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EXHIBIT 10.29
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
▇▇▇▇▇ LEMMERZ INTERNATIONAL, INC.,
as Borrower
The Several Lenders
from Time to Time Parties Hereto,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and Co-Lead Arranger
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent and Co-Lead Arranger
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Co-Documentation Agent,
and
DRESDNER BANK AG,
as Co-Documentation Agent and European Swing Line Administrator
Dated as of February 3, 1999
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS........................................................2
1.1 Defined Terms......................................................2
1.2 Other Definitional Provisions.....................................31
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................32
2.1 Revolving Credit Commitments......................................32
2.2 Revolving Credit Notes............................................32
2.3 Procedure for Revolving Credit Borrowing..........................32
2.4 Commitment Fees; Other Fees.......................................33
2.5 Termination or Reduction of Revolving Credit Commitments..........33
2.6 Swing Line Commitments............................................34
2.7 Competitive Bid Procedure.........................................39
2.8 Term Loans........................................................42
2.9 Term Notes........................................................42
2.10 Repayment of Loans................................................44
2.11 Guarantee.........................................................44
SECTION 3. LETTERS OF CREDIT.................................................47
3.1 L/C Commitment....................................................47
3.2 Procedure for Issuance of Letters of Credit.......................48
3.3 Fees, Commissions and Other Charges...............................48
3.4 L/C Participations................................................49
3.5 Reimbursement Obligation of the Borrower..........................50
3.6 Obligations Absolute..............................................51
3.7 Letter of Credit Payments.........................................51
3.8 Application.......................................................51
SECTION 4. GENERAL PROVISIONS................................................52
4.1 Interest Rates and Payment Dates..................................52
4.2 Optional Prepayments..............................................52
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments.......................................................53
4.4 Conversion and Continuation Options...............................56
4.5 Minimum Amounts and Maximum Number of Tranches....................56
4.6 Computation of Interest, Fees and Dollar Equivalent Amount........57
4.7 Inability to Determine Interest Rate..............................58
4.8 Pro Rata Treatment and Payments...................................58
4.9 Illegality........................................................60
4.10 Requirements of Law...............................................61
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4.11 Taxes.............................................................62
4.12 Indemnity.........................................................64
4.13 Change of Lending Office; Replacement of Lenders..................64
4.14 Borrower Controls on Non-Dollar Indebtedness;
Calculation of Non-Dollar
Extensions of Credit; Prepayments................................65
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................65
5.1 Financial Condition...............................................65
5.2 No Change; Solvency...............................................66
5.3 Corporate Existence; Compliance with Law..........................67
5.4 Corporate Power; Authorization; Enforceable Obligations...........67
5.5 No Legal Bar......................................................67
5.6 No Material Litigation............................................67
5.7 No Default........................................................68
5.8 Ownership of Property; Liens......................................68
5.9 Intellectual Property.............................................68
5.10 No Burdensome Restrictions........................................68
5.11 Taxes.............................................................68
5.12 Federal Regulations...............................................69
5.13 ERISA.............................................................69
5.14 Collateral........................................................69
5.15 Investment Company Act; Other Regulations.........................70
5.16 Subsidiaries and Joint Ventures...................................70
5.17 Purpose of Loans..................................................70
5.18 Environmental Matters.............................................70
5.19 Regulation H......................................................71
5.20 No Material Misstatements.........................................71
5.21 Labor Matters.....................................................72
5.22 Year 2000.........................................................72
SECTION 6. CONDITIONS PRECEDENT..............................................72
6.1 Conditions to Effectiveness.......................................72
6.2 Conditions to Each Extension of Credit............................75
SECTION 7. AFFIRMATIVE COVENANTS.............................................76
7.1 Financial Statements..............................................76
7.2 Certificates; Other Information...................................77
7.3 Payment of Obligations............................................78
7.4 Conduct of Business and Maintenance of Existence..................78
7.5 Maintenance of Property; Insurance................................79
7.6 Inspection of Property; Books and Records; Discussions............79
7.7 Notices...........................................................79
7.8 Environmental Laws................................................80
7.9 Further Assurances................................................81
7.10 Additional Collateral.............................................81
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SECTION 8. NEGATIVE COVENANTS................................................83
8.1 Financial Condition Covenants.....................................83
8.2 Limitation on Indebtedness........................................86
8.3 Limitation on Liens...............................................87
8.4 Limitation on Guarantee Obligations...............................90
8.5 Limitation on Fundamental Changes.................................91
8.6 Limitation on Sale of Assets......................................91
8.7 Limitation on Dividends...........................................93
8.8 Limitation on Capital Expenditures................................93
8.9 Limitation on Investments, Loans and Advances.....................93
8.10 Limitation on Optional Payments and Modifications of Debt
Instruments.......................................................95
8.11 Limitation on Transactions with Affiliates........................95
8.12 Limitation on Changes in Fiscal Year..............................96
8.13 Limitation on Negative Pledge Clauses.............................96
8.14 Limitation on Lines of Business...................................96
8.15 Limitations on Currency and Commodity Hedging Transactions........96
SECTION 9. EVENTS OF DEFAULT.................................................97
SECTION 10. THE MANAGING AGENTS..............................................100
10.1 Appointment......................................................100
10.2 Delegation of Duties.............................................101
10.3 Exculpatory Provisions...........................................101
10.4 Reliance by Administrative Agent and Other Managing Agents.......101
10.5 Notice of Default................................................101
10.6 Non-Reliance on Administrative Agent, Other Managing Agents and
Other Lenders..................................................102
10.7 Indemnification..................................................102
10.8 Administrative Agent and Other Managing Agents in Their
Individual Capacities..........................................103
10.9 Successor Administrative Agent...................................103
10.10 Issuing Lender...................................................103
10.11 Releases of Guarantees and Collateral............................103
10.12 Foreign Pledge Agreement.........................................104
SECTION 11. MISCELLANEOUS....................................................104
11.1 Amendments and Waivers...........................................104
11.2 Notices..........................................................106
11.3 No Waiver; Cumulative Remedies...................................107
11.4 Survival of Representations and Warranties.......................107
11.5 Payment of Expenses and Taxes....................................107
11.6 Successors and Assigns; Participations and Assignments...........108
11.7 Adjustments; Set-off.............................................111
11.8 Counterparts.....................................................111
11.9 Severability.....................................................112
11.10 Integration......................................................112
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11.11 GOVERNING LAW....................................................112
11.12 Submission To Jurisdiction; Waivers..............................112
11.13 Acknowledgments..................................................113
11.14 WAIVERS OF JURY TRIAL............................................113
11.15 Confidentiality..................................................113
11.16 Effect of Amendment and Restatement of the Prior Credit
Agreement........................................................113
11.17 Judgment.........................................................114
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SCHEDULES
A Commitments and Addresses
B Applicable Margin and Applicable Commitment Fee Rate
C Available Foreign Currencies
D Subsidiary Borrowers
5.1(a) 1998 Acquisitions
5.1(b) Exceptions to GAAP Schedule for CMI
5.4 Consents
5.14 Equipment and Inventory of Borrower and Subsidiaries
5.16 Subsidiaries and Joint Ventures
8.2(e) Permitted Indebtedness
8.3(h) Permitted Liens
8.4(a) Permitted Guarantee Obligations
8.9(j) Investment Schedule
8.10(k) Investments
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B-1 Form of Guarantee and Collateral Agreement
B-2 Form of Fee Mortgage
B-3 Form of Leasehold Mortgage
B-4 Form of Copyright, Patent and Trademark Security Agreement
C Form of Borrowing Certificate
D Form of Opinion of General Counsel to Borrower
E Form of U.S. Tax Compliance Certificate
F Form of Assignment and Acceptance
G-1 Form of Competitive Bid Request
G-2 Form of Competitive Bid Invitation
G-3 Form of Competitive Bid
G-4 Form of Competitive Bid Accept/Reject Letter
H Form of Subsidiary Borrower Agreement
I Form of Subsidiary Borrower Termination
J Form of Intercreditor Agreement
K Form of Intercreditor/Lien Subordination Agreement
L Form of Mexican Stock Pledge Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 3,
1999, among ▇▇▇▇▇ LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), CANADIAN IMPERIAL BANK OF
COMMERCE, a Canadian-chartered bank acting through its New York Agency, as
administrative agent for the Lenders and co-lead arranger, CREDIT SUISSE FIRST
BOSTON, as syndication agent for the Lenders and co-lead arranger, ▇▇▇▇▇▇▇ ▇▇▇▇▇
CAPITAL CORPORATION, a Delaware corporation, as co-documentation agent for the
Lenders, and DRESDNER BANK AG, as co-documentation agent and European Swing Line
Administrator for the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the several banks and other financial
institutions from time to time parties thereto, Canadian Imperial Bank of
Commerce, as administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as
documentation agent, and Dresdner Bank AG, as European swing line administrator,
are parties to that certain Second Amended and Restated Credit Agreement, dated
as of June 12, 1998 (the "Prior Credit Agreement"), providing for certain term
loans, revolving credit loans and other extensions of credit described therein;
WHEREAS, the Borrower has requested that the Lenders continue and
increase certain commitments, loans and other extensions of credit under the
Prior Credit Agreement, in part, to fund the acquisition (the "Acquisition") by
the Borrower of all the issued and outstanding capital stock of CMI
International, Inc. ("CMI") from the current stockholders thereof for aggregate
cash consideration (including the refinancing of existing indebtedness of CMI)
of approximately $605,000,000;
WHEREAS, in connection with the Acquisition, (i) the Borrower will
obtain the credit facilities provided for herein, (ii) each of the Borrower's
and CMI's existing senior secured credit facilities and certain of CMI's other
outstanding indebtedness (the "Refinanced Debt") will be continued or refinanced
and (iii) the Borrower will pay fees and expenses in connection with the
foregoing (the Acquisition and the foregoing transactions are collectively
referred to herein as the "Transactions");
WHEREAS, the Lenders are willing (a) to provide a senior secured
revolving credit facility in an aggregate principal amount of $650,000,000, of
which up to $100,000,000 will be available in certain currencies (including euro
units) other than U.S. dollars, up to $130,000,000 will be available in the form
of letters of credit, up to $75,000,000 will be available pursuant to a
competitive bid facility and up to $100,000,000 will be available pursuant to a
swing line facility and (b) to make term loans in an aggregate principal amount
of
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$450,000,000, of which up to the dollar equivalent amount of $100,000,000 may be
denominated in Deutschemarks or euro units upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree that, effective on
the Closing Date, the Prior Credit Agreement shall be amended and restated to
read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such terms to be equally applicable to the
singular and plural forms thereof):
"ABR Loans": Loans the rate of interest applicable to which is based
upon the CIBC Alternate Base Rate.
"Acquisition": as defined in the recitals hereto.
"Administrative Agent": CIBC, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement and the other Loan Documents.
"Adjustment Date": the second Business Day following receipt by the
Lenders of both (i) the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, for the most
recently completed fiscal period and (ii) the related Compliance
Certificate required to be delivered pursuant to subsection 7.2(b) with
respect to such fiscal period.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Outstanding Revolving Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum (calculated in accordance
with subsection 4.6(b)) of (a) the aggregate principal Dollar Equivalent
Amount of all Revolving Credit Loans made by such Revolving Credit Lender
then outstanding, (b) such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the Dollar Equivalent Amount of the L/C
Obligations then outstanding and (c) such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the aggregate principal Dollar
Equivalent Amount of (I) the Competitive Loans then outstanding and (II)
the Swing Line Loans (including Foreign Currency Swing Line Commitments as
provided for in subsection 2.6(b)) then outstanding.
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"Aggregate Revolving Credit Outstandings": at any time, an amount
equal to the sum (calculated in accordance with subsection 4.6(b)) of the
Dollar Equivalent Amount of (a) the aggregate then outstanding principal
amount of Revolving Credit Loans, (b) the aggregate then outstanding L/C
Obligations in respect of Letters of Credit, (c) the aggregate then
outstanding principal amount of Swing Line Loans (including Foreign
Currency Swing Line Commitments as provided for in subsection 2.6(b)) and
(d) the aggregate then outstanding principal amount of Competitive Loans.
"Agreement": this Third Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Commitment Fee Rate": during the period from the Closing
Date until the first Adjustment Date, the Applicable Commitment Fee Rate
shall equal 0.425%; on the first Adjustment Date and on each Adjustment
Date to occur thereafter the Applicable Commitment Fee Rate will be
adjusted to the applicable rate per annum set forth under the heading
"Applicable Commitment Fee Rate" on Schedule B which corresponds to the
Leverage Ratio determined from the financial statements and Compliance
Certificate relating to the end of the fiscal quarter immediately
preceding such Adjustment Date; provided, further, that in the event that
the financial statements required to be delivered pursuant to subsection
7.1(a) or (b), as applicable, and the related Compliance Certificate
required to be delivered pursuant to subsection 7.2(b), are not delivered
when due, then
(a) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable Commitment
Fee Rate increases from that previously in effect as a result of the
delivery of such financial statements and Compliance Certificate,
then the Applicable Commitment Fee Rate during the period from the
date upon which such financial statements and Compliance Certificate
were required to be delivered (without giving effect to any
applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (c) below,
be the Applicable Commitment Fee Rate as so increased;
(b) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered and the
Applicable Commitment Fee Rate decreases from that previously in
effect as a result of the delivery of such financial statements and
Compliance Certificate, then such decrease in the Applicable
Commitment Fee Rate shall not become applicable until the date upon
which such financial statements and Compliance Certificate actually
are delivered; and
(c) if such financial statements and Compliance Certificate
are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from
the date upon which such financial statements and Compliance
Certificate were required to be delivered (after the expiration of
the applicable cure period) until two Business Days following the
date upon
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which such financial statements and Compliance Certificate actually
are delivered, the Applicable Commitment Fee Rate shall be 0.50% per
annum.
"Applicable Margin": as applied to a given Type of Loan, the rate
per annum determined as follows: during the period from the Closing Date
until the first Adjustment Date, the Applicable Margin in respect of ABR
Loans shall be .50% per annum, and the Applicable Margin in respect of
Eurocurrency Loans shall be 2.00% per annum in respect of Revolving Credit
Loans and Term Loans; and on the first Adjustment Date and on each
Adjustment Date to occur thereafter the Applicable Margin will be adjusted
to the applicable rate per annum set forth under the heading "Applicable
Margin" on Schedule B which corresponds to the Leverage Ratio determined
from the financial statements and Compliance Certificate relating to the
end of the fiscal quarter immediately preceding such Adjustment Date;
provided that in the event that the financial statements required to be
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the
related Compliance Certificate required to be delivered pursuant to
subsection 7.2(b), are not delivered when due, then
(a) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable Margin
increases from that previously in effect as a result of the delivery
of such financial statements and Compliance Certificate, then the
Applicable Margin in respect of the Loans during the period from the
date upon which such financial statements and Compliance Certificate
were required to be delivered (without giving effect to any
applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (c) below,
be the Applicable Margin as so increased;
(b) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered and the
Applicable Margin decreases from that previously in effect as a
result of the delivery of such financial statements and Compliance
Certificate, then such decrease in the Applicable Margin shall not
become applicable until the date upon which such financial
statements and Compliance Certificate actually are delivered; and
(c) if such financial statements and Compliance Certificate
are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from
the date upon which such financial statements and Compliance
Certificate were required to be delivered (after the expiration of
the applicable cure period) until two Business Days following the
date upon which such financial statements and Compliance Certificate
actually are delivered, in respect of ABR Loans shall be 1.00% per
annum and in respect of Eurocurrency Loans shall be 2.50% per annum.
"Arrangers": CIBC and Credit Suisse First Boston, as arrangers of
the credit facilities provided for herein.
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"Assignee": as defined in subsection 11.6(c).
"Available Foreign Currencies": the currencies set forth on Schedule
C, and any other available and freely convertible non-Dollar currency
selected by the Borrower and approved in writing by the Administrative
Agent and the Majority Revolving Credit Lenders (or in the case of Foreign
Currency Swing Line Loans, only the applicable Foreign Currency Swing Line
Lender).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Revolving Credit Lender's Revolving Credit Commitment at
such time over (b) such Revolving Credit Lender's Aggregate Outstanding
Revolving Credit, provided that for purposes of calculating Available
Revolving Credit Commitments under subsection 2.4(a) it shall be assumed
that no Swing Line Loans and no Competitive Loans are then outstanding and
that no Foreign Currency Swing Line Commitments have been extended;
collectively, as to all the Lenders, the "Available Revolving Credit
Commitments".
"Board": the Board of Governors of the Federal Reserve System or any
successor thereto.
"Borrower": as defined in the preamble hereto; provided that, where
the term "Borrower" is used in any context that provides for more than one
Borrower, it is understood that such reference shall include each Person
included in the term "Borrowers".
"Borrower Guarantee": the Guarantee provided by the Borrower in
subsection 2.11, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Notes": the 9-1/4% Senior Notes of the Borrower due
November 15, 2002, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"Borrowers": collectively, the Borrower and any Subsidiary Borrower.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.6, 2.7, 2.9 or 3.2 as a date on which the Borrower
requests that Loans be made hereunder or an Issuing Lender to issue a
Letter of Credit hereunder.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency is to be made, a payment is
to be made in respect of such Loan, an Exchange Rate is to be set in
respect of an Available Foreign Currency or any other dealing in an
Available Foreign Currency is to be carried out pursuant to this
Agreement, such term shall mean a London Banking Day which is also a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of such Available Foreign
Currency, (b) when such term is used to
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describe a day on which a request is to be made to an Issuing Lender for
issuance of a Letter of Credit or on which a Letter of Credit is to be
issued, such term shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in the city in which such Issuing Lender's
issuing office is located are authorized or required by law to close, (c)
when such term is used in any context in this Agreement, such term shall
mean a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (d)
when such term is used in relation to any matter relating to euros or euro
units, such term shall mean a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System is operating.
"Capital Expenditure": as defined in subsection 8.8.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and time deposits with maturities of one year or less from the
date of acquisition and overnight bank deposits and demand deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2
by Standard and Poor's Ratings Services ("S&P") or P-2 by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"), (e) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth
or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's, (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of
this definition, (g) in the case of any Foreign Subsidiary, (i) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), (ii) deposits, obligations or securities of the
type and maturity described in clauses (b) through (f) above of foreign
obligors, which deposits, obligations or securities or obligors (or the
parent entities of such obligors) have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies or (iii)
deposits, obligations or securities of the type and maturity described in
clauses (b) through (f) above of foreign obligors (or the parent entities
of such obligors), which deposits, obligations or securities or obligors
(or the parent entities of such obligors) do not have the ratings
described in such clauses or in clause (g)(ii) but which
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are comparable in investment quality to such deposits, obligations or
securities or obligors (or the parent entities of such obligors), as the
case may be, or (h) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"C/D Published Moving Rate": on any particular date, the latest
three-week moving average of daily secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market lenders, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly for
the three-week period ending on the previous Friday by the Administrative
Agent on the basis of:
(a) such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York (as adjusted
for reserves and assessments in the same manner as the C/D Quoted
Rate); or
(b) if such publication shall be suspended or terminated, the
C/D Quoted Rate determined by the Administrative Agent on the basis
of quotations for such rates by the Administrative Agent.
