mean and include each of
Adience and ▇▇▇▇▇▇▇▇.
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as the same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 1.13 or 13.04(b).
"Revolving Loan Maturity Date" shall mean April 15, 2003.
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"Revolving Note" shall mean each Dollar Revolving Note and
each Sterling Revolving Note.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, provided that if the RL
Percentage of any Bank is to be determined after the Total Revolving Loan
Commitment has been terminated, then the RL Percentages of the Banks shall be
determined immediately prior (and without giving effect) to such termination.
"Scheduled Repayment" shall mean an Adience A Scheduled
Repayment, an Adience B Scheduled Repayment, an Adience B-2 Scheduled
Repayment, an Adience C Scheduled Repayment, a Newco A Scheduled Repayment or
a Newco B Scheduled Repayment, as the case may be.
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Security Document" shall mean and include each U.S. Security
Document, each U.K. Security Document and each security document entered into
by Holdings or any Subsidiary of Holdings pursuant to Section 8.11, 8.12
and/or 9.16.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.04.
"Significant Divestiture" shall mean any sale or other
disposition of assets by Adience and/or its Subsidiaries, the fair market
value of which exceeds $500,000 for any transaction (or series of related
transactions).
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall have the meaning provided in the definition
of Interest Reduction Discount.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met, but after giving effect to all previous drawings made
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thereunder), provided that the "Stated Amount" of each Letter of Credit
denominated in Pounds Sterling shall be, on any date of calculation, the
Dollar Equivalent of the maximum amount available to be drawn in Pounds
Sterling thereunder (determined without regard to whether any conditions to
drawing could then be met).
"Sterling Equivalent" shall mean, at any time for the
determination thereof, the amount of Pounds Sterling which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefore as quoted by the Administrative Agent as of 11:00 A.M. (London
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date.
"Sterling Euro Rate" shall mean (i) the rate per annum that
appears on page 3750 of the Dow ▇▇▇▇▇ Telerate Screen (or any successor page)
for Pounds Sterling deposits with maturities comparable to the Interest
Period applicable to the Sterling Loans subject to the respective Borrowing
commencing two Business Days thereafter as of 11:00 a.m. (London time) on the
date which is two Business Days prior to the commencement of the respective
Interest Period or, if such a rate does not appear on page 3750 of the Dow
▇▇▇▇▇ Telerate Screen (or any successor page), (ii) the offered quotation to
first-class banks in the London interbank Eurodollar market by BTCo for
Pounds Sterling deposits of amounts in immediately available funds comparable
to the outstanding principal amount of the Sterling Loan of BTCo with
maturities comparable to the Interest Period applicable to such Sterling Loan
commencing two Business Days thereafter as of 11:00 A.M. (London time) on the
date which is two Business Days prior to the commencement of such Interest
Period; provided, that in the event the Administrative Agent has made any
determination pursuant to Section 1.10(a)(i) in respect of Sterling Loans, or
in the circumstances described in clause (i) to the proviso to Section
1.10(b) in respect of Sterling Loans, the Sterling Euro Rate determined
pursuant to this definition shall instead be the rate determined by BTCo as
the all-in-cost of funds for BTCo to fund such Sterling Loan with maturities
comparable to the Interest Period applicable thereto.
"Sterling Loan" shall mean each Newco A Term Loan, each
Sterling Revolving Loan and each Sterling Swingline Loan.
"Sterling Revolving Loan" shall have the meaning provided in
Section 1.01(g).
"Sterling Revolving Note" shall have the meaning provided in
Section 1.05(a).
"Sterling Revolving Sub-Limit" shall mean L15,000,000.
"Sterling Swingline Loan" shall have the meaning provided in
Section 1.01(j).
"Sterling Swingline Note" shall have the meaning provided in
Section 1.05(a).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
and/or one or more
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Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries
of such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of Holdings
which has executed and delivered a Guaranty.
"Subsidiary Guaranty" shall mean and include the U.S.
Subsidiary Guaranty and each Foreign Subsidiary Guaranty.
"Supermajority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if (x) all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated and (y) the percentage "50%" contained
therein were changed to "66-2/3%."
"Swingline Expiry Date" shall mean the date which is five (5)
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(h).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Date" shall mean that date upon which the
Administrative Agent determines in its sole discretion (and notifies the
Borrowers) that the primary syndication (and resultant addition of
institutions as Banks pursuant to Section 13.04) has been completed.
"Tax Sharing Agreements" shall have the meaning provided in
Section 7.25.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each Adience A Term Loan, each Adience
B Term Loan, each Adience B-2 Term Loan, each Adience C Term Loan, each Newco
A Term Loan and each Newco B Term Loan.
"Term Loan Commitment" shall mean each Adience A Term Loan
Commitment, each Adience B Term Loan Commitment, each Adience B-2 Term Loan
Commitment, each Adience C Term Loan Commitment, each Newco A Term Loan
Commitment and each Newco B Term Loan Commitment.
"Test Period" shall mean the four consecutive fiscal quarters
of Holdings then last ended (taken as one accounting period).
"Total Adience A Term Loan Commitment" shall mean, at any
time, the sum of the Adience A Term Loan Commitments of each of the Banks.
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"Total Adience B Term Loan Commitment" shall mean, at any
time, the sum of the Adience B Term Loan Commitments of each of the Banks.
"Total Adience B-2 Term Loan Commitment" shall mean, at any
time, the sum of the Adience B-2 Term Loan Commitments of each of the Banks.
"Total Adience C Term Loan Commitment" shall mean, at any
time, the sum of the Adience C Term Loan Commitments of each of the Banks.
"Total Available Revolving Loan Commitment" shall mean, at any
time, the Total Revolving Loan Commitment less Canadian Subsidiary Working
Capital Outstandings (for this purpose, using the Dollar Equivalent thereof).
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Newco A Term Loan Commitment" shall mean, at any time,
the sum of the Newco A Term Loan Commitments of each of the Banks.
"Total Newco B Term Loan Commitment" shall mean, at any time,
the sum of the Newco B Term Loan Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Total Adience A Term Loan Commitment, the Total Adience B Term Loan
Commitment, the Total Adience B-2 Term Loan Commitment, the Total Adience C
Term Loan Commitment, the Total Newco A Term Loan Commitment and the Total
Newco B Term Loan Commitment.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect, less (y) the sum of (I) the aggregate principal
amount of Revolving Loans then outstanding (or the Dollar Equivalent thereof
in the case of Sterling Revolving Loans then outstanding) plus (II) the
aggregate principal amount of Swingline Loans then outstanding plus (III) the
then aggregate amount of Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being eight separate Tranches,
i.e., Adience A Term Loans, Adience B Term Loans, Adience B-2 Term Loans,
Adience C Term Loans, Newco A Term Loans, Newco B Term Loans, Revolving Loans
and Swingline Loans.
"Transaction" shall mean, collectively, (i) the consummation
of the Acquisition, (ii) the consummation of the Refinancing, (iii) the
incurrence of Loans on the Restatement Effective Date and (iv) the payment of
fees and expenses owing in connection with the foregoing.