"C/D Quoted Rate": relative to any determination of the C/D
Published Moving Rate in circumstances when publication of the rates
referred to in clause (a) of the definition thereof has been suspended or
terminated, the rate of interest per annum determined by the
Administrative Agent to be the sum (rounded upward to the nearest 1/16th
of 1%) of:
(a) the rate obtained by dividing (i) the average (rounded
upward to the nearest 1/16th of 1%) of the bid rates quoted to the
Administrative Agent, in CIBC's secondary market at approximately
10:00 A.M., New York City time (or as soon thereafter as
practicable), from time to time by three certificate of deposit
dealers of recognized standing selected by the Administrative Agent
in its reasonable discretion for the purchase at face value of
three-month certificates of deposit of CIBC in an amount
approximately equal or comparable to the amount of CIBC's portion of
the Loans outstanding hereunder with respect to which the C/D Quoted
Rate is being determined by (ii) a percentage equal to 100% minus
the average of the daily percentages specified during such period by
the Board for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve requirement)
for a member bank of the Federal Reserve System in respect of
liabilities consisting of or including (among other liabilities)
three-month Dollar nonpersonal time deposits in the United States;
and
(b) the daily average during such period of the net annual
assessment rates estimated by the Administrative Agent for
determining the then current annual assessment payable by CIBC to
the Federal Deposit Insurance Corporation for insuring Dollar
deposits of CIBC in the United States.
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"Change of Control": any of the following events: (a) at any time
prior to the occurrence of (i) the "senior secured bank loan rating" of
the Borrower achieving a rating of an equivalent of at least BBB- by S&P
and a rating of an equivalent of at least Baa3 by Moody's, (ii) the
Leverage Ratio as of the end of the most recently ended fiscal quarter of
the Borrower not being greater than 3.50 to 1.00, as determined from the
financial statements and shown on the Compliance Certificate delivered for
such fiscal quarter pursuant to subsection 7.1(a) or 7.1(b), as
applicable, and subsection 7.2(b), respectively, or (iii) at least 17.5%
in the aggregate of the Borrower's outstanding common stock, determined on
a fully diluted basis, shall have been issued pursuant to one or more
public offerings, JLL and its Affiliates are the beneficial owners (as
defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of less than 10% of the outstanding common stock
of the Borrower, determined on a fully diluted basis; (b) at any time, any
Person (including such Person's Affiliates and associates), other than the
New Borrower Investors or any underwriter of a public offering of the
Borrower's common stock, is the beneficial owner of more than 30% of the
total voting power of the outstanding common stock of the Borrower,
determined on a fully diluted basis, and the New Borrower Investors are in
the aggregate the beneficial owner of a lesser percentage of the total
voting power of the outstanding common stock of the Borrower, determined
on a fully diluted basis, than such other Person and does not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the
Borrower; (c) during any period of two consecutive years, individuals who
at the beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose election by such board of
directors or whose nomination for election by the shareholders of the
Borrower has been approved by 66-2/3% of the directors then still in
office who either were directors at the beginning of such period or whose
election or recommendation for election was previously so approved) cease
to constitute a majority of the board of directors of the Borrower; or (d)
a "Change of Control" as defined in any of the Senior Subordinated Note
Indentures shall have occurred.
"CIBC": Canadian Imperial Bank of Commerce, a Canadian-chartered
bank, acting through its New York Agency.
"CIBC Alternate Base Rate": on any particular date, a rate of
interest per annum equal to the highest of:
(a) the rate of interest most recently announced by CIBC as
its base rate (the "CIBC Prime Rate");
(b) the Federal Funds Rate for such date plus 1/2 of 1%; and
(c) the CD Published Moving Rate most recently determined by
CIBC plus 1%.
The CIBC Alternate Base Rate is not necessarily intended to be the lowest
rate of interest charged by CIBC in connection with extensions of credit.
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"Clean-Down Amount": $300,000,000.
"Closing Date": the date on which the conditions precedent set forth
in subsection 6.1 shall be satisfied.
"CMI": as defined in the recitals hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Documentation Agents": ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Dresdner Bank AG, as
co-documentation agents for the Lenders under this Agreement and the other
Loan Documents.
"Collateral": all assets (including assets constituting shares of
Capital Stock) of the Loan Parties, now owned or hereinafter acquired,
upon which a Lien is purported to be created by any Security Document.
"Commitments": collectively, the Revolving Credit Commitments, the
Dollar Swing Line Commitment, the L/C Commitment and the Term Loan
Commitments; individually, a "Commitment".
"Commitment Percentage": as to any Lender, prior to the Closing
Date, the percentage of the aggregate Revolving Credit Commitments and the
Term Loan Commitments constituted by such Lender's Revolving Credit
Commitment and Term Loan Commitment, or following the Closing Date, the
percentage representing a fraction the numerator of which is the sum of
(i) the aggregate principal amount of such Lender's Term Loans then
outstanding plus (ii) the Revolving Credit Commitment of such Lender (or,
following the termination or expiration of the Revolving Credit
Commitments, the sum of (x) the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding plus (y) such Lender's
Revolving Commitment Percentage of all L/C Obligations and Swing Line
Loans then outstanding), and the denominator of which is the sum of (i)
the aggregate principal amount of Term Loans of all Lenders then
outstanding plus (ii) the aggregate Revolving Credit Commitments of all
Lenders (or, following the termination or expiration of the Revolving
Credit Commitments, the sum of (x) the aggregate principal amount of all
Revolving Credit Loans then outstanding plus (y) the aggregate principal
amount of all L/C Obligations and Swing Line Loans then outstanding).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Competitive Bid": an offer by a Lender to make a Competitive Loan
pursuant to subsection 2.7 in the form of Exhibit G-3.
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"Competitive Bid Accept/Reject Letter: a notification made by the
Borrower pursuant to subsection 2.7(d) in the form of Exhibit G-4.
"Competitive Bid Rate": as to any Competitive Bid made by a Lender
pursuant to subsection 2.7(b), (a) in the case of a Eurocurrency Loan, the
Margin and (b) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection 2.7
in the form of Exhibit G-1.
"Competitive Loan": a Loan from a Lender to the Borrower pursuant to
the bidding procedure described in subsection 2.7. Each Competitive Loan
shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Note": as defined in subsection 2.7(h).
"Compliance Certificate": as defined in subsection 7.2(b).
"Consolidated": when used in connection with any financial
statements required to be delivered pursuant to subsection 7.1, means such
term as it applies to the Borrower and its Subsidiaries on a consolidated
basis, after eliminating all intercompany items.
"Consolidating": when used in connection with any financial
statements required to be delivered pursuant to subsection 7.1, means such
term as it applies to the individual business segments of the Borrower and
its Subsidiaries on a stand-alone basis.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Copyright, Patent and Trademark Security Agreement": the Third
Amended and Restated Copyright, Patent and Trademark Security Agreement to
be executed and delivered by the Borrower and certain Domestic
Subsidiaries of the Borrower, substantially in the form of Exhibit B-4, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Currency" or "Currencies": collectively, Dollars and Available
Foreign Currencies.
"Current Assets": on any date, with respect to the Borrower and its
Subsidiaries on a consolidated basis, all assets of the Borrower and its
Subsidiaries on such date which would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrower as "current
assets".
"Current Liabilities": on any date, with respect to the Borrower and
its Subsidiaries on a consolidated basis, all liabilities of the Borrower
and its Subsidiaries on
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such date which, in accordance with GAAP, would be classified on a
consolidated balance sheet of the Borrower as "current liabilities".
"December 1998 Senior Subordinated Notes": the Senior Subordinated
Notes due 2008 of the Borrower in an aggregate principal amount of
$250,000,000 issued pursuant to the December 1998 Senior Subordinated
Notes Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"December 1998 Senior Subordinated Notes Indenture": the Indenture
dated as of December 14, 1998 between the Borrower and The Bank of New
York, as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) any amount of any
currency other than Dollars on any date, the equivalent amount in Dollars
of such amount of currency as determined by the Administrative Agent in
accordance with subsection 4.6(b) using the applicable Exchange Rate and
(ii) any amount in Dollars, such amount.
"Dollar Indebtedness": at any time, any Indebtedness then
denominated in Dollars.
"Dollar Letters of Credit": at any time, all Letters of Credit then
denominated in Dollars.
"Dollar Refunding Amount": as defined in subsection 2.6(e)(i).
"Dollar Revolving Credit Loans": Revolving Credit Loans denominated
in Dollars.
"Dollar Term Loans": Term Loans denominated in Dollars.
"Dollar Swing Line Commitment": the Dollar Swing Line Lender's
obligation to make Dollar Swing Line Loans pursuant to subsection 2.6(a)
in an aggregate principal amount not to exceed $100,000,000 at any time.
"Dollar Swing Line Lender": Dresdner Bank AG, in its capacity as
provider of Dollar Swing Line Loans.
"Dollar Swing Line Loans": as such term is defined in subsection
2.6(a).
"Dollars" and "$": dollars in lawful currency of the United States.
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"Domestic Subsidiary": any Subsidiary organized under the laws of
any jurisdiction within the United States.
"EBITDA": for any period, with respect to the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP,
an amount equal to the sum of (without duplication) (a) Net Income for
such period, plus (b) income taxes, excluding income taxes (either
positive or negative) attributable to extraordinary and non-recurring
gains or losses or sales or other dispositions of assets permitted under
subsection 8.6, plus (c) Interest Expense for such period, plus (d)
depreciation for such period, plus (e) amortization for such period, plus
(f) any other non-cash items (including minority interests) reducing Net
Income for such period, plus (g) restructuring charges and costs (whether
cash or non-cash) for such period to the extent not added back to Net
Income, plus (h) amortization of deferred financing costs and expenses for
such period, plus (i) for any period from January 31, 1998 through July
31, 1999, up to $5,000,000 of losses incurred by a joint venture owned in
part by the Borrower or a Subsidiary which joint venture becomes a
Subsidiary during such period minus (j) all non-cash items increasing Net
Income for such period.
For the purposes of calculating EBITDA for any period of four
consecutive fiscal quarters (each, a "Reference Period") pursuant to any
determination of the Leverage Ratio, (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any
Material Disposition, the EBITDA for such Reference Period shall be
reduced by an amount equal to the EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such
Reference Period or increased by an amount equal to the EBITDA (if
negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period the Borrower or any Subsidiary shall have
made a Material Acquisition, EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period. As used in
this definition, "Material Acquisition" means any acquisition of property
or series of related acquisitions of property that (a) constitutes assets
comprising all or substantially all of an operating unit of a business or
Person or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration (including the
assumption of debt) by the Borrower and its Subsidiaries in excess of
$5,000,000; and "Material Disposition" means any Disposition of property
or series of related Dispositions of property that yields gross proceeds
to the Borrower or any of its Subsidiaries in excess of $1,000,000.
For purposes of calculating EBITDA for any period of four
consecutive fiscal quarters that commences prior to the Closing Date, the
Borrower may exclude certain expenses incurred by CMI and its Subsidiaries
prior to the Closing Date that are not reasonably expected to continue
after the Closing Date and that resulted from payments by them to
affiliates of CMI not being acquired by the Borrower as part of the
Acquisition.
"EMU legislation": legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified
European currency
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(whether known as the euro or otherwise), being in part the implementation
of the third stage of EMU.
"Environmental Costs": any and all costs or expenses (including,
without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, fines, penalties, damages, settlement payments,
judgments and awards), of whatever kind or nature, contingent or
otherwise, arising out of, or in any way relating to, any violation of,
noncompliance with or liability under any Environmental Laws or any
orders, requirements, demands, or investigations of any person related to
any Environmental Laws. Environmental Costs include any and all of the
foregoing, without regard to whether they arise out of or are related to
any past, pending or threatened proceeding of any kind.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any foreign
government, the United States, or any state, local, municipal or other
Governmental Authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any
time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro": the single currency of participating member states of the
European Union.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean of the
offered rates for deposits in the applicable Currency with a term
comparable to such Interest Period that appears on the Dow ▇▇▇▇▇ Market
Service British Bankers Assoc. Interest Settlement Rates Page (as defined
below) at approximately 11:00 A.M., London time, on the second full
Business Day preceding the first day of such Interest Period; provided
that if there shall at any time no longer exist a Dow ▇▇▇▇▇ Market Service
British Bankers Assoc. Interest Settlement Rates Page, "Eurocurrency Base
Rate" shall mean, with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum equal to the rate at
which CIBC is offered deposits in the applicable Currency at or about
10:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of its
Eurocurrency Loans are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of its Eurocurrency Loan to be outstanding
during such
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Interest Period. "Dow ▇▇▇▇▇ Market Service British Bankers Assoc. Interest
Settlement Rates Page" shall mean the display designated as Page 3750 (or
Page 3740 in the case of French Francs, U.K. Pounds Sterling and
Deutschemarks) on the Dow ▇▇▇▇▇ Market Service System Incorporated Service
(or such other page as may replace such page on such service for the
purpose of displaying the rates at which deposits in the applicable
Currency are offered by leading banks in the London interbank deposit
market). If the Administrative Agent determines that there is no
Eurocurrency Base Rate displayed on the screen for deposits denominated in
the national currency unit in which any Loans are denominated, the
Eurocurrency Base Rate for such Loans shall be based upon the rate
displayed on the screen for the offering of deposits denominated in euro
units.
"Eurocurrency Competitive Loan": any Competitive Loan bearing
interest at a rate determined by reference to the Eurocurrency Rate in
accordance with the provisions of subsection 2.7.
"Eurocurrency Loan": any Eurocurrency Competitive Loan or
Eurocurrency Standby Loan.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurocurrency Revolving Credit Loan": any Revolving Credit Loan
(other than a Competitive Loan) bearing interest at a rate determined by
reference to the Eurocurrency Rate in accordance with the provisions of
subsection 4.1(a).
"Eurocurrency Standby Loan": any Loan (other than a Competitive
Loan) bearing interest at a rate determined by reference to the
Eurocurrency Rate in accordance with the provisions of subsection 4.1(a).
"European Swing Line Administrator": Dresdner Bank AG.
"euro unit ": the currency unit of the euro.
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"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any fiscal year of the Borrower
and its Subsidiaries, on a consolidated basis, an amount equal to (a) Net
Income for such fiscal year, plus (b) amortization and depreciation for
such fiscal year, plus (c) extraordinary or non-recurring losses for such
fiscal year, minus (d) extraordinary or non-recurring gains for such
fiscal year, minus (e) Capital Expenditures made in accordance with
subsection 8.8 during such fiscal year, minus (f) payments of principal on
Indebtedness resulting in a permanent reduction of such Indebtedness made
during such fiscal year, minus (g) amounts arising from sales of assets
permitted by subsection 8.6 during such fiscal year to the extent included
in Net Income and paid to the Lenders as a mandatory prepayment pursuant
to subsection 4.3(c), minus (h) Investments made in accordance with
subsections 8.9(c) and (g) during such fiscal year, minus (i) plant
closing and restructuring costs and charges during such fiscal year, minus
(j) pension plan expense to the extent not reducing Net Income for such
fiscal year, minus (k) increases in Working Capital for such fiscal year,
plus (l) decreases in Working Capital for such fiscal year in excess of
$40,000,000.
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Rate": with respect to any currency other than Dollars on
any date, the rate at which such currency may be exchanged into Dollars,
as set forth on such date on the relevant FWDS Series Reuters currency
page at or about 11:00 A.M. New York City time on such date. In the event
that such rate does not appear on any such Reuters page, the "Exchange
Rate" with respect to such currency shall be determined by reference to
such other publicly available service for displaying exchange rates as may
be agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, such "Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market where
its currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 A.M. local time at such date for the
purchase of Dollars with such currency for delivery two Business Days
later; provided that if at the time of any such determination no such spot
rate can reasonably be quoted, the Administrative Agent may use any
reasonable method (including obtaining quotes from three or more market
makers for such currency) as it deems appropriate to determine such rate
and such determination shall be conclusive absent manifest error (without
prejudice to the determination of the reasonableness of such method).
"Federal Funds Rate": for any particular date, an interest rate per
annum equal to the interest rate (rounded upwards, if necessary, to the
nearest 1/16th of 1%) offered in the interbank market to the
Administrative Agent as the overnight Federal Funds Rate at or about 10:00
A.M. New York City time on such day (or if such day is not a Business Day,
for the next preceding Business Day).
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"Fee Letter": the Fee Letter dated as of December 16, 1998 among
CIBC, Credit Suisse First Boston and the Borrower, as amended,
supplemented or otherwise modified from time to time.
"Fee Mortgages": the Fee Mortgages executed and delivered by the
Borrower and certain Domestic Subsidiaries, substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": as of the end of each fiscal quarter
of the Borrower, for the twelve month period ending on such date, with
respect to the Borrower and its Subsidiaries on a consolidated basis, the
ratio of (a) EBITDA for the applicable period, minus an amount equal to
the Capital Expenditures for the applicable period, provided that for any
period from January 31, 1998 through July 31, 1999 up to $5,000,000 of
Capital Expenditures made by a joint venture owned in part by the Borrower
or a Subsidiary which joint venture becomes a Subsidiary during such
period shall be excluded from such amount to (b) the sum of (i) cash
Interest Expense for the applicable period, plus (ii) scheduled payments
of principal on the Term Loans for the applicable period.
"Fixed Rate Loan": any Competitive Loan bearing interest at a fixed
percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"Foreign Currency Competitive Loans": Competitive Loans demonstrated
in a Currency other than Dollars.
"Foreign Currency Letters of Credit": at any time, all Letters of
Credit then denominated in an Available Foreign Currency.
"Foreign Currency Revolving Credit Loans": at any time, all
Revolving Credit Loans then denominated in an Available Foreign Currency.
"Foreign Currency Subfacility Amount": $100,000,000 or, if less, the
aggregate amount of the Revolving Credit Commitments then in effect.
"Foreign Currency Sublimit Outstandings": at any time, the sum,
without duplication, of the Dollar Equivalent Amount of (a) the aggregate
then outstanding principal amount of Foreign Currency Revolving Credit
Loans, (b) the aggregate then outstanding principal amount of Foreign
Currency Competitive Loans and (c) the aggregate then outstanding amount
of L/C Obligations in respect of Foreign Currency Letters of Credit.
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"Foreign Currency Swing Line Commitment": as defined in subsection
2.6(b).
"Foreign Currency Swing Line Lender": the European Swing Line
Administrator (including any branch or affiliate thereof) and any other
Lender (including CIBC) that, with the consent of the Borrower and the
Administrative Agent, agrees to make Foreign Currency Swing Line Loans
hereunder, in its capacity as a provider of such Foreign Currency Swing
Line Loans.
"Foreign Currency Swing Line Loan Agreement": as defined in
subsection 2.6(b).
"Foreign Currency Swing Line Loans": as defined in subsection
2.6(b).
"Foreign Currency Swing Line Subfacility Amount": $100,000,000.
"Foreign Stock Pledge Agreements": collectively, the Mexican Stock
Pledge Agreement and each of the other Stock Pledge Agreements executed
and delivered by the Borrower and certain of its Domestic Subsidiaries in
connection with the Initial Credit Agreement, the Prior Credit Agreement
or this Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Foreign Subsidiary": any Subsidiary organized under the laws of any
jurisdiction outside the United States.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including, without limitation, all current maturities and
current sinking fund payments in respect of such Indebtedness whether or
not required to be paid within one year from the date of its creation (the
"Current Portion of Funded Debt") and, in the case of the Borrower,
Indebtedness in respect of the Loans.
"GAAP": generally accepted accounting principles in the United
States consistent with those utilized in preparing the audited financial
statements referred to in subsection 5.1; provided that for purposes of
subsection 7.1 GAAP shall mean generally accepted accounting principles in
the United States as in effect at the time of the applicable financial
statements.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity (including, without
limitation, any central bank) exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government. For
purposes of subsections 4.9, 4.10 and 11.15, the term "Governmental
Authority" shall be deemed to include, without limitation, the National
Association of Insurance Commissioners.
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"Guarantee": as defined in the definition of "Guarantor."
"Guarantee and Collateral Agreement": the Third Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the
Borrower and each of its material Domestic Subsidiaries, substantially in
the form of Exhibit B-1, as the same may be amended, supplemented or
otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing 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 (1) for the purchase or payment of any such
primary obligation or (2) 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 owner
of any such primary obligation against loss in respect thereof; provided
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Guarantor": any Person which is now or hereafter a party to (a) the
Guarantee and Collateral Agreement or (b) any other guarantee (a
"Guarantee") hereafter delivered to the Administrative Agent guaranteeing
the obligations and liabilities of each of the Loan Parties hereunder or
under any other Loan Documents, including, without limitation, any
guarantee delivered pursuant to subsection 7.10.
"Guarantor Subsidiaries": each of the Guarantors that is a
Subsidiary of the Borrower.
"HLI Sub": HL Holding Germany GmbH, a limited liability company
under the laws of the Federal Republic of Germany.
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"IKB": IKB Deutsche Industriebank.
"Indebtedness": at any date, an amount equal to (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(e) for purposes of subsections 8.2 and Section 9(e), all obligations of
such Person in respect of interest rate protection agreements, interest
rate futures, interest rate options, interest rate caps and any other
interest rate, currency, commodity or other hedging arrangement, (f) all
liabilities of another Person secured by any Lien on any property owned by
such Person whether or not such Person has assumed or otherwise become
liable for the payment thereof and (g) the net investment paid by the
purchasers to the Borrower or any Subsidiary under a Permitted Receivables
Financing.
"Initial Credit Agreement": the Credit Agreement, dated as of June
27, 1996, among the Borrower, the several banks and other financial
institutions from time to time parties thereto, Canadian Imperial Bank of
Commerce, as administrative agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation,
as documentation agent.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement dated as of
April 30, 1998, substantially in the form of Exhibit J, as the same may be
amended, supplemented or otherwise modified from time to time.
"Intercreditor/Lien Subordination Agreement": the Intercreditor and
Lien Subordination Agreement dated as of September 30, 1998, substantially
in the form of Exhibit K, as the same may be amended, supplemented or
otherwise modified from time to time.
"Interest Coverage Ratio": as of the end of each fiscal quarter of
the Borrower for the twelve month period ending on such date, with respect
to the Borrower and its Subsidiaries on a consolidated basis, the ratio of
(a) EBITDA for the applicable period to (b) cash Interest Expense for the
applicable period.
"Interest Expense": for any period and without duplication, with
respect to the Borrower and its Subsidiaries on a consolidated basis, (a)
the aggregate amount of interest which would be set forth opposite the
caption "interest expense" or any like caption on an income statement for
the Borrower and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, for such period plus, to the extent not included in
such interest, (i) imputed interest included in Financing Leases for such
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period, (ii) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing
permitted by subsection 8.2 for such period; (iii) the net payments made
in connection with Interest Rate Protection Agreements for such period,
(iv) the interest portion of any deferred payment obligation for such
period, (v) amortization of discount or premium, if any, for such period,
(vi) all other non-cash interest expense (other than interest amortized to
cost of sales) for such period, (vii) all net capitalized interest for
such period and (viii) all interest paid under any Guarantee Obligation,
minus (b) net payments received in connection with Interest Rate
Protection Agreements for such period, minus (c) amortization of deferred
financing costs and expenses for such period.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each April, July, October and January, (b) as to any Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period, and (c) as to any Eurocurrency Loan having an Interest
Period longer than three months or a Fixed Rate Loan with an Interest
Period of more than 90 days' duration, each day which is three months or
90 days, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurocurrency Loan (i)
initially, the period commencing on the borrowing or conversion date, as
the case may be, with respect to such Eurocurrency Loan and ending one,
two, three or six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto and (b) with respect to any
Fixed Rate Loan, the period commencing on the date of such Loan and ending
on the date specified in the Competitive Bids in which the offers to make
the Fixed Rate Loans were extended, which shall not be earlier than seven
days after the date of such Loan or later than 360 days after the date of
such Loan;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency
Loans only, the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond (a)
the Revolving Credit Commitment Termination Date (in the case of
Revolving Credit Loans) shall end on the Revolving Credit Commitment
Termination Date, or (b)
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the Term Loan Maturity Date (in the case of the Term Loans) shall
end on the Term Loan Maturity Date;
(3) any Interest Period pertaining to a Eurocurrency Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Loan during an Interest
Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap
or collar or other interest rate hedge arrangement, to or under which the
Borrower or any of its Subsidiaries is a party or a beneficiary on the
Closing Date or becomes a party or a beneficiary after the Closing Date.
"Investment": as defined in subsection 8.9.
"Issuing Lender": CIBC or any of its affiliates, and any other
Lender appointed by the Borrower and CIBC, with the consent of such
Lender, in its capacity as issuer of Letters of Credit hereunder.
"JLL": ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Levy Fund II, L.P., a Delaware limited
partnership, or any other fund controlled by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇.
"July 1996 Senior Subordinated Notes": the Senior Subordinated Notes
due 2006 of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the July 1996 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"July 1996 Senior Subordinated Notes Indenture": the Indenture dated
as of June 27, 1996 between the Borrower and First Trust National
Association as successor to Comerica Bank, as trustee, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with subsection 8.10.
"July 1997 Senior Subordinated Notes": the Senior Subordinated Notes
due 2007 of the Borrower in an aggregate principal amount of $150,000,000
issued pursuant to the July 1997 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"July 1997 Senior Subordinated Notes Indenture": the Indenture dated
as of July 22, 1997 between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 8.10.
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"June 1997 Senior Subordinated Notes": the Senior Subordinated Notes
due 2007 of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the June 1997 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"June 1997 Senior Subordinated Notes Indenture": the Indenture dated
as of June 30, 1997 between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 8.10.
"L/C Commitment": $130,000,000.
"L/C Fee Payment Date": the last day of each April, July, October
and January.
"L/C Obligations": at any date, the sum of (a) the aggregate amount
then available to be drawn under all outstanding Letters of Credit and (b)
the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed by the Borrower pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of Credit,
collectively, all the Revolving Credit Lenders other than the Issuing
Lender with respect thereto.
"L/C Participating Interest": with respect to any Letter of Credit
(a) in the case of the Issuing Lender with respect thereto, its interest
in such Letter of Credit and any Letter of Credit Application relating
thereto after giving effect to the granting of participating interests
therein, if any, pursuant hereto and (b) in the case of each L/C
Participant, its undivided participating interest in such Letter of Credit
and any Letter of Credit Application relating thereto.
"Lease Expense": for any period, the aggregate amount of fixed and
contingent rentals payable by the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, with
respect to leases (other than Financing Leases) of real and personal
property.
"Leasehold Mortgages": the Leasehold Mortgages executed and
delivered by the Borrower and certain Domestic Subsidiaries of the
Borrower, substantially in the form of Exhibit B-3, as the same may be
amended, supplemented or otherwise modified from time to time.
"Lemmerz": Lemmerz Holding GmbH.
"Lemmerz Shareholders": ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇.
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"Lenders": as defined in the preamble hereto and including, without
limitation, the Dollar Swing Line Lender, the Foreign Currency Swing Line
Lenders and each Issuing Lender.
"Letters of Credit": as defined in subsection 3.1.
"Letter of Credit Application": an application in such form as the
applicable Issuing Lender may specify from time to time requesting such
Issuing Lender to open a Letter of Credit.
"Leverage Ratio": as of the end of each fiscal quarter of the
Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) Total Indebtedness on such date
(provided that, for purposes of this definition, Total Indebtedness shall
include Indebtedness described in clause (g) of the definition of such
term only to the extent that the aggregate Dollar Equivalent Amount
thereof exceeds $250,000,000) to (b) EBITDA for the twelve month period
ending on such date.
"Lien": any mortgage, pledge, hypothecation, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, any Notes, any Letter of Credit
Applications, any Letters of Credit, any Foreign Currency Swing Line Loan
Agreement (and any documents or agreements executed in connection
therewith), the Security Documents and any Guarantees.
"Loan Parties": the Borrowers and each Subsidiary which is a party
to a Loan Document, individually, a "Loan Party".
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 50%.
"Majority Revolving Credit Lenders": Revolving Credit Lenders the
Revolving Credit Commitment Percentages of which aggregate more than 50%.
"Managing Agents": collectively, the Administrative Agent,
Syndication Agent and the Co- Documentation Agents.
"Margin": as to any Eurocurrency Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to four
decimal
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places) to be added to, or subtracted from, the Eurocurrency Rate to
determine the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos or
asbestos-containing materials, pollutants, contaminants, radioactivity,
and any other substances of any kind, whether or not any such substance is
defined as hazardous or toxic under any Environmental Law, that is
regulated pursuant to or could give rise to liability under any
Environmental Law.
"▇▇▇▇▇▇▇ ▇▇▇▇▇": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
"Mexican Stock Pledge Agreement": the Pledge Agreement made by
CMI-Texas, Inc. in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit L, as the same may be
amended, supplemented or otherwise modified from time to time.
"▇▇▇▇▇'▇": as defined in the definition of "Cash Equivalents."
"Mortgages": collectively, the Fee Mortgages and the Leasehold
Mortgages.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"national currency unit": the unit of currency (other than a euro
unit) of a participating member state.
"Net Cash Proceeds": (a) with respect to any sale or other
disposition of assets by the Borrower or any of its Subsidiaries, the net
amount equal to the aggregate amount received in cash (including any cash
received by way of deferred payment pursuant to a note receivable, other
non-cash consideration or otherwise, but only as and when such cash is so
received) minus the sum of (i) the reasonable fees, commissions and other
out-of-pocket expenses incurred by the Borrower or such Subsidiary in
connection with such sale or other disposition, (ii) federal, state and
local taxes incurred in connection with such sale or other disposition,
whether payable at such time or thereafter and (iii) in the case of any
such sale or other disposition of assets subject to a Lien securing any
Indebtedness (which Lien and Indebtedness are permitted by this
Agreement), any amounts required to be repaid by the Borrower or such
Subsidiary in respect of such Indebtedness (other than Indebtedness under
this Agreement and any Notes) in connection with such sale or other
disposition; and
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(b) with respect to any issuance, sale or other disposition of any
debt security by the Borrower or any of its Subsidiaries (other than to
the Borrower or any of its Subsidiaries), the net amount equal to the
aggregate amount received in cash in connection with such issuance, sale
or other disposition minus the sum of (i) the reasonable fees, commissions
and other out-of-pocket expenses incurred by the Borrower or such
Subsidiary in connection with such issuance, sale or other disposition and
(ii) federal, state and local taxes incurred in connection with such
issuance, sale or other disposition, whether payable at such time or
thereafter.
"Net Income": for any period, the aggregate of the net income of the
Borrower and its Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP, for such period; provided that there
shall be excluded from Net Income (a) the net income of a Person whose net
income is not consolidated with the Borrower's under GAAP (other than the
amount of dividends and other distributions paid or made by such Person to
the Borrower or any of its Subsidiaries during such period), (b) the net
income of any Person for such period acquired in a pooling of interests
transaction for any period prior to the date of such acquisition, (c) any
net gain or loss for such period (net of the related tax effect thereof)
resulting from any sale or other disposition of assets or any sale or
other disposition of any Capital Stock of any Person by the Borrower or
any of its Subsidiaries, in each case, other than in the ordinary course
of business and permitted by subsection 8.6, (d) extraordinary gains and
losses for such period (net of the related tax effect thereof), (e)
non-recurring gains and losses for such period (net of the related tax
effect thereof) and (f) cash returns on or on account of Investments
permitted under subsection 8.9(g); provided that there shall be added back
to Net Income non-cash restructuring charges deducted in calculating Net
Income for such period.
"New Borrower Investors": JLL, CIBC WG Argosy Merchant Fund 2,
L.L.C., TSG Capital Fund II, L.P., Tri-Links Investment Trust, Chase
Equity Associates, L.P., the Lemmerz Shareholders and their respective
Affiliates.
"Non-Dollar Indebtedness": at any time, all Indebtedness of the
Borrower and its Subsidiaries then denominated in a currency other than
Dollars.
"Non-Excluded Taxes": as defined in subsection 4.11.
"Non-Guarantor Subsidiary": any Subsidiary that is not a Guarantor
Subsidiary.
"Notes": collectively, the Revolving Credit Notes, the Swing Line
Note, the Term Notes and the Competitive Notes, if any.
"Notice of Foreign Currency Swing Line Refunding": as defined in
subsection 2.6(e)(i).
"Obligations": as defined in the Guarantee and Collateral Agreement.
"Participant": as defined in subsection 11.6(b).
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"participating member state ": each state so described in any EMU
legislation.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PBGC Agreement": the ▇▇▇▇▇ Wheels Int'l Inc. - PBGC Agreement dated
July 2, 1996 between the Borrower and the PBGC with respect to, among
other things, the funding levels of certain pension plans of the Borrower
and ▇▇▇▇▇ Lemmerz International -- Ohio, Inc., an Ohio corporation.
"Permitted Hedging Arrangement": as defined in subsection 8.15.
"Permitted Receivables Financing": a receivables financing
transaction financed in Dollars or in a currency other than Dollars on
terms and conditions that are similar to and no less favorable in any
material respects to the Lenders and the Borrower than the terms of the
receivables financing transaction entered into by the Borrower on April
30, 1998.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prior Credit Agreement": as defined in the recitals hereto.
"Refunded Dollar Swing Line Loans": as defined in subsection
2.6(d)(i).
"Register": as defined in subsection 11.6(d).
"Refinanced Debt": as defined in the recitals hereto.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lenders pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043 of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
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"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president
and the general counsel of the Borrower or, with respect to financial
matters, the chief financial officer and the treasurer of the Borrower.
"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans to, and/or make or
participate in Swing Line Loans made to, and/or issue or participate in
Letters of Credit issued on behalf of, the Borrower in an aggregate amount
not to exceed at any one time outstanding the amount set forth under such
Revolving Credit Lender's name in Schedule A opposite the heading
"Revolving Credit Commitment" or, in the case of any Lender that is an
Assignee, the amount of the assigning Lender's Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 11.6 (in each case as
such amount may be adjusted from time to time as provided herein).
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment (or, if the Revolving
Credit Commitments have terminated or expired, the percentage which (i)
the sum of the Dollar Equivalent Amount of (a) such Lender's then
outstanding Revolving Credit Loans plus (b) such Lender's interests in the
aggregate L/C Obligations and Swing Line Loans then outstanding then
constitutes of (ii) the sum of the Dollar Equivalent Amount of (a) the
aggregate Revolving Credit Loans of all the Revolving Credit Lenders then
outstanding plus (b) the aggregate L/C Obligations and Swing Line Loans
then outstanding).
"Revolving Credit Commitment Period": the period from and including
the Closing Date to but not including the Revolving Credit Commitment
Termination Date.
"Revolving Credit Commitment Termination Date": the earlier of (a)
February 15, 2005 or, if such date is not a Business Day, the Business Day
next preceding such date and (b) the date upon which the Revolving Credit
Commitments shall be terminated pursuant hereto.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment or that holds outstanding Revolving Credit Loans or L/C
Participating Interests hereunder.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
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"Securities Act": the Securities Act of 1933, as amended from time
to time.
"Security Documents": collectively, the Guarantee and Collateral
Agreement, the Borrower Guarantee, the Foreign Stock Pledge Agreements,
the Copyright, Patent and Trademark Security Agreement, the Fee Mortgages
and the Leasehold Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or
assets of any Person to secure the obligations and liabilities of the
Borrower hereunder or under any of the other Loan Documents or to secure
any guarantee of any such obligations and liabilities, including, without
limitation, any security document delivered pursuant to subsection 7.10.
"Senior Subordinated Note Indentures": collectively, the July 1996
Senior Subordinated Notes Indenture, the June 1997 Senior Subordinated
Notes Indenture, the July 1997 Senior Subordinated Notes Indenture, the
December 1998 Senior Subordinated Notes Indenture and any indenture
pursuant to which the senior subordinated notes permitted by subsection
8.2(k) are issued.
"Senior Subordinated Notes": collectively, the July 1996 Senior
Subordinated Notes, the June 1997 Senior Subordinated Notes, the July 1997
Senior Subordinated Notes, the December 1998 Senior Subordinated Notes and
any other senior subordinated notes permitted by subsection 8.2(k).
"Short-Term Indebtedness ": all Indebtedness other than (a) Funded
Debt and (b) the Current Portion of Funded Debt.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Specified Assets": those assets specified in the letter, dated as
of the date hereof, from the Borrower to the Administrative Agent
identifying certain assets of the Borrower and its Subsidiaries which the
Borrower proposes to sell.
"S&P": as defined in the definition of "Cash Equivalents."
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or other entity
("Voting Stock") are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
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"Subsidiary Borrower": at any time, any Wholly Owned Subsidiary (or
Kalyani Lemmerz Ltd so long as the Borrower and its Subsidiaries own at
least 85% of the Capital Stock of such entity) of the Borrower designated
as a Subsidiary Borrower by the Borrower and consented to by the European
Swing Line Administrator pursuant to subsection 2.6(g) that has not ceased
to be a Subsidiary Borrower pursuant to subsection 2.6(g); the Subsidiary
Borrowers as of the Closing Date are set forth on Schedule D.
"Subsidiary Borrower Agreement": a Subsidiary Borrower Agreement
substantially in the form of Exhibit H, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiary Borrower Obligations": collectively, the obligations of
each of the Subsidiary Borrowers to make due and punctual payment of
principal of, and interest on (including post-petition interest, whether
or not allowed), the Foreign Currency Swing Line Loans made to it and all
other monetary obligations of each of the Subsidiary Borrowers to the
Managing Agents, the European Swing Line Administrator or any Lender under
this Agreement or any other Loan Document.
"Subsidiary Borrower Termination": a Subsidiary Borrower Termination
substantially in the form of Exhibit I, as the same may be amended,
supplemented or otherwise modified from time to time.
"Syndication Agent": Credit Suisse First Boston, as syndication
agent for the Lenders.
"Swing Line Loans": collectively, Dollar Swing Line Loans and
Foreign Currency Swing Line Loans.
"Swing Line Note": as defined in subsection 2.6(c).
"Swing Line Lenders": collectively, the Dollar Swing Line Lender and
the Foreign Currency Swing Line Lenders.
"Term Loan": as defined in subsection 2.8.
"Term Loan Commitment": as to any Term Loan Lender, its obligation
to make a Term Loan to the Borrower in Deutschemarks or euro units
pursuant to subsection 2.8 in a Dollar Equivalent Amount equal to the
amount set forth opposite such Term Loan Lender's name in Schedule A under
the heading "Term Loan Commitment", collectively, the "Term Loan
Commitments".
"Term Loan Commitment Percentage": as to any Term Loan Lender, the
percentage of the aggregate outstanding Term Loans of all the Term Loan
Lenders constituted by such Term Loan Lender's Term Loan.
"Term Loan Lender": any Lender that holds outstanding Term Loans.
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"Term Loan Maturity Date": February 15, 2005.
"Term Note": as defined in subsection 2.9(a).
"Total Indebtedness": on any date, with respect to the Borrower and
its Subsidiaries on a consolidated basis, all Indebtedness of the Borrower
and its Subsidiaries on such date other than Indebtedness permitted by
subsection 8.2(j).
"Tranche": collectively, Eurocurrency Loans the then current
Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Transactions": as defined in the recitals hereto.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurocurrency
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time, or, with respect to
standby letters of credit, the International Standby Practices (1999),
International Chamber of Commerce Publication No. 590, as the same may be
amended from time to time.
"United States": the United States of America.
"Wholly Owned Subsidiary": means any Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares or
shares held pursuant to similar requirements of law in respect of Foreign
Subsidiaries, other than shares of Lemmerz representing not more than .01%
of the voting securities thereof and other than shares of Borlem
representing not more than 1% of the voting securities thereof) of which
are owned, directly or indirectly, by the Borrower.