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"$2.8M Deferred Interest Bond" shall mean the $2,470,000
Deferred Interest Bond Due 2003, dated May 31, 1996, made by American Premier
Holdings, Inc. to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan, a
Eurodollar Loan or a Sterling Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"U.K. GAAP" shall mean generally accepted accounting
principles in the United Kingdom.
"U.K. Pledge Agreement" shall mean each of the Adience U.K.
Pledge Agreement and the Newco U.K. Pledge Agreement.
"U.K. Security Agreement" shall mean the Guaranty and
Debenture, dated April 30, 1997, made among Newco, certain U.K. Subsidiaries
and the Administrative Agent and executed and delivered pursuant to Section
5.12 of the Original Credit Agreement, as same may from time to time be
amended, modified or supplemented in accordance with the terms thereof.
"U.K. Security Documents" shall mean the U.K. Security
Agreement, each U.K. Pledge Agreement and, after the execution and delivery
thereof, each additional Security Document executed and delivered by any
Subsidiary of Holdings incorporated or organized under the laws of England.
"U.K. Subsidiary" shall mean each Subsidiary of Holdings
incorporated under the laws of England.
"U.K. Subsidiary Guarantor" shall mean Newco, Hepworth and
each other U.K. Subsidiary of Holdings which has executed and delivered a
U.K. Security Document.
"U.K. Subsidiary Guaranty" shall mean the guarantee provided
by the U.K. Subsidiaries (excluding certain Immaterial Foreign Subsidiaries)
pursuant to the U.K. Security Agreement.
"Unfunded Current Liability" of any Plan, means the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent plan year exceeds the fair
market value of the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan and in accordance with the provisions of ERISA for
calculating the potential liability of Holdings, any Subsidiary of Holdings
or any ERISA Affiliate on an ongoing basis to the PBGC or the Plan under
Title IV of ERISA.
"United States" and "U.S." shall each mean the United States
of America.
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"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such
time less the sum of (x) the aggregate principal amount of Revolving Loans
then outstanding (taking the Dollar Equivalent thereof in the case of any
Sterling Revolving Loans then outstanding) and (y) such Bank's RL Percentage
of the Letter of Credit Outstandings.
"U.S. GAAP" shall mean generally accepted accounting
principles in the United States of America.
"U.S. Parent Guarantors" shall mean and include each of
Holdings and Adience.
"U.S. Parents Guaranty" shall mean the guaranty of the U.S.
Parent Guarantors pursuant to Section 14.
"U.S. Pledge Agreement" shall mean the Pledge Agreement, dated
as of April 15, 1997, executed and delivered pursuant to Section 5.10 of the
Original Credit Agreement, as same may from time to time be amended, modified
or supplemented (including by the addition of certain additional Credit
Parties pursuant to the Subsidiary Assumption Agreement) in accordance with
the terms thereof.
"U.S. Pledge Agreement Collateral" shall mean all "Collateral"
as defined in the U.S. Pledge Agreement.
"U.S. Security Agreement" shall mean the Security Agreement,
dated as of April 15, 1997, executed and delivered pursuant to Section 5.11
of the Original Credit Agreement, as same may from time to time be amended,
modified or supplemented (including by the addition of certain additional
Credit Parties as parties thereto pursuant to the Subsidiary Assumption
Agreement) in accordance with the terms thereof.
"U.S. Security Agreement Collateral" shall mean all
"Collateral" as defined in the U.S. Security Agreement.
"U.S. Security Document" shall mean and include each of the
U.S. Security Agreement, the U.S. Pledge Agreement, each Mortgage (as amended
by the Mortgage Amendments in the case of the Original Mortgages) and, after
the execution and delivery thereof, each Additional Security Document
executed and delivered by Holdings, Adience or any Domestic Subsidiary
thereof.
"U.S. Subsidiary Guarantor" shall mean each Domestic
Subsidiary of Holdings which has executed and delivered a U.S. Subsidiary
Guaranty or an Additional Guaranty.
"U.S. Subsidiary Guaranty" shall mean the Subsidiary Guaranty,
dated as of April 15, 1997, executed and delivered pursuant to Section 5.13
of the Original Credit Agreement, as same may from time to time be amended,
modified or supplemented (including by the addition
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of certain additional Credit Parties pursuant to the Subsidiary Assumption
Agreement) in accordance with the terms thereof.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least
a majority of the Board of Directors of such Person.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Banks hereby designate BTCo as
Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall include BTCo in its capacity as Collateral Agent
pursuant to the Security Documents) to act as specified herein and in the
other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably
to authorize, the Administrative Agent to take such action on its behalf
under the provisions of this Agreement, the other Credit Documents and any
other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by
or through its respective officers, directors, agents, employees or
affiliates.
12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative
Agent nor any of its respective officers, directors, agents, employees or
affiliates shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent shall not have by reason
of this Agreement or any other Credit Document a fiduciary relationship in
respect of any Bank or the holder of any Note; and nothing in this Agreement
or any other Credit Document, expressed or implied, is intended to or shall
be so construed as to impose upon the Administrative Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly
set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of Holdings and its Subsidiaries in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the
creditworthiness of Holdings and its Subsidiaries and,
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except as expressly provided in this Agreement, the Administrative Agent
shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
The Administrative Agent shall not be responsible to any Bank or the holder
of any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered
in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency
of this Agreement or any other Credit Document or the financial condition of
Holdings or any of its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or
the financial condition of Holdings or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with
this Agreement or any other Credit Document, the Administrative Agent shall
be entitled to refrain from such act or taking such action unless and until
the Administrative Agent shall have received instructions from the Required
Banks; and the Administrative Agent shall not incur liability to any Person
by reason of so refraining. Without limiting the foregoing, no Bank or the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to
be the proper Person, and, with respect to all legal matters pertaining to
this Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative
Agent is not reimbursed and indemnified by the Borrowers or any of their
Subsidiaries, the Banks will reimburse and indemnify the Administrative
Agent, in proportion to their respective "percentages" as used in determining
the Required Banks, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its respective
duties hereunder or under any other Credit Document, in any way relating to
or arising out of this Agreement or any other Credit Document; provided that
no Bank 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 gross negligence or
willful misconduct.
12.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans, or issue or participate in
Letters of Credit, under this Agreement, the
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Administrative Agent shall have the rights and powers specified herein for a
"Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required
Banks," "Majority Banks," "Supermajority Banks," "holders of Notes" or any
similar terms shall, unless the context clearly otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with any Credit Party or any
Affiliate of any Credit Party as if it were not performing the duties
specified herein, and may accept fees and other consideration from any Credit
Party for services in connection with this Agreement and otherwise without
having to account for the same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall
be conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by
giving 15 Business Days' prior written notice to the Banks and the Borrowers.
Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation, the Required Banks
shall appoint a successor Administrative Agent hereunder or thereunder which
shall be a commercial bank or trust company reasonably acceptable to Adience.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of Adience (which consent shall not be unreasonably withheld
or delayed), shall then appoint a successor Administrative Agent which shall
serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Required Banks appoint a successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
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13.01 Payment of Expenses, etc. The Borrowers jointly and
severally agree that they shall: (i) whether or not the transactions herein
contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the
reasonable fees and disbursements of White & Case and the Administrative
Agent's local and foreign counsel and consultants) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
and any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect
to this Agreement and of the Administrative Agent and, after the occurrence
of an Event of Default, each of the Banks in connection with the enforcement
of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative
Agent); (ii) pay and hold each of the Banks harmless from and against any and
all present and future stamp, excise and other similar documentary taxes with
respect to the foregoing matters and save each of the Banks harmless from and
against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Bank) to pay such
taxes; and (iii) indemnify the Administrative Agent and each Bank, and each
of their respective officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies provided herein
or in the other Credit Documents, or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property owned or at any time operated by
Holdings or any of its Subsidiaries, the generation, storage, transportation,
handling or disposal of Hazardous Materials at any location, whether or not
owned or operated by Holdings or any of its Subsidiaries, the non-compliance
of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder)
applicable to any Real Property, or any Environmental Claim asserted against
Holdings, any of its Subsidiaries or any Real Property owned or at any time
operated by Holdings or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation,
litigation or other proceeding (but excluding any losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). To the
extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the
Borrowers shall make the maximum contribution to the payment and satisfaction
of each of the indemnified liabilities which is permissible under applicable
law.
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13.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default,
each Bank is hereby authorized (to the extent not prohibited by applicable
law) at any time or from time to time, without presentment, demand, protest
or other notice of any kind to any Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other Indebtedness at any
time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank wherever located) to or for the credit or the
account of any Credit Party against and on account of the Obligations and
liabilities of such Credit Party to such Bank under this Agreement or under
any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Bank pursuant to Section 13.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or
not such Bank shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
13.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
in writing (including telegraphic, telex, telecopier or cable communication)
and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any
Credit Party, at the address specified opposite its signature below or in the
other relevant Credit Documents; if to any Bank, at its address specified on
Schedule II; and if to the Administrative Agent, at the Notice Office; or, as
to any Credit Party or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Bank, at such other address as shall be designated by
such Bank in a written notice to the Borrowers and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective (x) three
Business Days after deposited in the mails, (y) one Business Day after
delivered to the telegraph company, cable company or a recognized overnight
courier, as the case may be, or (z) when sent by telex or telecopier, except
that notices and communications to the Administrative Agent shall not be
effective until received by the Administrative Agent.
13.04 Benefit of Agreement; Assignments; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, no Borrower may assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the
Banks and, provided further, that, although any Bank may transfer, assign or
grant participations in its rights hereunder, such Bank shall remain a "Bank"
for all purposes hereunder (and may not transfer or assign all or any portion
of its Commitments hereunder except as provided in Sections 1.13 and
13.04(b)) and the transferee, assignee or participant, as the case may be,
shall not constitute a "Bank" hereunder and, provided further, that no Bank
shall transfer or grant any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan
Maturity Date) in which such participant is participating, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce
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the principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
any Borrower of any of its rights and obligations under this Agreement,
(iii) release or terminate any Guaranty provided by any of Holdings, Adience,
Newco or ▇▇▇▇▇▇▇▇ or (iv) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrowers hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments and related outstanding Obligations (or, if the Commitments with
respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to (i) its parent company and/or any affiliate of such Bank which
is at least 50% owned by such Bank or its parent company or to one or more
Banks or (ii) in the case of any Bank that is a fund that invests in bank
loans, any other fund that invests in bank loans and is managed by the same
investment advisor of such Bank or by an Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of
such Commitments and related outstanding Obligations (or, if the Commitments
with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to one or more Eligible Transferees, each of which
assignees shall become a party to this Agreement as a Bank by execution of an
Assignment and Assumption Agreement, provided that, (i) any assignment of
outstanding Adience B Term Loans or Newco B Term Loans (or, if prior to the
Original Effective Date, the related Commitments) shall be required to
consist of a pro rata assignment of such Tranches (i.e., an assignment of the
same percentage of outstanding Adience B Term Loans and Newco B Term Loans
(or related Commitments)), (ii) any assignment of all or any portion of the
Revolving Loan Commitment and related outstanding Obligations (or, if the
Revolving Loan Commitment has terminated, any assignment of Obligations
originally extended pursuant to the Revolving Loan Commitments) shall be made
on a basis such that the respective assignee participates in both Dollar
Revolving Loans and Sterling Revolving Loans, and in all Letter of Credit
Outstandings, in accordance with the Revolving Loan Commitment so assigned
(or if the Revolving Loan Commitment has terminated, on the same basis as
participated in by the Banks with Revolving Loan Commitments prior to the
termination thereof), (iii) at such time Schedule I shall be deemed modified
to reflect the Commitments (or outstanding Term Loans, as the case may be) of
such new Bank and of the existing Banks, (iv) upon the surrender of the
relevant Notes by the assigning Bank (or, upon such assigning Bank's
indemnifying the respective Borrower for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued, at the
Borrowers' expense, to such new Bank and to the assigning Bank upon the
request of such new Bank or assigning Bank,
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such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Commitments (or outstanding Term Loans, as the case may be), (v) the consent
of the Administrative Agent shall be required in connection with any
assignment to an Eligible Transferee pursuant to clause (y) above, (vi) the
Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Bank, the payment of a non-refundable assignment
fee of $3,500, and (vii) promptly after such assignment, the Borrowers shall
have received from the Administrative Agent notice of any such assignment and
of the identity, nationality and applicable lending office of any such
Eligible Transferee that is not a United States Person (as defined in Section
7701(a)(30) of the Code), together with the copy of the Assignment and
Assumption Agreement relating thereto and, provided further, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 13.15 hereof. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Bank hereunder and which
is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for Federal income tax purposes, the respective assignee Bank
shall, to the extent legally entitled to do so, provide to Adience the
appropriate Internal Revenue Service Forms (and, if applicable, a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Bank's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b)
would, at the time of such assignment, result in increased costs under
Section 1.10, 2.06 or 4.04 in excess of those being charged by the respective
assigning Bank prior to such assignment, then the Borrowers shall not be
obligated to pay such excess increased costs (although the Borrowers, in
accordance with and pursuant to the other provisions of this Agreement, shall
be obligated to pay the costs which are not in excess of those being charged
by the respective assigning Bank prior to such assignment and any subsequent
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Bank which is a fund may
pledge all or any portion of its Notes or Loans to its trustee in support of
its obligations to its trustee. No pledge pursuant to this clause (c) shall
release the transferor Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent, the Collateral Agent or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any Borrower or any other Credit
Party and the Administrative Agent, the Collateral Agent or any Bank shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent or any Bank would otherwise have.
No notice to or demand on any Credit Party in any case shall
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entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent, the Collateral Agent or any Bank to any other or further action in any
circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of any Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other
than any Bank that has consented in writing to waive its pro rata share of
any such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or
interest on, the Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received
by other Banks is in a greater proportion than the total of such Obligation
then owed and due to such Bank bears to the total of such Obligation then
owed and due to all of the Banks immediately prior to such receipt, then such
Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all the Banks in such amount; provided that if
all or any portion of such excess amount is thereafter recovered from such
Bank, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
13.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with US GAAP (or, in the case of the financial
statements of Newco and its Subsidiaries only, UK GAAP), consistently applied
throughout the periods involved (except as set forth in the notes thereto or
as otherwise disclosed in writing by the Borrowers to the Banks); provided
that the financial statements of Newco and its Subsidiaries shall also (x) be
accompanied by convenience translations pursuant to which all Pounds Sterling
(or other currencies not in Dollars) amounts will be converted into Dollars
both (i) using the Dollar Equivalent as in effect on the last day of the
respective fiscal quarter or year of ▇▇▇▇▇▇▇▇, as the case may be, and (ii)
on the basis provided in Section 13.07(b)(i), and (y) contain a
reconciliation between UK GAAP and US GAAP.