"Working Capital": on any date, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the Current Assets (other than cash
and Cash Equivalents) of the Borrower and its Subsidiaries on such date,
minus the Current Liabilities (other than the current portion of long term
Indebtedness and short term Indebtedness of Foreign Subsidiaries) of the
Borrower and its Subsidiaries on such date.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes, any other Loan Documents and
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined
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in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Without prejudice to the respective liabilities of the Borrower
to the Lenders and the Lenders to the Borrower under or pursuant to this
Agreement, each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be necessary or appropriate to reflect the introduction of or
changeover to the euro in participating member states.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to continue or
make revolving credit loans (each a "Revolving Credit Loan", collectively,
"Revolving Credit Loans") to the Borrower from time to time during the Revolving
Credit Commitment Period in Dollars and/or one or more Available Foreign
Currencies so long as after giving effect thereto (i) the Available Revolving
Credit Commitment of such Revolving Credit Lender would not be less than zero,
(ii) the Aggregate Revolving Credit Outstandings would not exceed the aggregate
amount of the Revolving Credit Commitments of all the Revolving Credit Lenders,
and (iii) the then Dollar Equivalent Amount of the Foreign Currency Sublimit
Outstandings would not exceed the Foreign Currency Subfacility Amount. During
the Revolving Credit Commitment Period, the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof, provided that the Aggregate Outstanding Revolving Credit (other than in
respect of the undrawn portion of any Letters of Credit) at any time during any
consecutive thirty day period during each fiscal year of the Borrower (such
thirty day period during each fiscal year to be selected by the Borrower) may in
no event exceed the Clean-Down Amount (as certified to the Administrative Agent
pursuant to subsection 7.2(b)(iv)).
(b) The Revolving Credit Loans may from time to time be (i)
Eurocurrency Loans, (ii) ABR Loans (in the case of Dollar Revolving Credit Loans
only) or (iii) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with subsections 2.3 and 4.4, provided
that no Revolving Credit Loan shall be made as a Eurocurrency Loan after the day
that is one month prior to the Revolving Credit Commitment Termination Date.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the
request to the Administrative Agent by any Revolving Credit Lender made on or
prior to the Closing Date or in connection with any assignment pursuant to
subsection 11.6, to evidence such Lender's
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Revolving Credit Loans the Borrower will execute and deliver to such Lender a
promissory note substantially in the form of Exhibit A-1, with appropriate
insertions as to payee, date and principal amount (each, as amended,
supplemented, replaced or otherwise modified from time to time, a "Revolving
Credit Note"), payable to the order of such Lender and in a principal amount
equal to the lesser of (a) the amount set forth under such Lender's name in
Schedule A opposite the heading "Revolving Credit Commitment" and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Lender to such Borrower. Each Revolving Credit Note shall (x) be dated the
Closing Date, (y) be stated to mature on the Revolving Credit Commitment
Termination Date and (z) provide for the payment of interest in accordance with
subsection 4.1.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) four Business
Days (or three Business Days if the Revolving Credit Loans requested are to be
denominated in Dollars) prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurocurrency
Loans or (b) on the requested Borrowing Date, otherwise), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurocurrency Loans, ABR Loans or a combination thereof,
(iv) the applicable Currency and (v) if the borrowing is to be entirely or
partly of Eurocurrency Loans, the respective amount of such Type of Loan and the
respective length of the initial Interest Period therefor. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (x) in the case
of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or,
if the aggregate Available Revolving Credit Commitments then in effect are less
than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans,
an amount the then Dollar Equivalent Amount of which is $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Revolving
Credit Lender thereof. Each Revolving Credit Lender will make the amount of its
pro rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified from
time to time by the Administrative Agent prior to (i) in the case of borrowings
in Dollars, 1:00 P.M., New York City time or (ii) in the case of borrowings in
Available Foreign Currencies, 10:00 A.M., New York City time, on the Borrowing
Date requested by the Borrower in the requested Currency in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower as previously specified in writing by the Borrower to the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.4 Commitment Fees; Other Fees. (a) The Borrower agrees to pay to
the Administrative Agent, for the account of each Revolving Credit Lender, a
commitment fee for the period from and including the first day of the Revolving
Credit Commitment Period to the Revolving Credit Commitment Termination Date,
computed at the Applicable Commitment Fee Rate on the average daily amount of
the Available Revolving Credit Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
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April, July, October and January and on the Revolving Credit Commitment
Termination Date, commencing on the first of such days to occur after the
Closing Date.
(b) The Borrower shall pay to the Managing Agents and the Lenders
the amounts set forth in the Fee Letter on the dates provided for therein.
2.5 Termination or Reduction of Revolving Credit Commitments. (a)
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent (which will promptly notify the Lenders
thereof), to terminate the Revolving Credit Commitments or, from time to time,
to reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans, the Swing Line Loans and the
Competitive Loans (to the extent permitted by the applicable Lender) made on the
effective date thereof, (i) the Available Revolving Credit Commitment of each
Revolving Credit Lender would be less than zero, (ii) the Aggregate Revolving
Credit Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders or (iii) the then Dollar
Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the
Foreign Currency Subfacility Amount. Any such reduction shall be in an amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof and shall
reduce permanently the Revolving Credit Commitments then in effect.
(b) The Revolving Credit Commitments shall be automatically reduced
in connection with any reductions of the Revolving Credit Commitments in
accordance with subsection 4.3(e). Any such reduction shall reduce permanently
the Revolving Credit Commitments then in effect.
2.6 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, the Dollar Swing Line Lender agrees to make swing line loans denominated
in Dollars ("Dollar Swing Line Loans") to the Borrower from time to time during
the Revolving Credit Commitment Period in an aggregate principal amount at any
one time outstanding, when added to the Dollar Equivalent Amount of then
outstanding Foreign Currency Swing Line Commitments, not to exceed the Dollar
Swing Line Commitment, provided that no Dollar Swing Line Loan shall be required
to be made hereunder unless, after giving effect thereto, (i) the Available
Revolving Credit Commitment of each Revolving Credit Lender would not be less
than zero and (ii) the Aggregate Revolving Credit Outstandings would not exceed
the aggregate amount of the Revolving Credit Commitments of all the Revolving
Credit Lenders. Amounts borrowed by the Borrower under this subsection 2.6(a)
may be repaid and, through but excluding the Revolving Credit Commitment
Termination Date, reborrowed. All Dollar Swing Line Loans shall be made as ABR
Loans and shall not be entitled to be converted into Eurocurrency Loans. The
Borrower shall give the Dollar Swing Line Lender irrevocable notice (which
notice must be received by the Dollar Swing Line Lender prior to 12:00 Noon, New
York City time) on the requested Borrowing Date specifying the amount of the
requested Dollar Swing Line Loan which shall be in an amount equal to $500,000
or a whole multiple of $100,000 in excess thereof. The proceeds of each Dollar
Swing Line Loan will be made available on the date requested by the Dollar Swing
Line Lender to the Borrower by crediting the account of the Borrower as
specified in writing by the Borrower to the Administrative Agent with such
proceeds in Dollars.
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(b) (i) The Borrowers may, subject to the terms and conditions of
this Agreement, borrow swing line loans denominated in Available Foreign
Currencies ("Foreign Currency Swing Line Loans") from any Foreign Currency Swing
Line Lender from time to time during the Revolving Credit Commitment Period upon
the extension of a Foreign Currency Swing Line Commitment (as hereafter defined)
on such terms and conditions as may be agreed to (any such agreement, a "Foreign
Currency Swing Line Loan Agreement") by any of the Borrowers and such Foreign
Currency Swing Line Lender, including, but not limited to, the applicable
Available Foreign Currency, the procedures for the Foreign Currency Swing Line
Lender to make the proceeds of such Foreign Currency Swing Line Loans available
to such Borrower (including, without limitation, the lending installation from
which such Foreign Currency Swing Line Loan is to be made), the applicable
interest rate, the manner of calculation of the applicable interest rate, the
maximum aggregate principal Dollar Equivalent Amount of Foreign Currency Swing
Line Loans that such Foreign Currency Swing Line Lender shall commit to lend to
such Borrower in such Available Foreign Currency (such amount, a "Foreign
Currency Swing Line Commitment") and the duration of such Foreign Currency Swing
Line Commitment, provided that such terms and conditions shall not be
inconsistent with the limitations on Foreign Currency Swing Line Commitments and
Foreign Currency Swing Line Loans set forth in this subsection and elsewhere in
this Agreement. No loan made under a Foreign Currency Swing Line Commitment
shall be treated as a Foreign Currency Swing Line Loan for purposes of this
Agreement and the other Loan Documents, including, but not limited to, for the
purposes of entitling such loans to the benefits of subsection 2.6(e), unless
and until (i) the Borrower and the applicable Foreign Currency Swing Line Lender
shall have informed the Administrative Agent and the European Swing Line
Administrator in writing of the Dollar Equivalent Amount of the Foreign Currency
Swing Line Commitment of such Foreign Currency Swing Line Lender and all other
terms and conditions thereof and (ii) the European Swing Line Administrator
shall have confirmed that the Foreign Currency Swing Line Commitment to be
extended (when added to the Dollar Equivalent Amount (calculated in each case on
the date such Foreign Currency Swing Line Commitment is originally extended) of
all other Foreign Currency Swing Line Commitments then in effect) would not
exceed the Foreign Currency Swing Line Subfacility Amount. At any time, and from
time to time thereafter, subject to the terms and conditions of this Agreement,
such Borrower may borrow Foreign Currency Swing Line Loans from such Foreign
Currency Swing Line Lender in an amount equal to the then unused amount of the
Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line
Lender.
(ii) Except any determinations of the unused amount of any Foreign
Currency Swing Line Commitment for purposes of the final sentence of the
preceding paragraph, as expressly provided otherwise herein or to the extent the
context otherwise requires, in any determination of the aggregate amount of
outstanding Foreign Currency Swing Line Loans at any time for all purposes of
this Agreement and the other Loan Documents, the full Dollar Equivalent Amount
(calculated in each case on the date such Foreign Currency Swing Line Commitment
is originally extended) of each Foreign Currency Swing Line Commitment of each
Foreign Currency Swing Line Lender (other than CIBC) shall be deemed to be
outstanding as Foreign Currency Swing Line Loans, whether borrowed or not
borrowed, and only the aggregate principal Dollar Equivalent Amount of the then
outstanding Foreign Currency Swing Line Loans made by CIBC shall be included in
such determination; provided, further, that at no time shall any Foreign
Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line
Loan be made, by a Foreign Currency Swing Line Lender or accepted by any of the
Borrowers if, after
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giving effect thereto, (i) the aggregate Dollar Equivalent Amount (calculated,
in the case of each Foreign Currency Swing Line Commitment, on the date such
Foreign Currency Swing Line Commitment is originally extended) of the Foreign
Currency Swing Line Loans and of the Foreign Currency Swing Line Commitments (as
the case may be as provided for above) of all the Foreign Currency Swing Line
Lenders exceed the Foreign Currency Swing Line Subfacility Amount or (ii) the
sum of (A) the aggregate principal amount of the Dollar Swing Line Loans and (B)
aggregate Dollar Equivalent Amount (calculated, in the case of each Foreign
Currency Swing Line Commitment, on the date such Foreign Swing Line Commitment
is originally extended) of the Foreign Currency Swing Line Loans and the Foreign
Currency Swing Line Commitments (as the case may be as provided for above)
exceed the Dollar Swing Line Commitment and provided, further, however, that at
no time shall any Foreign Currency Swing Line Loan Commitment be extended, or
Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line
Lender or accepted by any of the Borrowers if, after giving effect thereto, (I)
the Available Revolving Credit Commitment of a Revolving Credit Lender would be
less than zero or (II) the Aggregate Revolving Credit Outstandings would exceed
the aggregate amount of the Revolving Credit Commitments of all the Revolving
Credit Lenders.
(c) The Borrower agrees that, upon the request to the Administrative
Agent by the Dollar Swing Line Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6, to evidence the
Dollar Swing Line Loans the Borrower will execute and deliver to the Dollar
Swing Line Lender a promissory note substantially in the form of Exhibit A-3,
with appropriate insertions (as the same may be amended, supplemented, replaced
or otherwise modified from time to time, the "Swing Line Note"), payable to the
order of the Dollar Swing Line Lender and representing the obligation of the
Borrower to pay the amount of the Dollar Swing Line Commitment or, if less, the
unpaid principal amount of the Dollar Swing Line Loans made to the Borrower by
the Dollar Swing Line Lender, with interest thereon as prescribed in subsection
4.1. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to
mature on the Revolving Credit Commitment Termination Date and (c) provide for
the payment of interest in accordance with subsection 4.1.
(d) (i) The Dollar Swing Line Lender, at any time in its sole and
absolute discretion may, and, at any time as there shall be a Dollar Swing Line
Loan outstanding for more than seven Business Days, the Dollar Swing Line Lender
shall, on behalf of the Borrower (which hereby irrevocably directs and
authorizes the Dollar Swing Line Lender to act on its behalf), request each
Revolving Credit Lender, including the Swing Line Lenders, to make a Revolving
Credit Loan as an ABR Loan in Dollars in an amount equal to such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the principal amount
of all of the Dollar Swing Line Loans (the "Refunded Dollar Swing Line Loans")
outstanding on the date such notice is given; provided that the provisions of
this subsection shall not affect the obligations of the Borrower to prepay
Dollar Swing Line Loans in accordance with the provisions of subsection 4.2.
Unless the Revolving Credit Commitments shall have expired or terminated for any
reason, including but not limited to, the occurrence of any of the events
described in paragraph (f) of Section 9 with respect to the Borrower (in which
event the procedures of paragraph (d)(ii) of this subsection 2.6 shall apply),
and without regard to whether the conditions precedent in subsection 6.2 are
satisfied, each Revolving Credit Lender will make the proceeds of its Revolving
Credit Loan available to the Administrative Agent for the account of the Dollar
Swing Line Lender at the office of the Administrative Agent specified by the
Administrative Agent prior to 12:00
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Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Dollar Swing
Line Loans.
(ii) If the Revolving Credit Commitments shall expire or
terminate (for any reason, including but not limited to the occurrence of any of
the events described in paragraph (f) of Section 9 with respect to the Borrower)
at any time while Dollar Swing Line Loans are outstanding, each Revolving Credit
Lender shall, at the option of the Dollar Swing Line Lender exercised
reasonably, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments and without regard to whether the conditions
precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an
ABR Loan (which Revolving Credit Loan shall be deemed a "Revolving Credit Loan"
for all purposes of this Agreement and the other Loan Documents) or (ii)
purchase an undivided participating interest in such Dollar Swing Line Loans, in
either case, in an amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage (determined on the date of, and immediately prior
to, expiration or termination of the Revolving Credit Commitments), of the
aggregate principal amount of such Dollar Swing Line Loans. Each Revolving
Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant
to the immediately preceding sentence available to the Administrative Agent for
the account of the Dollar Swing Line Lender at the office of the Administrative
Agent specified by the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date on which the Revolving Credit Commitments expire or terminate. The proceeds
of such Revolving Credit Loans shall be immediately applied to repay the Dollar
Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that the Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this paragraph (d)(ii), each Revolving Credit Lender shall immediately transfer
to the Dollar Swing Line Lender, in immediately available funds, the amount of
its participation.
(iii) Whenever, at any time after the Dollar Swing Line Lender
has received from any Revolving Credit Lender such Revolving Credit Lender's
participating interest in a Dollar Swing Line Loan and the Dollar Swing Line
Lender receives any payment on account thereof, the Dollar Swing Line Lender
will distribute to such Revolving Credit Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded); provided that in the event
that such payment received by the Dollar Swing Line Lender is required to be
returned such Revolving Credit Lender will return to the Dollar Swing Line
Lender any portion thereof previously distributed by the Dollar Swing Line
Lender to it.
(e) (i) Subject to the provisions of the second sentence of
subsection 2.6(b)(i), if any Event of Default shall occur and be continuing, any
Foreign Currency Swing Line Lender may, in its sole and absolute discretion,
direct that the Foreign Currency Swing Line Loans owing to it be refunded, by
delivering a notice (with such detail as the Administrative Agent shall request,
a "Notice of Foreign Currency Swing Line Refunding") to the Administrative Agent
and the European Swing Line Administrator. Upon receipt of such notice, the
Administrative Agent shall (i) promptly give notice of the contents thereof to
the Revolving Credit Lenders and, unless an Event of Default described in
paragraph (f) of Section 9 in respect of the Borrower has
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occurred, to the Borrower and (ii) calculate, without regard to the first
sentence of subsection 2.6(b)(ii), the Dollar Equivalent Amount of the aggregate
principal amount of the Foreign Currency Swing Line Loans of such Foreign
Currency Swing Line Lender outstanding as of the date the Administrative Agent
received such Notice of Foreign Currency Swing Line Refunding (the "Dollar
Refunding Amount"). Each such Notice of Foreign Currency Swing Line Refunding
shall be deemed to constitute delivery by the Borrower of a notice to the
Administrative Agent requesting each Revolving Credit Lender to make a Revolving
Credit Loan denominated in Dollars in an amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the Dollar Refunding Amount
as an ABR Loan. Unless the Revolving Credit Commitments shall have expired or
terminated for any reason, including but not limited to, the occurrence of any
of the events described in paragraph (f) of Section 9 hereto with respect to the
Borrower (in which event the procedures of paragraph (e)(ii) of this subsection
2.6 shall apply), and without regard to whether the conditions precedent in
subsection 6.2 are satisfied, each Revolving Credit Lender will make the
proceeds of its Revolving Credit Loan available to the Administrative Agent for
the account of the applicable Foreign Currency Swing Line Lender at the office
of the Administrative Agent specified by the Administrative Agent prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given; provided that the Revolving
Credit Lenders shall not be obligated to make Revolving Credit Loans and
purchase participating interests pursuant to this subsection 2.6(e) in an
aggregate amount that exceeds the sum of (I) $5,000,000 plus (II) the Foreign
Currency Swing Line Subfacility Amount. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay to the applicable Foreign Currency
Swing Line Lender the Dollar Refunding Amount.
(ii) If the Revolving Credit Commitments shall expire or
terminate (for any reason, including but not limited to the occurrence of any of
the events described in paragraph (f) of Section 9 hereto with respect to the
Borrower) at any time while Foreign Currency Swing Line Loans made by a Foreign
Currency Swing Line Lender are outstanding, each Revolving Credit Lender shall,
at the option of the applicable Foreign Currency Swing Line Lender exercised
reasonably, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments and without regard to whether the conditions
precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an
ABR Loan denominated in Dollars (which Revolving Credit Loan shall be deemed a
"Revolving Credit Loan" for all purposes of this Agreement and the other Loan
Documents) or (ii) purchase an undivided participating interest in the
outstanding Foreign Currency Swing Line Loans of such Foreign Currency Swing
Line Lender, in either case, in a Dollar Equivalent Amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage determined on
the date of, and immediately prior to, expiration or termination of the
Revolving Credit Commitments, of the aggregate principal amount of such Foreign
Currency Swing Line Loans (calculated without regard to the first sentence of
subsection 2.6(b)(ii)); provided that the Revolving Credit Lenders shall not be
obligated to make Revolving Credit Loans and purchase participating interests
pursuant to this subsection 2.6(e) in an aggregate amount that exceeds the sum
of (I) $5,000,000 plus (II) the Foreign Currency Swing Line Subfacility Amount.
Each Revolving Credit Lender will make the proceeds of any Revolving Credit Loan
made pursuant to the immediately preceding sentence available to the
Administrative Agent for the account of the applicable Foreign Currency Swing
Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New
York City time, in funds immediately available on the Business Day next
succeeding the date on which the
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Revolving Credit Commitments expire or terminate. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Foreign Currency Swing
Line Loans of such Foreign Currency Swing Line Lender outstanding on the date of
termination or expiration of the Revolving Credit Commitments. In the event that
the Revolving Credit Lenders purchase undivided participating interests pursuant
to the first sentence of this paragraph (e)(ii), each Revolving Credit Lender
shall immediately transfer to the applicable Foreign Currency Swing Line Lender,
in immediately available funds, the amount of its participation.
(iii) Whenever, at any time after a Foreign Currency Swing
Line Lender has received from any Revolving Credit Lender such Revolving Credit
Lender's participating interest in a Foreign Currency Swing Line Loan made by
such Foreign Currency Swing Line Lender and such Foreign Currency Swing Line
Lender receives any payment on account thereof, such Foreign Currency Swing Line
Lender will distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded); provided that in
the event that such payment received by such Foreign Currency Swing Line Lender
is required to be returned such Revolving Credit Lender will return to such
Foreign Currency Swing Line Lender any portion thereof previously distributed by
such Foreign Currency Swing Line Lender to it.
(f) Notwithstanding anything herein to the contrary, neither
the Dollar Swing Line Lender nor any Foreign Currency Swing Line Lender shall be
obligated to make any Swing Line Loan if the conditions set forth in subsection
6.2 have not been satisfied.
(g) The Borrower may designate any Wholly Owned Subsidiary of
the Borrower as a Subsidiary Borrower by delivery to the Administrative Agent
and the European Swing Line Administrator of a Subsidiary Borrower Agreement
executed by such Subsidiary and the Borrower. Upon such delivery and the written
consent of the European Swing Line Administrator to such designation, such
Subsidiary shall for all purposes of this Agreement be a Subsidiary Borrower and
a party to this Agreement until the Borrower shall have executed and delivered
to the Administrative Agent and the European Swing Line Administrator a
Subsidiary Borrower Termination with respect to such Subsidiary, whereupon such
Subsidiary shall cease to be a Subsidiary Borrower and a party to this
Agreement. Notwithstanding the preceding sentence, no Subsidiary Borrower
Termination will become effective as to any Subsidiary Borrower at a time when
any principal of, interest on or any other amount in respect of any extension of
credit to such Subsidiary Borrower shall be outstanding under any Foreign
Currency Swing Line Loan Agreement, provided that such Subsidiary Borrower
Termination shall be effective to terminate such Subsidiary Borrower's right to
make further borrowings under any Foreign Currency Swing Line Loan Agreement.
2.7 Competitive Bid Procedure. (a) To request Competitive
Bids, the Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Competitive Bid Request in the form of Exhibit G-1, to be
received by the Administrative Agent (i) in the case of a Eurocurrency
Competitive Loan, not later than 2:00 p.m., New York City time, four Business
Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate
Loan, not later than 2:00 p.m., New York City time, one Business Day before a
proposed Competitive Loan. Each Competitive Bid Request shall specify the
requested Currency. No ABR Loan shall be requested
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in, or made pursuant to, a Competitive Bid Request. A Competitive Bid Request
that does not conform substantially to the format of Exhibit G-1 may be rejected
in the Administrative Agent's sole discretion, and the Administrative Agent
shall promptly notify the Borrower of such rejection by telecopier. Such request
for Competitive Bids shall in each case refer to this Agreement and specify (i)
whether the Loan then being requested is to be a Eurocurrency Loan or a Fixed
Rate Loan, (ii) the date of such Loan and the aggregate principal Dollar
Equivalent Amount thereof, which shall be in a minimum principal Dollar
Equivalent Amount of $5,000,000 and in an integral multiple of $1,000,000, and
(iii) the Interest Period with respect thereto (which may not end after the
Revolving Credit Commitment Termination Date). No Competitive Loan shall be
requested in an aggregate principal Dollar Equivalent Amount such that after
giving effect to the making of such Competitive Loan, (a) the aggregate
principal Dollar Equivalent Amount of all outstanding Competitive Loans would
exceed $75,000,000, (b) the Dollar Equivalent Amount of the Foreign Currency
Sublimit Outstandings then outstanding would exceed the Foreign Currency
Sublimit Amount, (c) the Available Revolving Credit Commitment of such Revolving
Credit Lender would be less than zero, or (d) the Aggregate Revolving Credit
Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative
Agent shall invite by telecopier (in the form set forth in Exhibit G-2) the
Lenders to bid, on the terms and subject to the conditions of this Agreement, to
make Competitive Loans pursuant to such Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit G-3, (i) in the case of a Eurocurrency
Competitive Loan, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate
Loan, not later than 9:30 a.m., New York City time, on the day of a proposed
Competitive Loan. Multiple Competitive Bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit G-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming
Competitive Bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (i) the principal Dollar Equivalent
Amount (which shall be in a minimum principal Dollar Equivalent Amount of
$5,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Loan requested by the Borrower) of
the Competitive Loan or Loans that the applicable Lender is willing to make to
the Borrower, (ii) the Competitive Bid Rate or Rates at which such Lender is
prepared to make such Competitive Loan or Loans and (iii) the Interest Period or
Interest Periods with respect thereto. A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable after the latest time at
which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to the foregoing provisions of this paragraph.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid
Rate or Rates and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that made each
Competitive Bid. The Administrative Agent shall send a copy of all
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Competitive Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this subsection 2.7.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, promptly confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter whether and to what extent it has
decided to accept or reject any or all of the Competitive Bids referred to in
paragraph (c) above, (i) in the case of a Eurocurrency Competitive Loan, not
later than 10:30 a.m., New York City time, three Business Days before a proposed
Competitive Loan and (ii) in the case of a Fixed Rate Loan, not later than 10:30
a.m., New York City time, on the day of a proposed Competitive Loan; provided
that (A) the failure by the Borrower to give such notice shall be deemed to be a
rejection of all the Competitive Bids referred to in paragraph (c) above, (B)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower has decided to reject a Competitive Bid made at a lower
Competitive Bid Rate, (C) the aggregate amount of the Competitive Bids accepted
by the Borrower shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if the Borrower shall accept a Competitive Bid or
Competitive Bids made at a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by the Borrower to exceed the amount specified
in the Competitive Bid Request, then the Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount specified
in the Competitive Bid Request less the amount of all other Competitive Bids
accepted at lower Competitive Bid Rates with respect to such Competitive Bid
Request (it being understood that acceptance in the case of multiple Competitive
Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate), (E) except
pursuant to clause (D) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal Dollar
Equivalent Amount of $5,000,000 and an integral multiple of $1,000,000 and (F)
the Borrower may not accept Competitive Bids for Competitive Loans in any
Currency other than the Currency specified in the related Competitive Bid
Request; and provided, further, that if a Competitive Loan must be in an amount
less than the Dollar Equivalent Amount of $5,000,000 because of the provisions
of clause (D) above, such Competitive Loan shall be in a minimum principal
Dollar Equivalent Amount of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D),
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
that shall be in the discretion of the Administrative Agent. A notice given by
the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted in the applicable Currency.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower one quarter of
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an hour earlier than the latest time at which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) above.
(g) All notices required by this subsection 2.7 shall be given
in accordance with subsection 11.2.
(h) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Competitive Loans
of such Lender, substantially in a form to be agreed upon with appropriate
insertions as to date, principal amount and Currency (a "Competitive Note").
2.8 Term Loans. Subject to the terms and conditions hereof,
each Term Loan Lender severally agrees, on the Closing Date, to continue or make
a term loan (a "Term Loan") in Dollars, Deutschemarks or euro units in an
aggregate principal Dollar Equivalent Amount set forth under such Term Loan
Lender's name in Schedule A opposite the heading "Term Loan Commitment";
provided that the initial aggregate principal Dollar Equivalent Amount of Term
Loans denominated in Deutschemarks or euro units in the aggregate shall not
exceed $100,000,000 on the date such Term Loans are made, and the aggregate
principal amount of Term Loans denominated in Dollars shall not exceed
$350,000,000; and provided, further, that any Term Loans denominated in
Deutschemarks or euro units shall be made on the day that is two Business Days
after the Closing Date. The Term Loans may from time to time be (i) Eurocurrency
Loans, (ii) ABR Loans (in the case of Dollar Term Loans only) or (iii) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsection 2.9 or 4.4, provided that no
Term Loan shall be made as a Eurocurrency Loan after the day that is one month
prior to the Term Loan Maturity Date. Amounts paid on account of the Term Loans
pursuant to subsection 2.9 may not be reborrowed.
2.9 Term Notes. (a) The Borrower agrees that, upon the request
to the Administrative Agent by any Term Loan Lender made on or prior to the
Closing Date or in connection with any assignment pursuant to subsection 11.6,
to evidence such Lender's Term Loan the Borrower will execute and deliver to
such Lender a promissory note substantially in the form of Exhibit A-3 (as
amended, supplemented, replaced or otherwise modified from time to time, a Term
Note"), with appropriate insertions therein as to payee, date and principal
amount, payable to the order of such Term Loan Lender and in a principal amount
equal to the amount set forth under such Term Loan Lender's name on Schedule A
opposite the heading "Term Loan Commitment." Any Term Note shall (i) be dated
the Closing Date, (ii) be payable as provided in subsection 2.9(b) and (iii)
provide for the payment of interest in accordance with subsection 4.1.
(b) The Term Loans made in any Currency shall be payable in 20
consecutive quarterly installments on the dates and in the aggregate principal
amount (together with all accrued interest thereon) equal to the percentage set
forth below opposite the applicable installment date multiplied by the original
aggregate principal amount of the Term Loans made in such Currency:
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Installment Percentage
April 30, 2000 1.111%
July 31, 2000 2.220
October 31, 2000 3.333
January 31, 2001 4.444
April 30, 2001 4.167
July 31, 2001 4.167
October 31, 2001 4.167
January 31, 2002 4.167
April 30, 2002 5.556
July 31, 2002 5.556
October 31, 2002 5.556
January 31, 2003 5.556
April 30, 2003 5.556
July 31, 2003 5.556
October 31, 2003 5.556
January 31, 2004 5.556
April 30, 2004 6.944
July 31, 2004 6.944
October 31, 2004 6.944
February 15, 2005 6.944
(c) The Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M., New York City time, (a) four Business Days (or three
Business Days if the Term Loans requested are to be denominated in Dollars)
prior to the Borrowing Date, if all or any part of the requested Term Loans are
to be initially Eurocurrency Loans or (b) on the Closing Date, otherwise),
specifying (i) the amount to be borrowed, (ii) whether the borrowing is to be of
Eurocurrency Loans, ABR Loans or a combination thereof, (iii) the applicable
Currency and (iv) if the borrowing is to be entirely or partly of Eurocurrency
Loans, the respective amount of such Type of Loan and the respective length of
the initial Interest Period therefor. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Term Loan Lender thereof. Each
Term Loan Lender will make the amount of its pro rata share of such borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified by the Administrative Agent prior
to (i) in the case of a borrowing in Dollars, 1:00 P.M., New York City time or
(ii) in the case of a borrowing in Deutschemarks or euro unit, 10:00 A.M., New
York City time, on the Borrowing Date requested by the Borrower in the requested
Currency in funds immediately available to the Administrative Agent. The
Administrative Agent shall on such date credit the account of the Borrower
previously specified in writing by the Borrower to the Administrative Agent with
the aggregate of the amounts made available to the Administrative Agent by the
Term Loan Lenders.
2.10 Repayment of Loans. (a) The Borrower (or Borrowers, as
the case may be) hereby unconditionally promises to pay to the Administrative
Agent (or, in the case of Foreign
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Currency Swing Line Loans, as provided in subsection 2.6(b)) for the account of:
(i) each Revolving Credit Lender, the then unpaid principal amount of each
Revolving Credit Loan of such Lender made to a Borrower, on the Revolving Credit
Commitment Termination Date (or such earlier date on which the Revolving Credit
Loans become due and payable pursuant to Section 9); (ii) the Dollar Swing Line
Lender and each Foreign Currency Swing Line Lender, the then unpaid principal
amount of the Dollar Swing Line Loans or Foreign Currency Swing Line Loans, as
the case may be, made to a Borrower, on the Revolving Credit Commitment
Termination Date (or such earlier date on which the Swing Line Loans become due
and payable pursuant to Section 9); (iii) each Term Loan Lender, the amounts
specified in subsection 2.9(b) on the dates specified in subsection 2.9(b) (or
such earlier date on which the Term Loans become due and payable pursuant to
Section 9) and (iv) each Lender that makes a Competitive Loan, the then unpaid
principal amount of such Competitive Loan on the last day of the Interest Period
applicable to such Competitive Loan. Each of the Borrowers hereby further agrees
to pay interest on the unpaid principal amount of the Loans made to such
Borrower from time to time outstanding from the date of the making of the Loans
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 4.1.
(b) Each Lender (including the Swing Line Lenders) shall
maintain in accordance with its usual practice an account or accounts evidencing
indebtedness of each of the Borrowers to such Lender resulting from each Loan of
such Lender from time to time, including, without limitation, the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan (other than a Foreign
Currency Swing Line Loan made by a Foreign Currency Swing Line Lender other than
CIBC) made hereunder, the Type thereof and each Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the applicable Borrower to each Lender with
respect to each such Loan hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from any Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.10(c) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the applicable Borrower therein recorded; provided that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the applicable Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement. Each Borrower shall repay each Loan made to it, and interest thereon,
in the Currency in which such Loan is denominated.
2.11 Guarantee. (a) To induce the Foreign Currency Swing Line
Lenders to execute and deliver this Agreement and each Foreign Currency Swing
Line Loan Agreement and to make or maintain Foreign Currency Swing Line Loans to
the Subsidiary Borrowers, and in consideration thereof, the Borrower hereby
unconditionally and irrevocably guarantees for the benefit of the Foreign
Currency Swing Line Lenders and the other Lenders, the prompt and complete
payment and performance by the Subsidiary Borrowers when due (whether at stated
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maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations,
and the Borrower further agrees to pay any and all expenses (including, without
limitation, all reasonable fees, charges and disbursements of counsel) which may
be paid or incurred by the Managing Agents, the European Swing Line
Administrator or by the Lenders in enforcing, or obtaining advice of counsel in
respect of, any of their rights under the guarantee contained in this subsection
2.11. The guarantee contained in this subsection 2.11, subject to subsection
2.11(e), shall remain in full force and effect until the Subsidiary Borrower
Obligations are paid in full and the Revolving Credit Commitments are
terminated, notwithstanding that from time to time prior thereto the Subsidiary
Borrowers may be free from any Subsidiary Borrower Obligations.
(b) Notwithstanding any payment or payments made by the
Borrower hereunder or any set-off or application of funds of the Borrower by any
Lender, the Borrower shall not be entitled to be subrogated to any of the rights
of the Managing Agents, the European Swing Line Administrator or any Lender
against the Subsidiary Borrowers or any collateral security or guarantee or
right of offset held by any of the Managing Agents, the European Swing Line
Administrator or any Lender for the payment of the Subsidiary Borrower
Obligations, nor shall the Borrower seek or be entitled to seek any contribution
or reimbursement from the Subsidiary Borrowers in respect of payments made by
the Borrower hereunder, until all amounts owing to the Managing Agents, the
European Swing Line Administrator and the Lenders by the Subsidiary Borrowers on
account of the Subsidiary Borrower Obligations are paid in full and the
Revolving Credit Commitments are terminated. If any amount shall be paid to the
Borrower on account of such subrogation rights at any time when all of the
Subsidiary Borrower Obligations shall not have been paid in full or the
Revolving Credit Commitments shall not have been terminated, such amount shall
be held by the Borrower in trust for the Managing Agents, the European Swing
Line Administrator and the Lenders, segregated from other funds of the Borrower,
and shall, forthwith upon receipt by the Borrower, be turned over to the
Administrative Agent in the exact form received by the Borrower (duly endorsed
by the Borrower to the Administrative Agent, if required), to be applied against
the Subsidiary Borrower Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine. The Borrower hereby further
irrevocably waives all contractual, common law, statutory and other rights of
reimbursement, contribution, exoneration or indemnity (or any similar right)
from or against the Subsidiary Borrowers or any other Person which may have
arisen in connection with the guarantee contained in this subsection 2.11.
(c) The Borrower shall remain obligated under this subsection
2.11 notwithstanding that, without any reservation of rights against the
Borrower, and without notice to or further assent by the Borrower, any demand
for payment of or reduction in the principal amount of any of the Subsidiary
Borrower Obligations made by either of the Managing Agents, the European Swing
Line Administrator or any Lender may be rescinded by either of the Managing
Agents, the European Swing Line Administrator or such Lender, and any of the
Subsidiary Borrower Obligations continued, and the Subsidiary Borrower
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
either of the Managing Agents, the European Swing Line Administrator or any
Lender, and this Agreement, any other Loan Document, and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in
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whole or in part, as the Lenders (or the Required Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by either of the Managing Agents, the European
Swing Line Administrator or any Lender for the payment of the Subsidiary
Borrower Obligations may be sold, exchanged, waived, surrendered or released.
Neither of the Managing Agents, the European Swing Line Administrator nor any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Subsidiary Borrower Obligations or
for the guarantee contained in this subsection 2.11 or any property subject
thereto.
(d) The Borrower waives any and all notice of the creation,
renewal, extension or accrual of any of the Subsidiary Borrower Obligations and
notice of or proof of reliance by either of the Managing Agents, the European
Swing Line Administrator or any Lender upon the guarantee contained in this
subsection 2.11 or acceptance of the guarantee contained in this subsection
2.11; the Subsidiary Borrower Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this subsection
2.11; and all dealings between any of the Subsidiary Borrower or the Borrower,
on the one hand, and the Managing Agents, the European Swing Line Administrator
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this
subsection 2.11. The Borrower waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Subsidiary Borrower
or the Borrower with respect to the Subsidiary Borrower Obligations. The
guarantee contained in this subsection 2.11 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (i) the
validity or enforceability of this Agreement, any other Loan Document, any of
the Subsidiary Borrower Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by either of the Managing Agents, the European Swing Line
Administrator or any Lender, (ii) any defense, setoff or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by the Borrower against any Lender, or (iii) any other
circumstance whatsoever (with or without notice to or knowledge of the
Subsidiary Borrower or the Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary Borrower for the
Subsidiary Borrower Obligations, or of the Borrower under the guarantee
contained in this subsection 2.11, in bankruptcy or in any other instance. When
either of the Managing Agents, the European Swing Line Administrator or any
Lender is pursuing its rights and remedies under this subsection 2.11 against
the Borrower, either of the Managing Agents, the European Swing Line
Administrator or any Lender may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Subsidiary Borrower or any
other Person or against any collateral security or guarantee for the Subsidiary
Borrower Obligations or any right of offset with respect thereto, and any
failure by either of the Managing Agents, the European Swing Line Administrator
or any Lender to pursue such other rights or remedies or to collect any payments
from the Subsidiary Borrower or any such other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of the Subsidiary Borrower or any such other Person or of any
such collateral security, guarantee or right of offset, shall not relieve the
Borrower of any liability under this subsection 2.11, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Managing Agents, the European Swing Line Administrator and
the Lenders against the Borrower.
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(e) The guarantee contained in this subsection 2.11 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Subsidiary Borrower Obligations is
rescinded or must otherwise be restored or returned by either of the Managing
Agents, the European Swing Line Administrator or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Subsidiary
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Subsidiary Borrower or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
(f) The Borrower hereby agrees that any payments in respect of
the Subsidiary Borrower Obligations pursuant to this subsection 2.11 will be
paid to the Administrative Agent without setoff or counterclaim (other than a
defense of payment or performance) in Dollars at the office of the
Administrative Agent specified in subsection 11.2.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") denominated in Dollars or an Available Foreign Currency
for the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the
Dollar Equivalent Amount of the aggregate L/C Obligations would exceed the L/C
Commitment, (ii) the Available Revolving Credit Commitment of any Revolving
Credit Lender would be less than zero, (iii) the Aggregate Revolving Credit
Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders, or (iv) the then Dollar
Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the
Foreign Currency Subfacility Amount. All letters of credit issued pursuant to
the Prior Credit Agreement shall, at all times on or after the Closing Date, be
deemed to be "Letters of Credit" for all purposes of this Agreement and the
other Loan Documents.