(b) Notwithstanding anything to the contrary contained in
clause (a) of this Section 13.07, (i) all calculations used in determining
Holdings Excess Cash Flow and compliance with Sections 9.08 through 9.11,
inclusive, shall convert all Pounds Sterling (or other currencies not in
Dollars) amounts into Dollars using the average rate of exchange (as quoted
in the Wall Street Journal) during the relevant fiscal period based on the
rates in effect in London, England on each Business Day during such fiscal
period, provided that in determining the Leverage Ratio at any time the
numerator thereof shall be calculated by converting all Pounds Sterling (or
other currencies not in Dollars) amounts into Dollars using the Dollar
Equivalent of the respective such amounts as in effect on the date of
determination, (ii) for purposes of determining compliance with any
incurrence tests set forth in Sections 8 and/or 9 (excluding Sections 9.08
through 9.11,
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inclusive), any amounts so incurred or expended (to the extent incurred or
expended in a currency other than Dollars) shall be converted into Dollars on
the basis of the Dollar Equivalent of the respective such amounts as in effect
on the date of such incurrence or expenditure under any provision of any such
Section that has an aggregate Dollar limitation provided for therein (and to the
extent the respective incurrence test regulates the aggregate amount outstanding
at any time and it is expressed in terms of Dollars, all outstanding amounts
originally incurred or spent in currencies other than Dollars shall be converted
into Dollars on the basis of the Dollar Equivalent of the respective such
amounts as in effect on the date any new incurrence or expenditures made under
any provision of any such Section that regulates the Dollar amount outstanding
at any time) and (iii) except as otherwise specifically provided herein, all
computations determining compliance with Sections 9.08 through 9.11, inclusive,
shall utilize accounting principles and policies in conformity with those used
to prepare the financial statements delivered to the Banks for the first fiscal
year of the Borrower ended after the Original Effective Date pursuant to Section
8.01(c) (which annual financial statements shall be generally consistent with
the historical financial statements delivered to the Banks pursuant to Section
7.05(a) and (b)) but shall be made in accordance with the requirements of clause
(i) or (ii), as the case may be, of this Section 13.07(b) and (iii) all
calculations used in determining Newco Excess Cash Flow shall be made in Pounds
Sterling, utilizing accounting principles and policies in conformity with those
used to prepare the historical financial statements delivered to the Banks prior
to the Initial Borrowing Date pursuant to Section 7.05(b) of the Original Credit
Agreement.
(c) All computations of interest, Commitment Commission and
Fees hereunder shall be made on the basis of a year of 360 days (or 365 days
in the case of interest on Sterling Loans) for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest, Commitment Commission or Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
(EXCEPT, IN THE CASE OF OTHER CREDIT DOCUMENTS, AS SPECIFICALLY OTHERWISE
PROVIDED THEREIN) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF
(X) THE ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT
OF NEW YORK, OR (Y) THE HIGH COURT OF JUSTICE IN ENGLAND AND WALES AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, HOLDINGS AND EACH BORROWER HEREBY
IRREVOCABLY ACCEPT FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF HOLDINGS
AND EACH BORROWER HEREBY FURTHER IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR SUCH BORROWER, AND AGREES
NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR SUCH
BORROWER. EACH OF HOLDINGS AND EACH
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BORROWER FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO HOLDINGS
OR SUCH BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF HOLDINGS AND
EACH BORROWER HEREBY IRREVOCABLY WAIVE ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY
ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS OR ANY
BORROWER IN ANY OTHER JURISDICTION.
(b) EACH OF HOLDINGS AND EACH BORROWER HEREBY IRREVOCABLY
WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective
on the date (the "Restatement Effective Date") on which (i) Holdings, each
Borrower, the Administrative Agent, Required Banks (determined immediately
before the occurrence of the Restatement Effective Date) and each of the New
Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent
at the Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex
notice (actually received) at such office that the same has been signed and
mailed to it and (ii) the conditions contained in Sections 5 and 6 are met to
the
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satisfaction of the Administrative Agent and the Required Banks (determined
immediately after the occurrence of the Restatement Effective Date). Unless
the Administrative Agent has received actual notice from any Bank that the
conditions contained in Sections 5 and 6 have not been met to its
satisfaction, upon the satisfaction of the condition described in clause (i)
of the immediately preceding sentence and upon the Administrative Agent's
good faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Restatement Effective
Date shall have been deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the Restatement Effective Date shall not release
any Borrower from any liability for failure (to the extent not waived by the
Administrative Agent and the Required Banks) to satisfy one or more of the
applicable conditions contained in Section 5 or 6). The Administrative Agent
shall give each Borrower and each Bank prompt written notice of the
occurrence of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party
thereto and the Required Banks (except that additional parties may be added
to the various Guaranties and Security Documents in accordance with the
provisions thereof, without the consent of the other Credit Parties party
thereto or the Required Banks), provided that no such change, waiver,
discharge or termination shall, without the consent of each Bank (other than
a Defaulting Bank) with Obligations being directly modified, (i) extend the
final scheduled maturity of any Loan or Note or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except to the extent repaid in cash),
(ii) release or terminate any Guaranty provided by any of Holdings, Adience,
Newco or ▇▇▇▇▇▇▇▇ or (iii) release all or substantially all of the Collateral
(except as expressly provided in the Credit Documents) under all the Security
Documents, (iv) amend, modify or waive any provision of this Section 13.12
(except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections set forth in
the proviso below to such additional extensions of credit), (v) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Required Banks on substantially the same basis as the extensions of Term
Loans and Revolving Loan Commitments are included on the Original Effective
Date (or, in the case of Adience A Term Loans, Adience B-2 Term Loans and
Adience C Term Loans, the Restatement Effective Date) or (vi) consent to the
assignment or transfer by any Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver,
discharge or termination shall (t) without the consent of BTCo, amend, modify
or waive any provision relating to the rights or obligations with respect to
Swingline Loans or Sterling Swingline Loans, as the case may be (including,
without limitation, the obligations of other Banks with Revolving Loan
Commitments to fund Mandatory Borrowings or Mandatory Sterling
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Borrowings, as the case may be), (u) increase the Commitments of any Bank over
the amount thereof then in effect without the consent of such Bank (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitments shall not constitute an increase of the Commitment of any Bank, and
that an increase in the available portion of any Commitment of any Bank shall
not constitute an increase of the Commitment of such Bank), (v) without the
consent of each Issuing Bank, amend, modify or waive any provision of Section 2
or alter its rights or obligations with respect to Letters of Credit, (w)
without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 12 or any other provision as same relates to the rights or
obligations of the Administrative Agent, (x) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, (y) except in cases where additional
extensions of term loans are being afforded substantially the same treatment
afforded to the Term Loans pursuant to this Agreement as originally in effect,
without the consent of the Majority Banks of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Banks of
each Tranche in the case of an amendment to the definition of Majority Banks),
amend the definition of Majority Banks or alter the required application of any
prepayments or repayments (or commitment reductions), as between the various
Tranches, pursuant to Section 4.01 or 4.02 (excluding Section 4.02(b)) (although
the Required Banks may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Tranches, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered) or (z) without the consent of
the Supermajority Banks of the respective Tranche, waive, or decrease the amount
of, any Adience B Scheduled Repayment, Adience A Scheduled Repayment, Adience
B-2 Scheduled Repayment, Adience C Scheduled Repayment, Newco A Scheduled
Repayment or Newco B Scheduled Repayment or extend the date on which the
respective Scheduled Repayment is required to be made.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the
consent of one or more of such other Banks whose consent is required is not
obtained, then Adience shall have the right, so long as all non-consenting
Banks whose individual consent is required are treated as described below, to
replace each such non-consenting Bank or Banks (or, at the option of Adience
if the respective Bank's consent is required with respect to less than all
Tranches of Loans (or related Commitments), to replace only the respective
Tranche or Tranches of Commitments and/or Loans of the respective
non-consenting Bank which gave rise to the need to obtain such Bank's
individual consent) with one or more Replacement Banks pursuant to Section
1.13 so long as at the time of such replacement, each such Replacement Bank
consents to the proposed change, waiver, discharge or termination, provided,
that in any event Adience shall not have the right to replace a Bank,
terminate its Revolving Loan Commitment or repay its Loans solely as a result
of the exercise of such Bank's rights (and the withholding of any required
consent by such Bank) pursuant to the second proviso to Section 13.12(a).