(b) Each Letter of Credit shall (i) be either (x) a standby
letter of credit issued to support obligations of the Borrower or any of its
Subsidiaries, contingent or otherwise, to finance the working capital and
business needs of the Borrower or any of its Subsidiaries in the ordinary course
of business or (y) a commercial letter of credit issued in respect of the
purchase of goods or services by the Borrower or any of its Subsidiaries in the
ordinary course of business and (ii) expire no later than the earlier of (x) the
date that is 12 months after the date of its issuance and (y) the fifth Business
Day prior to the Revolving Credit Commitment Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York or, in any case where the Issuing Lender issues such Letters of Credit
from an office located outside of the United States, the laws of the
jurisdiction in which such office is located.
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(d) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may request that the Issuing Lender issue a Letter of Credit at any time prior
to the fifth Business Day prior to the Revolving Credit Commitment Termination
Date by delivering to the Issuing Lender at its address for notices specified
herein a Letter of Credit Application therefor, completed to the satisfaction of
the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Letter of
Credit Application, the Issuing Lender will process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Letter of Credit
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, a letter of credit fee with respect to each Letter of
Credit payable in Dollars in the Dollar Equivalent Amount of the amount of such
fee calculated in the Currency in which such Letter of Credit is denominated,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit at a rate per annum
equal to the Applicable Margin in effect during such period for Eurocurrency
Loans that are Revolving Credit Loans (on the basis of the actual number of days
elapsed over a 360-day year) on the aggregate face amount of Letters of Credit
outstanding during such period, payable in arrears on each L/C Fee Payment Date
and on the Revolving Credit Commitment Termination Date. Such fee shall be
payable to the Administrative Agent to be shared ratably among the Revolving
Credit Lenders in accordance with their respective Revolving Credit Commitment
Percentages. In addition, the Borrower shall pay to the Issuing Lender, for its
own account, a fee equal to 0.125% per annum on the aggregate face amount of
outstanding Letters of Credit, payable in Dollars in the Dollar Equivalent
Amount of the amount of such fee calculated in Currency in which such Letter of
Credit is denominated quarterly in arrears on each L/C Fee Payment Date and on
the Revolving Credit Commitment Termination Date and calculated on the basis of
the actual number of days elapsed over a 360-day year.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
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3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage from time to time in effect
in the Issuing Lender's obligations and rights under each Letter of Credit
issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay in the Currency in which
such Letter of Credit is denominated to the Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein an amount equal to such
L/C Participant's then Revolving Credit Commitment Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed; provided that if
such demand is made prior to 12:00 Noon, New York City time, on a Business Day
such L/C Participant shall make such payment to the Issuing Lender prior to the
end of such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to paragraph 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) (A) in
the case of any such payment obligation denominated in Dollars, the daily
average Federal Funds Rate, as quoted by the Issuing Lender, or (B) in the case
of any such payment obligation denominated in an Available Foreign Currency, the
rate customary in such Available Foreign Currency for settlement of similar
interbank obligations, as quoted by the Issuing Lender, in each case, during the
period from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to paragraph 3.4(a) is not in fact made
available to the Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Lender shall be entitled to
recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans
hereunder, in the case of payment obligations denominated in Dollars, or the
rate per annum applicable to Eurocurrency Loans having an Interest period of one
day, in the case of payment obligations denominated in an Available Foreign
Currency. A certificate of the Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral
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applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will, if such payment is received prior to 12:00
Noon, New York City time, on a Business Day, distribute to such L/C Participant
its pro rata share thereof prior to the end of such Business Day and otherwise
the Issuing Lender will distribute such payment on the next succeeding Business
Day; provided that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on the same Business Day on which a draft
is presented under any Letter of Credit and paid by the Issuing Lender, provided
that the Issuing Lender provides notice to the Borrower prior to 12:00 Noon, New
York City time, on such Business Day and otherwise the Borrower will reimburse
the Issuing Lender on the next succeeding Business Day; provided, further, that
the failure to provide such notice shall not affect the Borrower's absolute and
unconditional obligation to reimburse the Issuing Lender for any draft paid
under any Letter of Credit. The Issuing Lender shall provide notice to the
Borrower on such Business Day as a draft is presented and paid by the Issuing
Lender indicating the amount of (i) such draft so paid and (ii) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in the Currency in which the applicable
Letter of Credit is denominated and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts are
drawn until payment in full at the rate which would be payable on any
outstanding Revolving Credit Loans that are ABR Loans which were then overdue,
in the case of any Dollar Letter of Credit, or Eurocurrency Loans having
Interest Periods of one day which were then overdue, in the case of any Foreign
Currency Letter of Credit (unless such drawing occurs after 11:00 A.M. New York
City time on the date of drawing and the Borrower would be able to satisfy the
conditions to borrowing Revolving Credit Loans on such date in an amount at
least equal to the amount of such drawing, in which case, interest shall be
payable for the first day after such drawing at the respective rates for the
applicable type of Loans that are not overdue).
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
subsection 2.3 of ABR Loans in the amount of such drawing (or, in the case of a
drawing under a Foreign Currency Letter of Credit, the Dollar Equivalent Amount
of the amount of such drawing). The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender and any
L/C Participant that the Issuing Lender and any L/C Participant shall not be
responsible for, and the Borrower's Reimbursement Obligations under subsection
3.5(a) shall not be affected by, among other things, (i) the validity or
genuineness of documents or of any endorsements thereon, even though such
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documents shall in fact prove to be invalid, fraudulent or forged, or (ii) any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
(iii) any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
the Issuing Lender's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing Lender
to the Borrower in connection with such draft shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
3.8 Application. To the extent that any provision of any
Letter of Credit Application related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this Section 3 shall
apply.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan (other than a Eurocurrency Competitive Loan) shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to the Eurocurrency Rate determined for such day plus the Applicable Margin.
(b) Each Competitive Loan shall bear interest for each day
during each Interest Period with respect thereto at the applicable rate per
annum determined as provided in subsection 2.7.
(c) Each ABR Loan shall bear interest at a rate per annum
equal to the CIBC Alternate Base Rate plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate
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per annum which is (x) in the case of principal, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this subsection
plus 2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case, from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand.
4.2 Optional Prepayments. Each of the Borrowers may at any
time and from time to time prepay the Loans made to it in whole or in part,
without premium or penalty on any Business Day, provided that (i) such Borrower
shall have given (x) at least three Business Days' irrevocable notice to the
Administrative Agent (in the case of Eurocurrency Loans) or (y) same-day
irrevocable notice to the Administrative Agent (in the case of ABR Loans,
including Dollar Swing Line Loans or to the applicable Foreign Currency Swing
Line Lender in the case of Foreign Currency Swing Line Loans), (ii) such notice
specifies, in the case of any prepayment of Loans, the date, Currency and amount
of prepayment and whether the prepayment is (x) of Term Loans, Revolving Credit
Loans or Dollar Swing Line Loans, Foreign Currency Swing Line Loans, or a
combination thereof, and in each case if a combination thereof, the amount
allocable to each, (y) of Eurocurrency Loans, ABR Loans or a combination
thereof, and, in each case if a combination thereof, the principal amount
allocable to each and (iii) each prepayment is in a minimum principal Dollar
Equivalent Amount of $1,000,000 and a multiple of $100,000 in excess thereof.
Upon the receipt of any such notice the Administrative Agent shall promptly
notify each of the Lenders thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with any amounts payable pursuant to subsection 4.12 and, in the case
of prepayments of the Term Loans only, accrued interest to such date on the
amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this
subsection shall be applied pro rata to the respective installments of principal
thereof and (ii) the Revolving Credit Loans and the Letters of Credit pursuant
to this subsection shall be applied, first, to payment of the Dollar Swing Line
Loans then outstanding, second, to the payment of the Foreign Currency Swing
Line Loans then outstanding, third, to payment of the Revolving Credit Loans
then outstanding and, last, to cash collateralize any outstanding L/C Obligation
upon terms reasonably satisfactory to the Administrative Agent. The Borrower
shall not have the right to prepay Competitive Loans without the consent of the
applicable Lender.
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments. (a) If, in any fiscal year, commencing with the fiscal year ending
January 31, 1999, there shall be Excess Cash Flow for such fiscal year, then on
the date that is the earlier of (i) the date on which the audited financial
statements for such fiscal year are required to be delivered pursuant to
subsection 7.1(a) and (ii) the date two Business Days after the delivery of such
financial statements, 75% (provided that such percentage shall reduce to 50% if
at the end of such fiscal year the Leverage Ratio is less than 3.00 to 1.00) of
such Excess Cash Flow shall be applied toward the prepayment of the Loans and
the permanent reduction of the Revolving Credit Commitments in accordance with
subsection 4.3(e).
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(b) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall incur or issue any debt obligations (other than in
respect of Indebtedness permitted by subsection 8.2 (other than subsections
8.2(i) and 8.2(k)), then 100% of the Net Cash Proceeds thereof shall, on the
first Business Day after receipt thereof, be applied toward the prepayment of
the Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(e), provided that if, subsequent to the Closing
Date, the Borrower or any of its Subsidiaries shall incur or issue any debt
obligations permitted by subsection 8.2(i), then 100% (provided that such
percentage shall reduce to 50% if at the end of the fiscal quarter most recently
ended prior to the date of such debt issuance for which financial statements
shall have been delivered by the Borrower pursuant to subsection 7.1 and after
giving effect thereto (with EBITDA being calculated on the basis of such
financial statements) the Leverage Ratio would be less than 3.00 to 1.00) of the
Net Cash Proceeds thereof shall, on the first Business Day after receipt
thereof, be applied toward the prepayment of the Loans or any other outstanding
Indebtedness of the Borrower or any Subsidiary (the Loans or other Indebtedness
so prepaid shall be elected by the Borrower in its sole discretion, subject to
subsection 8.10) (provided that the Revolving Credit Commitments shall not be
reduced to the extent the Borrower elects to prepay Revolving Credit Loans).
(c) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall receive Net Cash Proceeds from any asset sales or other
dispositions permitted by subsection 8.6(b) or (j), then 100% of the portion of
such Net Cash Proceeds required by subsection 8.6(b) or (j), as the case may be,
to be so applied shall on the first Business Day after receipt thereof, be
applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 4.3(e); provided that
(i) such Net Cash Proceeds from any such asset sales or other dispositions shall
not be required to be so applied until the amount of such unapplied Net Cash
Proceeds exceeds the Dollar Equivalent Amount of $5,000,000 in the aggregate, at
which time 100% of such unapplied Net Cash Proceeds shall be applied immediately
toward the prepayment of the Loans and the permanent reduction of the Revolving
Credit Commitments in accordance with subsection 4.3(e) and (ii) to the extent
that such Net Cash Proceeds from any such asset sales or other dispositions may
be used by the Borrower and its Subsidiaries to acquire fixed or capital assets
or make Investments or may be used by Non-Guarantor Subsidiaries to prepay,
repay or repurchase Indebtedness of Non-Guarantor Subsidiaries, or acquire
assets used or useful in the businesses of Non-Guarantor Subsidiaries, in each
case, within 180 days of receipt thereof and otherwise in accordance with
subsection 8.6(b) or (j), as the case may be, but such Net Cash Proceeds are not
so used, such Net Cash Proceeds shall be applied toward the repayment of the
Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(e) on the earlier of (x) the 180th day after
receipt of such Net Cash Proceeds and (y) the date on which the Borrower has
reasonably determined that such Net Cash Proceeds shall not be so used. If,
subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from asset sales or other dispositions permitted
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by subsection 8.6(g), then 100% of such Net Cash Proceeds shall, on the first
Business Day after receipt thereof, be applied toward the prepayment of the
Loans or any other outstanding Indebtedness of the Borrower or any Subsidiary
(the Loans or other Indebtedness so prepaid shall be elected by the Borrower in
its sole discretion) (provided that the Revolving Credit Commitments shall not
be reduced to the extent the Borrower elects to prepay Revolving Credit Loans).
If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any asset sales or other dispositions
permitted by subsection 8.6(i), then the portion of such Net Cash Proceeds
required by subsection 8.6(i) to be applied in accordance with this subsection
4.3(c) shall be applied as follows: 100% of (A) the Dollar Equivalent Amount of
the first $50,000,000 of such portion of such Net Cash Proceeds shall, on the
first Business Day after receipt thereof (or such later date upon which such
application shall be required), be applied toward the prepayment of the Loans or
any other outstanding Indebtedness of the Borrower or any Subsidiary (the Loans
or other Indebtedness so prepaid shall be elected by the Borrower in its sole
discretion) (provided that the Revolving Credit Commitments shall not be reduced
to the extent the Borrower elects to prepay Revolving Credit Loans) and (B) any
additional Net Cash Proceeds shall, on the first Business Day after receipt
thereof (or such later date upon which such application shall be required), be
applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 4.3(e).
(d) If, at any time during the Revolving Credit Commitment
Period, the Aggregate Outstanding Revolving Credit with respect to all Revolving
Credit Lenders (including the Swing Line Lenders) exceeds the aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately repay the Revolving Credit Loans and/or the Swing Line
Loans in an aggregate principal amount equal to such excess, together with
interest accrued to the date of such payment or prepayment and any amounts
payable under subsection 4.12. To the extent that after giving effect to any
prepayment of the Loans required by the preceding sentence, the Aggregate
Outstanding Revolving Credit with respect to all Revolving Credit Lenders
(including the Swing Line Lenders) exceeds the aggregate Revolving Credit
Commitments then in effect, the Borrower shall, without notice or demand,
immediately cash collateralize the then outstanding L/C Obligations in an amount
equal to such excess upon terms reasonably satisfactory to the Administrative
Agent. On the Business Day next succeeding the date on which a payment has
caused the Aggregate Outstanding Revolving Credit with respect to all Revolving
Credit Lenders (including the Swing Line Lender) to be equal to or less than the
Revolving Credit Commitments then in effect, the Administrative Agent shall
return to the Borrower the cash used to cash collateralize the then outstanding
L/C Obligations pursuant to the preceding sentence.
(e) Except as expressly provided herein, prepayments of the
Loans and permanent reductions of the Revolving Credit Commitments pursuant to
subsections 4.3(a), (b) and (c) shall be applied, first, to payment of the Term
Loans then outstanding and, second, (to the extent that there are no Term Loans
then outstanding) to permanent reduction of the Revolving Credit Commitments
then in effect. Prepayments of the Term Loans pursuant to subsections 4.3(a),
(b), (c) and (h) shall be applied pro rata to the respective installments of
principal thereof. Notwithstanding the foregoing, in the event Term Loans
denominated in Deutschemarks or euro units are outstanding at the time of such
prepayment, mandatory prepayments shall be applied first to prepay outstanding
Term Loans denominated in Dollars.
(f) Amounts prepaid on account of Term Loans pursuant to
subsection 4.3(a), (b), (c) or (h) may not be reborrowed.
(g) If, at any time during the Revolving Credit Commitment
Period, the Aggregate Outstanding Revolving Credit (other than in respect of the
undrawn portion of any Letters of Credit) with respect to all Revolving Credit
Lenders (including the Swing Line
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Lenders) is not less than the Clean-Down Amount for at least a consecutive
thirty day period during each fiscal year of the Borrower, the Borrower shall,
without notice or demand, immediately repay the Revolving Credit Loans and/or
the Swing Line Loans in an aggregate principal amount equal to such excess,
together with interest accrued to the date of such payment or prepayment and any
amounts payable under subsection 4.12, and any borrowings of Revolving Credit
Loans during such thirty day period shall be subject to the proviso to
subsection 2.1(a). To the extent that after giving effect to any prepayment of
the Loans required by the preceding sentence, such Aggregate Outstanding
Revolving Credit with respect to all Revolving Credit Lenders (including the
Swing Line Lenders) exceeds the Clean-Down Amount, the Borrower shall, without
notice or demand, immediately cash collateralize the then outstanding L/C
Obligations in an amount equal to such excess upon terms reasonably satisfactory
to the Administrative Agent. On the Business Day next succeeding the date on
which the thirty day period described above has expired, the Administrative
Agent shall return to the Borrower the cash, if any, used to cash collateralize
the then outstanding L/C Obligations pursuant to the preceding sentence.
(h) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall receive any cash proceeds of any casualty or
condemnation, then on the first Business Day after receipt thereof 100% of the
portion of such proceeds required by subsection 8.6(h) to be applied pursuant to
the terms of this subsection 4.3(h) shall be either (at the election of the
Borrower) (a) deposited by the Borrower with the Administrative Agent, which
shall hold such proceeds in a cash collateral account upon terms reasonably
satisfactory to it or (b) applied by the Borrower to prepay Term Loans or
Revolving Credit Loans (at the election of the Borrower), provided that to the
extent the Borrower elects to prepay Revolving Credit Loans (i) the Borrower
shall maintain Available Revolving Credit Commitments (in addition to any
requirement to maintain Available Revolving Credit Commitments in accordance
with subsections 8.2(h) and (l)) at least equal to the aggregate principal
amount of Revolving Credit Loans so prepaid and (ii) if such property is not
replaced or rebuilt within one year (subject to reasonable extension for force
majeure or weather delays) following the condemnation or casualty or if the
Borrower fails to notify the Administrative Agent in writing on or before the
180th day after such casualty or condemnation that the Borrower shall commence
the replacement or rebuilding of such property, then, the Revolving Credit
Commitments shall be permanently reduced at such time in an amount equal to the
aggregate amount of proceeds applied by the Borrower to prepay Revolving Credit
Loans rather than Term Loans.
4.4 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurocurrency Revolving Credit Loans
denominated in Dollars to ABR Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election, provided that
any such conversion of Eurocurrency Revolving Credit Loans may only be made on
the last day of an Interest Period with respect thereto. The Borrower may elect
from time to time to convert ABR Loans to Eurocurrency Revolving Credit Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurocurrency Revolving
Credit Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurocurrency
Revolving Credit Loans and ABR Loans may be converted as provided herein,
provided that (i) unless the Majority Lenders otherwise consent, no Loan may be
converted into a
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Eurocurrency Revolving Credit Loan when any Event of Default has occurred and is
continuing and (ii) no Loan may be converted into a Eurocurrency Revolving
Credit Loan after the date that is one month prior to the Revolving Credit
Commitment Termination Date.
(b) Any Eurocurrency Standby Loans may be continued as such in
the same Currency upon the expiration of the then current Interest Period with
respect thereto by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable notice provisions of subsection 2.3, of the
length of the next Interest Period to be applicable to such Loans, provided that
no such Eurocurrency Loan may be continued as such (i) unless the Majority
Lenders otherwise consent, when any Event of Default has occurred and is
continuing or (ii) after the date that is one month prior to the Revolving
Credit Commitment Termination Date (in the case of continuations of Revolving
Credit Loans) or the Term Loan Maturity Date (in the case of continuations of
Term Loans) and provided, further, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Eurocurrency Loans shall be
automatically continued with an Interest Period of one month.
4.5 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
Dollar Equivalent Amount of the Loans comprising each Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than (a) 25 Tranches outstanding at any time or (b) 20
Tranches in respect of Revolving Credit Loans and 5 Tranches in respect of Term
Loans.
4.6 Computation of Interest, Fees and Dollar Equivalent
Amounts. (a) Interest (other than interest based on the CIBC Prime Rate) on all
Loans and commitment fees payable pursuant hereto shall be calculated on the
basis of a year of 360 days for the actual days elapsed; interest based on the
CIBC Prime Rate shall be calculated on the basis of a 365-(or 366-, as the case
may be) day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of each determination of
a Eurocurrency Rate. Any change in the interest rate on the Loans resulting from
a change in the CIBC Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change shall become effective, provided that such change becomes
effective prior to 5:00 P.M., New York City time, on such day. The
Administrative Agent shall as soon as practicable notify the Borrower and each
Lender of the effective date and the amount of each such change.