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13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall
survive the execution, delivery and termination of this Agreement and the
Notes and the making and repayment of the Obligations.
13.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11,
2.06 or 4.04 in excess of those being charged by the respective Bank prior to
such transfer, then the Borrowers shall not be obligated to pay such excess
increased costs (although the Borrowers, in accordance with and pursuant to
the other provisions of this Agreement, shall be obligated to pay the costs
which would apply in the absence of such designation and any subsequent
increased costs of the type described above resulting from changes after the
date of the respective transfer).
13.15 Register. Each Borrower hereby designates the
Administrative Agent to serve as such Borrower's agent, solely for purposes
of this Section 13.15, to maintain a register (the "Register") on which it
will record the Commitments from time to time of each of the Banks, the Loans
made by each of the Banks and each repayment in respect of the principal
amount of the Loans of each Bank. Failure to make any such recordation, or
any error in such recordation shall not affect the respective Borrower's
obligations in respect of such Loans. With respect to any Bank, the transfer
of the Commitments of such Bank and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitments and Loans
and prior to such recordation all amounts owing to the transferor with
respect to such Commitments and Loans shall remain owing to the transferor.
The registration of assignment or transfer of all or part of any Commitments
and Loans shall be recorded by the Administrative Agent on the Register only
upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).
Coincident with the delivery of such an Assignment and Assumption Agreement
to the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Bank shall surrender the Note evidencing such Loan,
and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Bank and/or the new Bank.
Each Borrower jointly and severally agrees to indemnify the Administrative
Agent from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by
the Administrative Agent in performing its duties under this Section 13.15.
13.16 Judgment Currency. (a) The Credit Parties' obligations
hereunder and under the other Credit Documents to make payments in the
respective Applicable Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent or the respective Bank
of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the Collateral Agent or such Bank under this Agreement or
the other Credit Documents. If for the purpose of obtaining
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or enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the Sterling Equivalent or the Dollar Equivalent
thereof, as the case may be, and, in the case of other currencies, the rate of
exchange (as quoted by the Administrative Agent or if the Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Administrative Agent) determined, in each case, as of
the day immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency Conversion
Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment
of the amount due, the Borrowers covenant and agree to pay, or cause to be
paid, such additional amounts, if any (but in any event not a lesser amount)
as may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of the Obligation Currency which could have been
purchased with the amount of Judgment Currency stipulated in the judgment or
judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Sterling Equivalent or
the Dollar Equivalent or any other rate of exchange for this Section, such
amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
13.17 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 13.17, each Bank agrees that it will use its
reasonable efforts not to disclose without the prior consent of Adience
(other than to its employees, auditors, advisors or counsel or to another
Bank if the Bank or such Bank's holding or parent company in its sole
discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.17 to the same extent as such Bank) any information with respect
to Holdings or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document and which
is designated by Adience to the Banks in writing as confidential, provided
that any Bank may disclose any such information (a) as has become generally
available to the public, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required or appropriate in respect to any summons
or subpoena or in connection with any litigation, (d) in order to comply with
any law, order, regulation or ruling applicable to such Bank, (e) to the
Administrative Agent or the Collateral Agent or any other Bank and (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or
any interest therein by such Bank, provided, that such prospective transferee
shall be subject to the provisions of this Section 13.17(a).
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(b) Each of Holdings and each of the Borrowers hereby
acknowledge and agree that each Bank may share with any of its affiliates any
information related to Holdings or any of its Subsidiaries (including,
without limitation, any nonpublic customer information regarding the
creditworthiness of Holdings and its Subsidiaries, provided such Persons
shall be subject to the provisions of this Section 13.17 to the same extent
as such Bank).
13.18 Acknowledgment. The Banks hereby acknowledge and agree
that, unless and until the provisions of Section 8.12 require further action,
(x) the guarantee of the Obligations provided by Newco in the U.K. Security
Documents shall only apply to guarantee the Obligations of ▇▇▇▇▇▇▇▇, (y) the
guarantee of the Obligations provided by ▇▇▇▇▇▇▇▇ in the U.K. Security
Documents shall only apply to guarantee the Obligations of Newco and (z) the
guarantee of the Obligations provided by the Foreign Subsidiaries shall only
apply to guarantee the Obligations of the U.K. Borrowers. The Banks further
acknowledge and agree that, unless and until the provisions of Section 8.12
require further action, the security interests granted by each of Newco,
▇▇▇▇▇▇▇▇ and the Foreign Subsidiaries under the Security Documents to which
it is a party shall only secure such party's guarantee obligations provided
in the preceding sentence.
13.19 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11 or 2.06 of this
Agreement, unless a Bank gives notice to the respective Borrower that it is
obligated to pay an amount under the respective Section within one year after
the later of (x) the date the Bank incurs the respective increased costs, loss,
expense or liability, reduction in amounts received or receivable or reduction
in return on capital or (y) the date such Bank has actual knowledge of its
incurrence of the respective increased costs, loss, expense or liability,
reductions in amounts received or receivable or reduction in return on capital,
then such Bank shall only be entitled to be compensated for such amount by such
Borrower pursuant to said Section 1.10, 1.11 or 2.06, as the case may be, to the
extent the costs, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs one year prior to such Bank giving notice to such
Borrower that it is obligated to pay the respective amounts pursuant to said
Section 1.10, 1.11 or 2.06, as the case may be. This Section 13.19 shall have no
applicability to any Section of this Agreement other than said Sections 1.10,
1.11 or 2.06.
13.20 Acknowledgment and Agreement of Credit Parties. Each
of the Credit Parties, by executing and delivering a counterpart of this
Agreement, hereby consents to the increased extensions of credit pursuant to
this Agreement which will be made available as a result of the amendment and
restatement hereof on the Restatement Effective Date. All such extensions of
credit, as well as the extensions of credit pursuant to the Original Credit
Agreement shall be entitled to all benefits of (and shall be fully guaranteed
pursuant to) each of the Guaranties and shall be fully secured pursuant to,
and in accordance with the terms of, the various Security Documents.
13.21 Additions of New Banks; Obligations to Pay Certain Amounts
Owing Pursuant to Original Credit Agreement; Termination of Commitments of
Non-Continuing Banks; Certain Provisions Regarding Original Banks. (a) On and
as of the occurrence of the Restatement Effective Date in accordance with
Section 13.10 hereof, each New Bank shall become a "Bank" under, and for all
purposes of, this Agreement and the other Credit Documents.
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(b) The parties hereto acknowledge that each Original Bank
has been offered the opportunity to participate in this Agreement, after the
occurrence of the Restatement Effective Date, as a Continuing Bank hereunder,
but that no Original Bank is obligated to be a Continuing Bank.
(c) By their execution and delivery hereof, each Borrower and
the Required Banks (determined immediately before the occurrence of the
Restatement Effective Date) consent to the voluntary repayment of certain
Revolving Loans (as contemplated by the requirements of the last sentence of
Section 1.01(g)) and certain Obligations owing to the Original Banks as
required by Section 5.18.
(d) Each Non-Continuing Bank's Original Loans outstanding on the
Restatement Effective Date shall be repaid in full on such date, together with
interest thereon and all accrued Fees (and any other amounts) owing to such
Non-Continuing Bank, and the Revolving Loan Commitment (under, and defined in,
the Original Credit Agreement) of such Non-Continuing Bank, if any, shall be
terminated, effective upon the occurrence of the Restatement Effective Date.
(e) Notwithstanding anything to the contrary contained in this
Agreement, it is understood and agreed that, with respect to each Non-Continuing
Bank, although such Non-Continuing Bank shall cease to constitute a Bank
pursuant to this Agreement (on a prospective basis) on the Restatement Effective
Date, all indemnities contained in the Original Credit Agreement shall continue
to apply to such Non-Continuing Banks, and shall be deemed incorporated herein
by reference.
13.22 Post Closing Actions. Notwithstanding anything to the
contrary contained in this Agreement or the other Credit Documents, the
parties hereto acknowledge and agree that:
(a) Mortgages. The Credit Agreement Parties were not
required to satisfy the conditions precedent set forth in Section 5.14 on the
Restatement Effective Date. It is agreed that within 60 days after the
Restatement Effective Date, the Credit Agreement Parties shall take all
action as may be required to satisfy the conditions set forth in (I) Section
5.14, including by (i) delivering fully executed counterparts of the New
Mortgages and New Mortgage Policies and (ii) fully executed counterparts of
the Mortgage Amendments and endorsements to each Original Mortgage Policy and
(II) Section 5.02(ii).
(b) Audited Financials of the Acquired Business. Within 60
days of the Restatement Effective Date, there shall have been delivered to
the Administrative Agent an audited consolidated balance sheet of the
Acquired Business at April 30, 1997 and October 31, 1997 and the related
statements of consolidated income, consolidated cash flows and shareholders'
equity of the Acquired Business for the year and the six-month period ended
on such date, which consolidated balance sheets and related statements of
consolidated income, consolidated cash flows and shareholders' equity shall
be in form and substance reasonably satisfactory to the Administrative Agent
and the Required Banks.
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(c) UCC Searches; Terminations; etc. The Credit Parties were
not required to satisfy the condition precedent set forth as Section 5.07(b)
of this Agreement on the Restatement Effective Date, and have not delivered
all terminations of financing statements which would have been required in
connection with the termination of security interests in favor of Continental
Bank and Bank of America Illinois. It is agreed that, within 30 days after
the Restatement Effective Date, the Credit Parties shall take all action as
may be required to (i) satisfy the conditions set forth in Section 5.07(b),
including by returning Requests for Information or Copies (Form UCC-11), or
equivalent reports, listing all effective financing statements that name
Holdings or any of its Domestic Subsidiaries as Debtor that are filed in the
jurisdictions referred to therein, which Requests for Information or Copies
shall show no evidence of the financing statements in favor of Continental
Bank or Bank of America Illinois, which shall have been terminated and (ii)
terminate all mortgages (and make filings of such terminations reasonably
satisfactory to the Administrative Agent) securing Indebtedness repaid on or
prior to the Restatement Effective Date.
All conditions precedent and representations contained in this
Agreement and the other Credit Documents shall be deemed modified to the
extent necessary to effect the foregoing (and to permit the taking of the
actions described above within the time periods required above, rather than
as elsewhere provided in the Credit Documents); provided, that (x) to the
extent any representation and warranty would not be true because the
foregoing actions were not taken on the Restatement Effective Date, the
respective representation and warranty shall be required to be true and
correct in all material respects at the time the respective action is taken
(or was required to be taken) in accordance with the foregoing provisions of
this Section 13.22 and (y) all representations and warranties relating to the
Security Documents shall be required to be true immediately after the actions
required to be taken by this Section 13.22 have been taken (or were required
to be taken). The acceptance of the benefits of each Credit Event shall
constitute a representation, warranty and covenant by the Borrowers to each
of the Banks that the actions required pursuant to this Section 13.22 will
be, or have been, taken within the relevant time periods referred to in this
Section 13.22 and that, at such time, all representations and warranties
contained in this Agreement and the other Credit Documents shall then be true
and correct without any modification pursuant to this Section 13.22. The
parties hereto acknowledge and agree that the failure to take any of the
actions required above, within the relevant time periods required above,
shall give rise to an immediate Event of Default pursuant to this Agreement.
SECTION 14. U.S. Parents Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each U.S. Parent Guarantor from the
proceeds of the Loans and the issuance of the Letters of Credit, each U.S.
Parent Guarantor hereby jointly and severally agrees with the Banks as
follows: each U.S. Parent Guarantor hereby, jointly and severally,
unconditionally and irrevocably guarantees, as primary obligor and not merely
as surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of
each Guaranteed Party to the Secured Creditors. If any or all of the
Guaranteed Obligations of any Guaranteed Party to the Secured Creditors
becomes due and payable hereunder, each U.S. Parent Guarantor unconditionally
promises to pay such indebtedness to the Secured Creditors, or order,
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on demand, together with any and all expenses which may be incurred by the
Secured Creditors in collecting any of the Guaranteed Obligations.