(b) The Administrative Agent will determine the Dollar
Equivalent Amount with respect to:
(i) any borrowing of Foreign Currency Revolving Credit
Loans or Foreign Currency Competitive Loans, on the second full
Business Day preceding the first day of the applicable Interest Period;
(ii) any Foreign Currency Swing Line Loans made by CIBC, as
of the proposed Borrowing Date thereof;
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(iii) any issuance of a Foreign Currency Letter of Credit,
as of the requested issuance date of such Letter of Credit;
(iv) any drawing under a Foreign Currency Letter of Credit
and any calculation of letter of credit fees in respect thereof, as of
the date the Borrower is required pursuant to subsection 3.5 to
reimburse the Issuing Lender;
(v) all outstanding Foreign Currency Revolving Credit
Loans, Foreign Currency Swing Line Loans, L/C Obligations in respect of
Foreign Currency Letters of Credit and Foreign Currency Competitive
Loans, on any date on which the Revolving Credit Commitments are
reduced pursuant to subsection 2.5;
(vi) all outstanding Foreign Currency Revolving Credit
Loans, Foreign Currency Competitive Loans, Foreign Currency Swing Line
Loans and L/C Obligations in respect of Foreign Currency Letters of
Credit, for purposes of calculating compliance with the proviso to
subsection 2.1(a) (as reflected in the certificate to be delivered by
the Borrower pursuant to subsection 7.2(b)(iv)), as of the first day of
the thirty-day compliance period provided for in such clause;
(vii) each Foreign Currency Swing Line Commitment, as of the
date such Foreign Currency Swing Line Commitment is originally
extended; and
(viii) all Foreign Currency Revolving Credit Loans and L/C
Obligations in respect of Foreign Currency Letters of Credit for
purposes of calculating the letter of credit fees and the commitment
fees due the Revolving Credit Lenders pursuant to subsection 2.4(a), as
of the first Business Day prior to the last day of the fiscal quarter
for which computation thereof is made.
(c) Each determination of an interest rate or a Dollar
Equivalent Amount by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the reasonable
request of the Borrower or any Lender, deliver to the Borrower or such Lender,
as the case may be, a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.1.
4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period: (a) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate for any Currency for such Interest Period, or (b) the Administrative Agent
shall have received notice from the Majority Lenders that the Eurocurrency Rate
for any Currency determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or any affiliate of
any such Lender from which such Lender customarily obtains funds) (as
conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period, then the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurocurrency Loans in
the affected Currency requested to be made on the first day of such Interest
Period shall be made as ABR Loans, (y) any Loans that were to
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have been converted on the first day of such Interest Period to Eurocurrency
Loans in the affected Currency shall be converted to or continued as ABR Loans
and (z) any outstanding Eurocurrency Loans in the affected Currency shall be
converted, on the first day of such Interest Period, to ABR Loans, provided that
nothing in this sentence shall be deemed to prevent the Eurocurrency Loans in
the affected Currency from being converted to Eurocurrency Loans in another
Currency if the applicable requirements of this Agreement to the prepayment of
such Eurocurrency Loans in the affected Currency and to the making of such
Eurocurrency Loans in such other Currency shall be satisfied. Until such notice
has been withdrawn by the Administrative Agent, no further Eurocurrency Loans in
the affected Currency shall be made or continued as such, nor shall the Borrower
have the right to convert Loans to Eurocurrency Loans in the affected Currency.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
Revolving Credit Loans (other than Swing Line Loans) by the Borrower from the
Revolving Credit Lenders hereunder shall be made, each payment by the Borrower
on account of any commitment fee in respect of the Revolving Credit Commitments
hereunder shall be allocated by the Administrative Agent, and any reduction of
the Revolving Credit Commitments of the Revolving Credit Lenders shall be
allocated by the Administrative Agent, pro rata according to the Revolving
Credit Commitment Percentages of the Revolving Credit Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on any Revolving Credit Loan shall be allocated by the Administrative
Agent pro rata according to the respective outstanding principal Dollar
Equivalent Amounts of such Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts of such Term Loans then held by the Term Loan Lenders. Each payment of
interest on any Competitive Loan shall be allocated pro rata among the Lenders
participating in such Loan in accordance with the respective principal amount of
their outstanding Competitive Loans. For purposes of determining the Available
Revolving Credit Commitments of the Revolving Credit Lenders at any time, each
outstanding Competitive Loan shall be deemed to have utilized the Revolving
Credit Commitment of the Revolving Credit Lenders (including those Revolving
Credit Lenders that shall not have made Competitive Loans) pro rata in
accordance with such respective Revolving Credit Commitments. All payments
(including prepayments) to be made by the Borrower hereunder and under any Notes
in any Currency, whether on account of principal, interest, fees, Reimbursement
Obligations or otherwise, shall be made in such Currency without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders
holding the relevant Loans or the L/C Participants, as the case may be, at the
Administrative Agent's office specified by the Administrative Agent from time to
time, in such Currency and in immediately available, freely transferable funds.
Payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. If any payment hereunder (other
than payments on Eurocurrency Loans) becomes due and payable on a day other than
a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension)
unless the result of such extension
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would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. To the extent
that any EMU legislation provides that an amount denominated either in the euro
or in the national currency unit of a participating member state and payable
within that participating member state by crediting an account of the creditor
can be paid by the debtor either in the euro unit or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency unit.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Rate in the
case of any amount denominated in Dollars, or the rate customary in such
Currency for settlement of similar interbank obligations in the case of any
amount denominated in an Available Foreign Currency as quoted by the
Administrative Agent, in each case, for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, in
the case of obligations denominated in Dollars, or the rate per annum applicable
to Eurocurrency Loans having an Interest Period of one day, in the case of
payment obligations denominated in an Available Foreign Currency, in each case,
on demand, from the Borrower.
(c) With respect to the payment of any amount denominated in
the euro or in a national currency unit, the Administrative Agent shall not be
liable to any Borrower or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account of any Lender in the principal
financial center in the participating member state which such Borrower or, as
the case may be, such Lender shall have specified for such purpose. In this
paragraph, "all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time determine
for the purpose of clearing or settling payments of the euro.
4.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender (or any affiliate
of such Lender from which such Lender customarily
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obtains funds) to make or maintain Eurocurrency Loans in Dollars or any
Available Foreign Currency or Foreign Currency Swing Line Loans as contemplated
by this Agreement, (a) the commitment of such Lender hereunder to make
Eurocurrency Standby Loans in Dollars or such Available Foreign Currency or make
Foreign Currency Swing Line Loans, as the case may be, continue Eurocurrency
Standby Loans in Dollars or such Available Foreign Currency, as the case may be,
as such and convert ABR Loans to Eurocurrency Standby Loans in Dollars or such
Available Foreign Currency or make Foreign Currency Swing Line Loans, as the
case may be, shall forthwith be canceled, (b) the Borrower shall be prohibited
from requesting Eurocurrency Competitive Loans from such Lender and (c) such
Lender's Loans then outstanding as Eurocurrency Loans in Dollars or such
Available Foreign Currency, as the case may be, if any, shall be converted
automatically to ABR Loans or, if a Foreign Currency Swing Line Loan,
immediately repaid, and on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurocurrency Loan or a Foreign Currency Swing
Line Loan occurs on a day which is not the last day of the then current Interest
Period (or other agreed payment date in the case of a Foreign Currency Swing
Line Loan) with respect thereto, the applicable Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Letter of Credit Application, any Foreign Currency Swing
Line Loan or any Eurocurrency Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 4.11 and changes in the rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender (or any affiliate of
such Lender from which such Lender customarily obtains funds) which is
not otherwise included in the determination of the Eurocurrency Rate
hereunder or the rate applicable to any Foreign Currency Swing Line
Loan; or
(iii) shall impose on such Lender (or such affiliate) any
other condition; and the result of any of the foregoing is to increase the cost
to such Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans or Foreign
Currency Swing Line Loans or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the applicable Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the applicable
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender or such corporation for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, such Lender shall promptly notify the
applicable Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this subsection submitted by such Lender to the
applicable Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
4.11 Taxes. (a) All payments made by the Borrowers under this
Agreement, any Notes, any Letters of Credit, any Letter of Credit Application or
any Foreign Currency Swing Line Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings and all interest, penalties or similar liabilities imposed with
respect to such tax, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, any Letters of Credit or any Letter of Credit Applications, the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement,
provided that the Borrowers shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
or a state thereof if such Lender fails to comply with the requirements of
paragraph (b) of this subsection. Whenever any Non-Excluded Taxes are payable by
a Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
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received by such Borrower showing payment thereof. If a Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States or a state thereof shall:
(X) in the case of a Lender that is a "bank" within the
meaning of Section 881 (c)(3)(A) of the Code,(i) deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may
be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent,
(A) a certificate substantially in the form of Exhibit E (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two accurate
and complete original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Agreement and any Notes (and
to deliver to the Borrower and the Administrative Agent two further
copies of such form on or before the date it expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms), and (iii)
agree, to the extent legally entitled to do so, upon reasonable request
by the Borrower, to provide to the Borrower (for the benefit of the
Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments under
this Agreement and any Notes, provided that in determining the
reasonableness of a request under this clause (iii) such Lender shall
be
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entitled to consider the cost (to the extent unreimbursed by the
Borrower) which would be imposed on such Lender of complying with such
request;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have been purchased.
4.12 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion from or into or continuation of Eurocurrency Loans or
Foreign Currency Swing Line Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by such Borrower in making any prepayment of Eurocurrency Standby Loans
or Foreign Currency Swing Line Loans after such Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment of Eurocurrency Standby Loans or Foreign Currency Swing Line Loans
on a day which is not the last day of an Interest Period or other agreed payment
date (in the case of Foreign Currency Swing Line Loans) with respect thereto.
Such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period or other agreed payment date (in the case of Foreign
Currency Swing Line Loans) (or, in the case of a failure to borrow, convert or
continue, the Interest Period or other agreed loan period (in the case of
Foreign Currency Swing Line Loans) that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.13 Change of Lending Office; Replacement of Lenders. (a)
Each Lender agrees that if it makes any demand for payment under subsection 4.10
or 4.11(a), or if any adoption or change of the type described in subsection 4.9
shall occur with respect to it, it shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for a Borrower to make payments
under subsection 4.10 or 4.11(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 4.9.
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(b) The Borrower shall be permitted to replace any Lender that
(a) requests reimbursement for amounts owing pursuant to subsection 4.10 or
4.11(a) or (b) defaults in its obligation to make Loans hereunder, with a
replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under subsection
4.13(a) so as to eliminate the continued need for payment of amounts owing
pursuant to subsection 4.10 or 4.11(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under subsection 4.12 if any Eurocurrency Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of subsection 11.6 (provided that
the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to subsection 4.10 or 4.11(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
4.14 Borrower Controls on Non-Dollar Indebtedness; Calculation
of Non-Dollar Extensions of Credit; Prepayments. The Borrowers will implement
and maintain internal accounting controls to monitor the borrowings and
repayments of Foreign Currency Revolving Credit Loans (including Foreign
Currency Swing Line Loans and Foreign Currency Competitive Loans), the issuance
of and drawings under Foreign Currency Letters of Credit and other Non-Dollar
Indebtedness with the object of preventing any request for an extension of
credit that would result in the Borrower failing to comply with this Agreement,
including subsections 2.1, 2.5, 2.6, 2.7, 3.1 and 8.2, and of promptly
identifying and remedying any circumstance where, by reason of changes in
exchange rates, the Borrower fails to be in compliance with such subsections.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Managing Agents and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, each of the Borrowers hereby represents and warrants, on the Closing
Date and on any date thereafter on which any Loan or any other extension of
credit is requested to be made by any Lender or on which any Letter of Credit is
requested to be issued by the Issuing Lender to the Managing Agents and each
Lender that:
5.1 Financial Condition. (a) The consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as of January 31, 1996,
January 31, 1997 and January 31, 1998 and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by KPMG Peat Marwick LLP, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such dates,
and the consolidated results of their operations and their consolidated cash
flows for the fiscal years then ended. The unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at October 31, 1998 and the
related unaudited consolidated statements of income and of cash flows for the
nine-month period ended on such date, certified by a Responsible Officer, copies
of which have heretofore been furnished to each Lender, are complete and correct
and present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated
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results of their operations and their consolidated cash flows for the
nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as
approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein). Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Guarantee Obligation, contingent
liability or liability for taxes, or any long-term lease or other
material agreement or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. During the period from January 31,
1998 to and including the Closing Date (other than the Acquisition and
as set forth on Schedule 5.1(a) hereto) there has been no sale,
transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or
property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in
relation to the consolidated financial condition of the Borrower and
its consolidated Subsidiaries at January 31, 1998.
(b) The Borrower has furnished the Lenders with copies of the
CMI (i) unaudited consolidated balance sheet as of September 30, 1998 (the
"Latest Balance Sheet") and the related consolidated statements of income and
cash flow for the four-month period then ended and (ii) audited consolidated
balance sheets and consolidated statements of income and cash flow for the
fiscal years ended May 31, 1998, 1997 and 1996. Each of the foregoing financial
statements (including in all cases the notes thereto, if any) (the "Financial
Statements") is correct and complete, presents fairly in all material respects
CMI"s and its Subsidiaries" financial condition and results of operations as of
the times and for the periods referred to therein, and except as set forth on
Schedule 5.1(b) hereto (the "Exceptions to GAAP Schedule") has been prepared in
accordance with generally accepted accounting principles consistently applied
("GAAP"), subject in the case of unaudited financial statements to changes
resulting from normal year-end audit adjustments and to the absence of footnote
disclosure. Without limiting the generality of the foregoing, with respect to
the Financial Statements (i) adequate provision has been made for doubtful
accounts; (ii) receivables and sales are stated net of discounts, returns and
allowances; and (iii) all items of income or expense that are unusual or of a
non-recurring nature are separately disclosed on the Financial Statements. As to
CMI and its Subsidiaries, no accounts payable have been written off since May
31, 1998 and no provision in the Financial Statements is necessary under GAAP
(except as otherwise disclosed therein) for liability for product warranties or
the manufacture or sale of defective products.
5.2 No Change; Solvency. Since January 31, 1998, there has
been no development or event which has had or could reasonably be expected to
have a Material Adverse Effect. As of the Closing Date, after giving effect to
the transactions contemplated by the Loan
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Documents, the Borrower and its Subsidiaries are solvent, on a
consolidated basis and on an individual basis.
5.3 Corporate Existence; Compliance with Law. Each of the
Borrower and the other Loan Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except for jurisdictions in which the failure to so
qualify, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Borrower and the other Loan Parties has the corporate power and
authority, and the legal right, to execute, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow
hereunder and each of the Borrower and the other Loan Parties has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and any Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required to be
received, made, given or completed by any of the Loan Parties in connection with
the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which the Borrower or any of the
other Loan Parties is a party other than those set forth on Schedule 5.4 (which
consents, authorizations, filings, notices and other acts have been heretofore
received, made, given or completed). This Agreement has been duly executed and
delivered by the Borrower, and each of the other Loan Documents to which the
Borrower or any of the other Loan Parties is a party will be duly executed and
delivered by the Borrower or such other Loan Party. This Agreement constitutes a
legal, valid and binding obligation of the Borrower, and each other Loan
Document to which the Borrower or any of the other Loan Parties is a party, when
executed and delivered by the Borrower or such other Loan Party, will constitute
a legal, valid and binding obligation of the Borrower or such other Loan Party,
enforceable against the Borrower or such other Loan Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents to which the Borrower or any of the other Loan Parties is a
party, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or material Contractual Obligation of the
Borrower or of any of the other Loan Parties and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation (other than the Loan Documents).
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5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of the other Loan Parties or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) which could reasonably be
expected to have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of the other Loan
Parties is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and the
other Loan Parties has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property is subject to any Lien except as permitted by subsection 8.3. The
properties encumbered by the Fee Mortgages constitute all of the material real
properties owned in fee by the Borrower and the other Loan Parties.
5.9 Intellectual Property. The Borrower and each of the other
Loan Parties owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, except for such
claims which, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, nor does the Borrower know of any valid basis for any
such claim. The use of such Intellectual Property by the Borrower and the other
Loan Parties does not infringe on the rights of any Person, except for such
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law (other
than ongoing compliance in the ordinary course of business with tax laws and
Environmental Laws to the extent that the existence thereof could be understood
to have a Material Adverse Effect) or Contractual Obligation of the Borrower or
any of the other Loan Parties could reasonably be expected to have a Material
Adverse Effect.
5.11 Taxes. Each of the Borrower and the other Loan Parties
has filed or caused to be filed all United States federal income tax returns and
all other material tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any taxes, fees or other charges (i) with
respect to which the failure to pay, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect or (ii) the amount or validity of
which are currently being contested in good faith by appropriate
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proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or any of the other Loan Parties, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Borrower,
no claim is being asserted, with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Loans
or other extensions of credit hereunder have been or will be used "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time after in effect or
for any purpose which violates the provisions of the Regulations of the Board,
including, without limitation, Regulation U thereunder. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
5.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five year
period. The present value of all accrued benefits under all Single Employer
Plans taken as a whole does not exceed the value of the assets of such Single
Employer Plans by more than $75,000,000. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, except that on December 31, 1998, ▇▇▇▇▇ Lemmerz
International-Michigan, Inc. withdrew from National Industrial Group Pension
Plan in connection with which neither the Borrower nor any Commonly Controlled
Entity has incurred any material obligation or liability, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any material
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. As of the Closing Date, and to the knowledge of the Borrower on any
Borrowing Date thereafter, no such Multiemployer Plan is in Reorganization or
Insolvent.
5.14 Collateral. The provisions of each of the Security
Documents, when executed and delivered, will constitute in favor of the
Administrative Agent for the ratable benefit of the Lenders, a legal, valid and
enforceable security interest in all right, title, and interest of the Borrower
or any of the other Loan Parties which is a party to such Security Document, as
the case may be, in the Collateral described in such Security Document, in the
Intercreditor Agreement and in the Intercreditor/Lien Subordination Agreement.
As of the Closing Date, all Equipment and Inventory (as each of such terms is
defined in the Guarantee and Collateral Agreement) of the Borrower and each
other Loan Party will be kept at, or will be in transit to, the locations listed
on Schedule 5.14, and when financing statements have been filed in the offices
in the jurisdictions listed in Schedule 3 to the Guarantee and Collateral
Agreement, when appropriate filings have been made in the U.S. Patent and
Trademark Office and the U.S. Copyright Office, and when such other actions as
are each described in each of the Security Documents have been taken in
accordance with the Security Documents, each of the Security Documents shall
constitute a perfected security interest in all right, title and interest of the
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Borrower or such other Loan Parties, as the case may be, in the Collateral
described therein, in the Intercreditor Agreement and in the Intercreditor/Lien
Subordination Agreement, and except for Liens existing on the Closing Date which
are permitted by subsection 8.3 and whose priority cannot be superseded by the
provisions hereof or of any Security Document and the filings hereunder or
thereunder, a perfected first lien on, and security interest in, all right,
title and interest of the Borrower or such other Loan Parties, as the case may
be, in the Collateral described in each Security Document, in the Intercreditor
Agreement and in the Intercreditor/Lien Subordination Agreement.
5.15 Investment Company Act; Other Regulations. None of the
Borrowers is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. None of the Borrowers is subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board) which limits
its ability to incur Indebtedness.
5.16 Subsidiaries and Joint Ventures. Schedule 5.16 hereto
sets forth all of the Subsidiaries of the Borrower, and all of the joint
ventures in which the Borrower or any of its Subsidiaries has an interest, at
the Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of the Borrower therein.