14.02 Bankruptcy. Additionally, each U.S. Parent Guarantor,
jointly and severally, unconditionally and irrevocably guarantees the payment
of any and all of the Guaranteed Obligations of each Guaranteed Party to the
Secured Creditors whether or not due or payable by such Guaranteed Party upon
the occurrence of any of the events specified in Section 10.05, and
unconditionally promises to pay such indebtedness to the Secured Creditors,
or order, on demand. Each U.S. Parent Guarantor agrees that all payments made
by it with respect to any Guaranteed Obligations pursuant to this Guaranty
shall be made in the respective currency in which the underlying Guaranteed
Obligations are denominated or payable, as the case may be. This Guaranty
shall constitute a guaranty of payment, and not of collection.
14.03 Nature of Liability. (i) The liability of each U.S.
Parent Guarantor hereunder is exclusive and independent of any security for
or other guaranty of the Guaranteed Obligations of any Guaranteed Party
whether executed by such U.S. Parent Guarantor, any other guarantor or by any
other party, and the liability of neither U.S. Parent Guarantor hereunder
shall be affected or impaired by (a) any direction as to application of
payment by any Guaranteed Party or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations of any Guaranteed
Party, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by any Guaranteed Party, or (e) any payment made to the
Secured Creditors on the Guaranteed Obligations which any such Secured
Creditor repays to any Guaranteed Party pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each U.S. Parent Guarantor waives any right to the deferral
or modification of its obligations hereunder by reason of any such
proceeding.
(ii) If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over such payee
or any of its property or (ii) any settlement or compromise of any such claim
effected by such payee with any such claimant (including any Guaranteed
Party), then and in such event each U.S. Parent Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon
each U.S. Parent Guarantor, notwithstanding any revocation hereof or other
instrument evidencing any liability of any Guaranteed Party, and such U.S.
Parent Guarantor shall be and remain liable to the aforesaid payees hereunder
for the amount so repaid or recovered to the same extent as if such amount
had never originally been received by any such payee.
14.04 Independent Obligation. The obligations of each U.S.
Parent Guarantor hereunder are independent of the obligations of any other
guarantor, any other party or any Guaranteed Party, and a separate action or
actions may be brought and prosecuted against each U.S. Parent Guarantor
whether or not action is brought against any other guarantor, any other party
or any Guaranteed Party and whether or not any other guarantor, any other
party or any Guaranteed Party shall be joined in any such action or actions.
Each U.S. Parent Guarantor
-151-
waives, to the full extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof.
Any payment by any Guaranteed Party or other circumstance which operates to
toll any statute of limitations as to such Guaranteed Party shall operate to
toll the statute of limitations as to each U.S. Parent Guarantor. This
Guaranty is a continuing one and all liabilities to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon.
14.05 Authorization. Each U.S. Parent Guarantor authorizes
the Secured Creditors without notice or demand (except as shall be required
by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Guaranteed Obligations (including any increase
or decrease in the rate of interest thereon), any security therefor,
or any liability incurred directly or indirectly in respect thereof,
and the Guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Guaranteed Party or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, any Guaranteed Party or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of
any liability (whether due or not) of any Guaranteed Party to its
creditors other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of any Guaranteed Party to the
Secured Creditors regardless of what liability or liabilities of
any Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements; and/or
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(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of such U.S. Parent Guarantor from its
liabilities under this Guaranty.
14.06 Reliance. It is not necessary for the Secured
Creditors to inquire into the capacity or powers of any Guaranteed Party or
the officers, directors, partners or agents acting or purporting to act on
their behalf, and any Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of any
Guaranteed Party now or hereafter owing to any U.S. Parent Guarantor is
hereby subordinated to the Guaranteed Obligations of such Guaranteed Party
owing to the Secured Creditors; and if the Administrative Agent so requests
at a time when an Event of Default exists, all such indebtedness of any
Guaranteed Party to any U.S. Parent Guarantor shall be collected, enforced
and received by such U.S. Parent Guarantor for the benefit of the Secured
Creditors and be paid over to the Administrative Agent on behalf of the
Secured Creditors on account of the Guaranteed Obligations of such Guaranteed
Party to the Secured Creditors, but without affecting or impairing in any
manner the liability of such U.S. Parent Guarantor under the other provisions
of this Guaranty. Prior to the transfer by any U.S. Parent Guarantor of any
note or negotiable instrument evidencing any of the indebtedness of any
Guaranteed Party to such U.S. Parent Guarantor, such U.S. Parent Guarantor
shall ▇▇▇▇ such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the
foregoing, each U.S. Parent Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at
any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) Each U.S. Parent Guarantor waives any
right (except as shall be required by applicable statute and cannot be
waived) to require the Secured Creditors to (i) proceed against any
Guaranteed Party, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from any Guaranteed Party, any other
guarantor or any other party or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. Each U.S. Parent Guarantor waives any defense
based on or arising out of any defense of any Guaranteed Party, any other
guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any Guaranteed
Party, any other guarantor or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of any Guaranteed Party other than payment in
full of the Guaranteed Obligations. The Secured Creditors may, at their
election, foreclose on any security held by the Administrative Agent, the
Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Secured Creditors may have
against any Guaranteed Party or any other party, or any security, without
affecting or impairing in any way the liability of any U.S. Parent Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in
full. Each U.S. Parent Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to
impair or extinguish any right of reimbursement
-153-
or subrogation or other right or remedy of such U.S. Parent Guarantor against
any Guaranteed Party or any other party or any security.
(b) Each U.S. Parent Guarantor waives all presentments,
demands for performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor, notices
of acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Guaranteed Obligations. Each U.S. Parent
Guarantor assumes all responsibility for being and keeping itself informed of
the each Guaranteed Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such U.S.
Parent Guarantor assumes and incurs hereunder, and agrees that the
Administrative Agent and the Banks shall have no duty to advise any U.S.
Parent Guarantor of information known to them regarding such circumstances or
risks.
14.09 Nature of Liability. It is the desire and intent of
each U.S. Parent Guarantor and the Secured Creditors that this Guaranty shall
be enforced against such U.S. Parent Guarantor to the fullest extent
permissible under the laws and public policies applied in each jurisdiction
in which enforcement is sought. If, however, and to the extent that, the
obligations of any U.S. Parent Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of such U.S. Parent Guarantor shall be deemed to be reduced and
such U.S. Parent Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
c/o The Alpine Group, Inc. REFRACO INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, By: /s/ Bragi ▇. ▇▇▇▇▇
Vice President -----------------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Executive Vice President
Facsimile: (212) 757-3423
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ADIENCE, INC.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President By: /s/ Bragi ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ -----------------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Title Senior Vice President
Swanswick Court REFRACO HOLDINGS LIMITED
Alfreton
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ By: /s/ Bragi ▇. ▇▇▇▇▇
Attn: Company Secretary -----------------------------------------
Telephone: Title: Director and Secretary
Facsimile: (▇▇) ▇▇▇▇▇▇▇▇▇▇▇
Swanswick Court REFRACO (UK) LIMITED
Alfreton
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ By: /s/ Bragi ▇. ▇▇▇▇▇
Attn: Company Secretary -----------------------------------------
Telephone: Title: Director
Facsimile: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇▇
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------
Title: Director
CORESTATES BANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-fact and on behalf
of First America Life Insurance
Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
ROYALTON COMPANY
By: Pacific Investment Management
Company, as its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
PRIME INCOME TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: SVP Portfolio Manager
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: AVP
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING CAPITAL ADVISORS, INC.,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
KZH-ING-1 CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Agent
LLOYDS BANK PLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
By: /s/ Windsor ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE
PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assets Management L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD.
By: Protective Assets Management Company, as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: President
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO [A UNIT OF THE CHASE
MANHATTAN BANK]
By:
-----------------------------------------
Title:
PARIBAS CAPITAL FUNDING LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: Director
ACKNOWLEDGEMENT AND AGREEMENT
Each of the undersigned, each being a Subsidiary Guarantor on the
Restatement Effective Date (including each Subsidiary of Holdings which was a
Subsidiary Guarantor immediately before the Restatement Effective Date and each
Subsidiary of Holdings which becomes a Subsidiary Guarantor on the Restatement
Effective Date) hereby acknowledges and agrees to the provisions of the
foregoing Amended and Restated Credit Agreement (including, without limitation,
Sections 13.20 and 13.21 thereof), and hereby agrees for the benefit of the
Banks that all extensions of credit pursuant thereto (including, with respect to
the U.S. Subsidiary Guarantors, the increased extensions of credit made as a
result of the occurrence of the Restatement Effective Date and all other
obligations pursuant to the Amended and Restated Credit Agreement), shall be
fully entitled to the benefits of (and shall be fully guaranteed and secured
pursuant to, and in accordance with, the provisions of) the respective
Guaranties and Security Documents.
DORMA INDUSTRIES LTD.
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Director
PREMIER SERVICES CORPORATION
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
PSC TECHNOLOGIES, INC.
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
PSC INVESTMENTS, INC.
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
GLOBE REFRACTORIES, INC.
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
API TECHNOLOGIES, INC.
By: /s/ Bragi ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
SCHEDULE I
COMMITMENTS AND LOAN OUTSTANDINGS
Adience A Adience B Adience B-2 Adience C Newco A Newco B Revolving
Term Loan Term Loans Term Loan Term Loan Term Loans Term Loans Loan
Bank Commitment Outstanding Commitment Commitment Outstanding Outstanding Commitment
---- ---------- ----------- ----------- ---------- ----------- ----------- ----------
Bankers Trust Company $10,000,000 $6,071,825.41 $30,000,000 $75,000,000 L6,854,207.40 $1,746,031.75 $22,823,529.41
BankBoston, N.A. $ 0 L3,607,477.58 $ 0 $ 4,117,647.06
CoreStates, N.A. $ 0 L7,214,955.16 $ 0 $ 8,235,294.12
Cypress Tree Investment $1,655,952.36 $476,190.48
Management Company,
Inc.
Prime Income Trust $6,292,619.05 $1,809,523.80
Fleet National Bank $ 0 L3,896,075.79 $ 0 $ 8,647,058.82
The ING Capital Senior $1,655,952.39 $476,190.48
Secured Income Fund
L.P.
KZH-ING-1 Corporation $1,655,952.38 $476,190.48
Lloyds Bank PLC $ 0 L5,411,216.37 $ 0 $ 6,176,470.59
▇▇▇▇▇▇ ▇▇▇▇▇ Prime Rate $3,919,087.30 $1,126,984.12
Portfolio
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior
Floating Rate Fund, Inc. $3,919,087.30 $1,126,984.13
ML CBO IV (Cayman) $1,655,952.38 $476,190.48
Ltd.
Octagon Credit Investors $6,292,619.05 $1,809,523.80
Paribas Capital Funding $ 0 L3,679,627.13 $ 0
LLC
Royalton Company $1,655,952.38 $476,190.48
TOTAL: $10,000,000 $34,775,000 $30,000,000 $75,000,000 $10,000,000 $ 50,000,000
SCHEDULE II
Page 3
BANK ADDRESSES AND APPLICABLE LENDING OFFICES
BANKERS TRUST COMPANY ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
BANK BOSTON, N.A. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
CORESTATES BANK ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
MANAGEMENT COMPANY, INC. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
ROYALTON COMPANY c/o Pacific Investment Management Co.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
PRIME INCOME TRUST Two World Trade Center,
c/o ▇▇▇▇ ▇▇▇▇▇▇ Intercapital, Inc. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK One Federal Street
Mail Stop: MAOFDO3J
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
THE ING CAPITAL SENIOR SECURED HIGH ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
INCOME FUND, L.P. ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
KZH-ING-1 CORPORATION ▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
LLOYDS BANK PLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
RATE FUND, INC. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
ML CBO IV (CAYMAN) LTD. 1150 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇#▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Dindero
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
OCTAGON CREDIT INVESTORS ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
LOAN PORTFOLIO ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[A UNIT OF THE CHASE MANHATTAN Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
BANK] Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
PARIBAS CAPITAL FUNDING LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE XI
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Sterling Loan for each of its Interest Periods is
calculated in accordance with the following formula:-
BY+(Y-Z)
------------------ BY+(Y-Z)% per annum = MLA Cost
100-(B+S)
where on the day of the application of the formula:
B is the percentage of a Bank's eligible liabilities which the
Bank of England requires that Bank to hold on a non-interest-
bearing deposit account in accordance with its cash ratio
requirements;
Y is the rate at which sterling deposits are offered by the
relevant Bank to leading banks in the London interbank
market at or about 11:00 a.m. on that day for the relevant
period;
S is the percentage of the relevant Bank's eligible liabilities
which the Bank of England requires the relevant Bank to place
as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
(b) For the purposes of this Schedule XI:-
(i) "eligible liabilities" and "special deposits" have the meanings
given to them at the time of application of the formula by the
Bank of England;
(ii) "relevant period" in relation to a Sterling Loan, means:-
(A) if the relevant Interest Period is 3 months or less,
its Interest Period; or
(B) if the relevant Interest Period is more than 3 months, each
successive period of 3 months and any necessary shorter period
comprised in that Interest Period.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant period
comprised in the relevant Interest Period of a Sterling Loan.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
-176-
(e) If the Administrative Agent determines that a change in circumstances
has rendered, or will render, the formula inappropriate, the
Administrative Agent (after consultation with the Banks) shall notify
the respective Borrower of the manner in which the MLA Cost will
subsequently be calculated. The manner of calculation so notified by
the Administrative Agent shall, in the absence of manifest error, be
binding on all the parties.
-177-
SCHEDULE XV
ORIGINAL LETTERS OF CREDIT
Letter of Credit No. Amount Issued Expiry Date Beneficiary
-------------------- ------ ------ ----------- -----------
S11857 $ 420,000.00 4/15/97 9/9/98 Universal Bonding Insurance
Company
S11858 $ 200,000.00 4/15/97 8/29/98 First Factors Corp.
S11859 $1,946,658.00 4/15/97 10/16/98 Zurich American Insurance Co.
-178-
SCHEDULE XVI
EBITDA Addback
Holdings' Fiscal Quarter
Ending Closest to the Last
Day In Amount
April, 1998 $4,750,000
July, 1998 $4,250,000
October, 1998 $3,500,000
January, 1999 $3,000,000
April, 1999 $3,750,000
July, 1999 $2,750,000
October, 1999 $1,750,000
January, 2000 $1,000,000
April, 2000 $500,000
October, 2000 $250,000