5.17 Purpose of Loans. The Term Loans shall be used solely to
finance the Acquisition (including the refinancing of indebtedness in connection
therewith) and to pay related fees and expenses, provided that the proceeds of
Term Loans denominated in Deutschemarks or euro units will be used to repay
Revolving Credit Loans the proceeds of which shall have been used for the
foregoing purposes. The Revolving Credit Loans (and Competitive Loans) may be
used by the Borrower for the same purposes as the Term Loans (in an amount
(excluding amounts that will be repaid with the proceeds of Term Loans
denominated in Deutschemarks or euro units) not to exceed $200,000,000) as well
as for the general corporate purposes of the Borrower and its Subsidiaries. The
Swing Line Loans and Letters of Credit shall be used by the Borrower and its
Subsidiaries for ordinary course purposes.
5.18 Environmental Matters. Other than exceptions to any of
the following that would not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect:
(i) The Borrower and the other Loan Parties: (A) are, and
within the period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (B) hold all Environmental
Permits (each of which is in full force and effect) required for any of their
current operations or for any property owned, leased, or otherwise operated by
any of them and have no reason to believe that they will not be able to timely
obtain without material expense all such Environmental Permits required for
planned operations; (C) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental Permits; and
(D) have no reason to believe that: any of their Environmental Permits will not
be, or will entail material expense to be, timely renewed or complied with; any
additional Environmental Permits that may be required of any of them will not
be, or will entail material expense to be, timely granted or complied with; or
that compliance with any
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Environmental Law that is applicable to any of them will not be, or will entail
material expense to be, timely attained and maintained.
(ii) Materials of Environmental Concern have not been
generated, transported, disposed of, emitted, discharged, or otherwise released
or threatened to be released, to or at any real property presently or formerly
owned, leased or operated by the Borrower or any of the other Loan Parties or,
to the best knowledge of the Borrower, at any other location, which could
reasonably be expected to (A) give rise to liability of the Borrower or any of
the other Loan Parties under any applicable Environmental Law, or (B) interfere
with the Borrower's or any other Loan Party's planned or continued operations,
or (C) impair the fair saleable value of any real property owned or leased by
the Borrower or any other Loan Parties.
(iii) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under any
Environmental Law to which the Borrower or any of the other Loan Parties is
named as a party that is pending or, to the knowledge of the Borrower,
threatened.
(iv) Neither the Borrower nor any of the other Loan Parties
has received any written request for information, or been notified that it is a
potentially responsible party, under the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
received any other written request for information with respect to any Materials
of Environmental Concern.
(v) Neither the Borrower nor any of the other Loan Parties has
entered into or agreed to any consent decree, order, or settlement or other
agreement, nor is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum, relating to
compliance with or liability under any Environmental Law, as to which any
obligation has not been fully and finally resolved.
(vi) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or, to the best knowledge of the Borrower, by
operation of law, any liabilities of any kind, fixed or contingent, known or
unknown, under any Environmental Law or with respect to any Material of
Environmental Concern.
5.19 Regulation H. Except as otherwise disclosed in writing to
the Administrative Agent, no Fee Mortgage or Leasehold Mortgage encumbers
improved real property which is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards and in which flood insurance has been made available under the National
Flood Insurance Act of 1968.
5.20 No Material Misstatements. The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of the Borrower and each other Loan Party to the Administrative Agent or the
other Managing Agents and the Lenders in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto do not contain,
and will not contain as of the Closing Date, any material misstatement of fact
and do not, taken as a whole, omit, and will not, taken as a whole, omit as of
the Closing Date, to state any material fact necessary to make the statements
therein, in the light of the circumstances under
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which they were made, not materially misleading. It is understood that no
representation or warranty is made concerning the forecasts, estimates, pro
forma information, projections and statements as to anticipated future
performance or conditions, and the assumptions on which they were based,
contained in any such information, reports, financial statements, exhibits or
schedules, except that as of the date such forecasts, estimates, pro forma
information, projections and statements were generated, (a) such forecasts,
estimates, pro forma information, projections and statements were based on the
good faith assumptions of the management of the Borrower and (b) such
assumptions were believed by such management to be reasonable.
5.21 Labor Matters. There are no strikes pending or, to the
knowledge of the Borrower, threatened against the Borrower or any other Loan
Party which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. The hours worked and payments made to employees
of the Borrower and each other Loan Party have not been in violation of any
applicable laws, rules or regulations, except where such violations would not
reasonably be expected to have a Material Adverse Effect.
5.22 Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of the Borrower's (i)
computer systems and (ii) equipment containing embedded microchips and the
testing of all such systems and equipment, as so reprogrammed, will be completed
by October 31, 1999. The Borrower has not received any written notice and no
senior systems officer has received any oral notice from any Person with regard
to systems and equipment supplied by others or with which the Borrower's systems
interface that any of such systems or equipment will not be Year 2000 compliant
on or before November 30, 1999. The reasonably estimated cost to the Borrower of
such reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower is not reasonably likely to result in an Event of
Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with such upgrading and maintenance as the Borrower reasonably determines is
necessary, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without a Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of the
agreement of each Lender to make and/or continue the Loans or other extensions
of credit requested to be made and/or continued by it hereunder is subject to
the satisfaction, immediately prior to or concurrently with the making and/or
continuation of such Loans or other extensions of credit on the Closing Date
(provided that the Closing Date shall occur on or before March 1, 1999), of the
following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received on or prior to the Closing Date (i) this Agreement, executed
and delivered by a duly authorized officer of the Borrower, with a
counterpart for each Lender, (ii) for the account of each of the
Lenders which has requested a Note pursuant to the terms hereof, a
Revolving Credit Note, a Swing Line Note or a Term Note, as the case
may be, each conforming to the
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requirements hereof and executed and delivered by a duly authorized
officer of the Borrower, (iii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or a conformed copy for each Lender, (iv)
the Copyright, Patent and Trademark Security Agreement, executed and
delivered by a duly authorized officer of the Borrower and the other
signatories thereto, with a counterpart or a conformed copy for each
Lender, (v) such amendments to the Mortgages existing prior to the
Closing Date as may be reasonably requested by the Administrative
Agent, each executed and delivered by a duly authorized officer of each
party thereto, with a counterpart or conformed copy for each Lender,
(vi) Mortgages in respect of the real property acquired by the Borrower
and its Subsidiaries pursuant to the Acquisition, each executed and
delivered by a duly authorized officer of each party thereto, with a
counterpart or conformed copy for each Lender, (vii) the Mexican Stock
Pledge Agreement, executed and delivered by a duly authorized officer
of each party thereto, with a counterpart or conformed copy for each
Lender and (viii) such confirmations of the Foreign Stock Pledge
Agreements as the Administrative Agent may reasonably request, each
executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or conformed copy for each Lender.
(b) Existing Indebtedness. Other than obligations outstanding
under the Prior Credit Agreement, all principal, interest, fees and
other amounts outstanding under the Refinanced Debt shall have been
repaid in full, the commitments thereunder terminated and all
guarantees thereof and security therefor released, and the Arrangers
shall have received reasonably satisfactory evidence thereof, and after
giving effect to the Transactions and the other transactions
contemplated hereby, the Borrower, CMI and their respective
Subsidiaries shall have outstanding no Indebtedness or preferred
Capital Stock other than (a) the loans under the credit facilities
provided for herein, (b) the Senior Subordinated Notes, (c) certain
existing Indebtedness of Foreign Subsidiaries, (d) certain existing
other Indebtedness, guarantees or other obligations (contingent or
otherwise) of Foreign Subsidiaries and (e) other Indebtedness or
preferred Capital Stock permitted or not prohibited herein.
(c) Financial Information. On or prior to the Closing Date,
the Lenders shall have received copies of and shall be reasonably
satisfied, in form and substance, with the financial statements
referred to in subsection 5.1, including, without limitation, the Pro
Forma Balance Sheet. The financial statements referred to in subsection
5.1(b) and the Pro Forma Balance Sheet, in each case, shall not be
materially inconsistent with the applicable forecasts previously
provided to the Lenders.
(d) Borrowing Certificate. On or prior to the Closing Date,
the Administrative Agent shall have received, with a counterpart for
each Lender, a certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrower.
(e) Corporate Proceedings of the Loan Parties. On or prior to
the Closing Date, the Administrative Agent shall have received, with a
counterpart for each Lender, a
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copy of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of each of the Loan
Parties authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) in
the case of the Borrower, the borrowings contemplated hereunder and
(iii) the granting by it of the Liens created pursuant to the Security
Documents, certified by the Secretary or an Assistant Secretary of such
Loan Party as of the Closing Date, which certificate shall be in form
and substance satisfactory to the Administrative Agent and shall state
that the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(f) Incumbency Certificate of the Loan Parties. On or prior to
the Closing Date, the Administrative Agent shall have received, with a
counterpart for each Lender, a certificate of each of the Loan Parties,
dated the Closing Date, as to the incumbency and signature of the
officers of such Loan Party executing any Loan Document satisfactory in
form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(g) Corporate Documents. On or prior to the Closing Date, the
Administrative Agent shall have received, with a counterpart for each
Lender, true and complete copies of the certificate of incorporation
and by-laws of each of the Loan Parties, certified as of the Closing
Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Loan Party (provided that if a Loan Party
has previously provided any of such documents to the Administrative
Agent and such documents have not been amended, supplemented or
otherwise modified since such time, then such Loan Party may so certify
to the Lenders rather than delivering to the Administrative Agent an
additional copy of such document).
(h) Consents, Licenses and Approvals. On or prior to the
Closing Date, the Administrative Agent shall have received a
certificate of a Responsible Officer of the Borrower stating that all
consents, licenses and filings referred to in subsection 5.4 are in
full force and effect.
(i) Fees. The Administrative Agent and the Lenders shall have
received the fees to be received on the Closing Date referred to in
subsection 2.4.
(j) Legal Opinions. On or prior to the Closing Date, the
Administrative Agent shall have received, with a counterpart for each
Lender, the executed legal opinion of the general counsel or assistant
general counsel of the Borrower, substantially in the form of Exhibit
D, with such changes thereto as may be approved by the Administrative
Agent. Such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(k) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall possess the certificates representing the
shares pledged pursuant to the Guarantee and Collateral Agreement and
the Foreign Stock Pledge Agreements, together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof, and the notes pledged pursuant to the
Guarantee
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and Collateral Agreement, each endorsed in blank by a duly authorized
officer of the pledgor thereof, and each of the pledgors to the Foreign
Stock Pledge Agreements shall have consented to the terms of this
Agreement and confirmed its pledge in connection herewith.
(l) Actions to Perfect Liens. On or prior to the Closing Date,
the Administrative Agent shall have received evidence in form and
substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the
filing of duly executed financing statements on Form UCC-1, necessary
or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed
or that all such financing statements and other documents with respect
to such filings, recordings, registrations and other actions shall have
been delivered to the Administrative Agent.
(m) Transactions. The Transactions shall have been consummated
or shall be consummated simultaneously on the Closing Date, in each
case in all material respects in accordance with the terms hereof and
the terms of the relevant documentation therefor (and without the
waiver of any such terms).
(n) Solvency Opinion. The Arrangers and the Lenders shall have
received an opinion, reasonably satisfactory in all respects to the
Lenders and the Arrangers, from an independent valuation firm
reasonably satisfactory to the Lenders and the Arrangers, to the effect
that, after giving effect to the Transactions, the Borrower and its
Subsidiaries will not (a) be insolvent, (b) be rendered insolvent by
the indebtedness incurred in connection therewith, (c) be left with
unreasonably small capital with which to engage in its business or (d)
have incurred debts beyond its ability to pay such debts as they
mature;
(o) Structure; Insurance. The Arrangers shall be satisfied
that there shall not have occurred any material change in the capital,
corporate and organizational structure of the Borrower, CMI and their
respective subsidiaries (after giving effect to the Transactions), and
the Borrower shall have obtained insurance in compliance with the terms
hereof.
6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any Loan or any other extension of credit requested to be
made by it on any date (including, without limitation, its initial extension of
credit), and of the Issuing Lender to issue any Letter of Credit requested to be
issued by it on any date, is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and any other Loan
Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of
such date, except for representations and warranties stated to relate
to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects on and as
of such earlier date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it
shall reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, on and after the Closing Date
and so long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
Consolidated and Consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
Consolidated and Consolidating statements of income and Consolidated
statements of retained earnings and of cash flows for such year,
setting forth (i) in the case of such Consolidated balance sheet, in
comparative form the budgeted figures as at the end of such fiscal year
and the figures as at the end of the previous fiscal year and (ii) in
the case of such Consolidated statements of income and of cash flows,
in comparative form the budgeted figures for such fiscal year and the
figures for the previous fiscal year, reported on, in the case of such
Consolidated financial statements, without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by KPMG Peat Marwick or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited Consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited Consolidated statements of income and
of cash flows of the Borrower and its consolidated Subsidiaries for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth (i) in the case of such Consolidated balance
sheet, in comparative form the budgeted figures as at the end
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of such quarter and the figures as at the end of the corresponding
quarter of the previous fiscal year and (ii) in the case of such
Consolidated statements of income and of cash flows, in comparative
form the budgeted figures for such quarter and the figures for the
corresponding quarter of the previous fiscal year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or Responsible Officer, as the
case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in connection with their audit nothing has come to their
attention to cause them to believe that the Borrower or any of its
Subsidiaries failed to comply with the covenants contained in Section
8; provided that such audit shall not have been directed primarily
toward obtaining knowledge of such noncompliance, except as specified
in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a certificate of a
Responsible Officer ("Compliance Certificate") stating that, to the
best of such Officer's knowledge, during such period (i) no Subsidiary
has been formed or acquired (or, if any such Subsidiary has been formed
or acquired, the Borrower has complied with the requirements of
subsection 7.10 with respect thereto), (ii) neither the Borrower nor
any of its Subsidiaries has changed its name, its principal place of
business, its chief executive office or the location of any material
item of tangible Collateral without complying with the requirements of
this Agreement and the Security Documents with respect thereto, (iii)
the Borrower has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to be observed, performed or satisfied by
it, and (iv) the Borrower has set forth in reasonable detail any and
all calculations necessary to show compliance with subsection 2.1(a)
(including, but not limited to, the proviso therein (for which the
Borrower shall calculate and provide the Dollar Equivalent Amount of
the Aggregate Outstanding Revolving Credit for the first day of the
thirty-day compliance period provided for therein)) and all of the
financial condition covenants set forth in subsections 8.1 and 8.9,
including, without limitation, calculations and reconciliations, if
any, necessary to show compliance with such financial condition
covenants on the basis of generally accepted accounting principles in
the United States consistent with those utilized in preparing the
audited financial statements referred to in subsection 5.1, and that
such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) not later than 45 days after the end of each fiscal year
of the Borrower, a copy of the projections by the Borrower of the
balance sheet, statement of income and statement of cash flows on a
consolidated basis of the Borrower and its Subsidiaries for
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each of the next succeeding two fiscal years, such projections to be
accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders generally, and within five days after the same are filed,
copies of all financial statements and reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, including, without limitation,
taxes, except where (a) the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Borrower
or its Subsidiaries, as the case may be, or (b) the failure to so pay, discharge
or otherwise satisfy such obligations could not, in the aggregate, be reasonably
be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 8.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition,
reasonable wear and tear excepted; maintain with financially sound and reputable
insurance companies insurance on all the Collateral in accordance with the
requirements of Section 5.3 of the Guarantee and Collateral Agreement, Section 5
of each of the Fee Mortgages and Section 5 of each of the Leasehold Mortgages
and on all its other property in at least such amounts (including as to amounts
of deductibles) and against at least such risks (but including in any event
commercial general liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable notice and as often as may reasonably be desired and to
discuss the business,
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operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants (provided that any
officers or employees of the Borrower shall be permitted to be present at any
such discussions between representatives of any Lender and the Borrower's
independent certified public accountants).
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, including,
without limitation, under the Senior Subordinated Notes or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries (i) in which the amount involved is $30,000,000 or
more and not covered by insurance or (ii) in which injunctive or
similar relief is sought which could reasonably be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; and
(f) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, (i) any release or
discharge by the Borrower or any of its Subsidiaries of any Materials
of Environmental Concern required to be reported under applicable
Environmental Laws to any Governmental Authority, unless the Borrower
reasonably determines that the total Environmental Costs arising out of
such release or discharge are unlikely to exceed $30,000,000 or to have
a Material Adverse Effect; (ii) any condition, circumstance, occurrence
or event not previously disclosed in writing to the Administrative
Agent that could result in liability under applicable Environmental
Laws unless the Borrower reasonably determines that the total
Environmental Costs arising out of such condition, circumstance,
occurrence or event are unlikely to exceed
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$30,000,000 or to have a Material Adverse Effect, or could result in
the imposition of any Lien or other restriction on the title, ownership
or transferability of any facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect; and (iii) any
proposed action to be taken by the Borrower or any of its Subsidiaries
that would reasonably be expected to subject the Borrower or any of its
Subsidiaries to any material additional or different requirements or
liabilities under Environmental Laws, unless the Borrower determines
that the total Environmental Costs arising out of such proposed action
are unlikely to exceed $30,000,000 or to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws. (a) (i) Comply substantially with, and
undertake all reasonable efforts to ensure substantial compliance by all
tenants, subtenants, and contractors with, all applicable Environmental Laws;
(ii) obtain, comply substantially with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (iii)
undertake all reasonable efforts to ensure that all tenants, subtenants, and
contractors obtain, comply substantially with and maintain any and all
Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Borrower or its Subsidiaries. For purposes of this subsection 7.8(a), the
Borrower and its Subsidiaries shall be deemed to comply substantially, or
require substantial compliance, with an Environmental Law or an Environmental
Permit, provided that they comply with subsection 7.8(c) and that, upon learning
of any actual or suspected noncompliance, the Borrower and any such affected
Subsidiary shall promptly undertake all reasonable efforts, if any, to achieve
compliance, and provided, further, that in any case such noncompliance would not
reasonably be expected to have a Material Adverse Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than any such order
or directive as to which an appeal or other appropriate contest is or has been
timely and properly taken, is being diligently pursued in good faith, and the
pendency of such appeal or other appropriate contest would not reasonably be
expected to have a Material Adverse Effect.
(c) Maintain, update as appropriate, and implement in all
material respects an environmental program reasonably designed to (i) ensure
that the Borrower, its Subsidiaries, any of their respective operations
(including, without limitation, disposal), and any properties owned, leased or
operated by any of them, attain and remain in substantial compliance with all
applicable Environmental Laws and (ii) reasonably and prudently manage any
liabilities or potential liabilities that the Borrower, any of the other Loan
Parties, any of their respective operations (including, without limitation,
disposal), and any properties owned or leased by any of them, may have under all
applicable Environmental Laws.
7.9 Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all acts
and execute or cause to be executed any and all documents (including, without
limitation, financing statements and
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continuation statements) for filing under the provisions of the Uniform
Commercial Code or any other Requirement of Law which are reasonably necessary
or advisable to maintain in favor of the Administrative Agent, for the benefit
of the Lenders, Liens on the Collateral that are duly perfected in accordance
with all applicable Requirements of Law.
7.10 Additional Collateral. (a) With respect to any assets (or
any interest therein) acquired after the Closing Date by the Borrower or any of
its Subsidiaries (excluding (x) real estate (including leasehold interests
therein) the fair market value of which is less than $2,000,000 per parcel, (y)
any assets described in paragraph (b) or (c) of this subsection and (z) any
asset acquired by a Foreign Subsidiary) as to which the Administrative Agent,
for the benefit of the Lenders, does not have a perfected Lien, promptly (and in
any event within 30 days after the acquisition thereof): (i) execute and deliver
to the Administrative Agent such amendments to the relevant Security Documents
or such other documents as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a Lien on such assets (or such interest therein), (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements and the recording of Mortgages in such
jurisdictions as may be requested by the Administrative Agent (provided that the
Borrower and its Subsidiaries shall not be required to deliver certificates to
the Administrative Agent in respect of (A) any foreign joint venture equity
interest (i.e. an equity interest of 50% or less of the outstanding equity
interests of a joint venture) owned by (x) the Borrower and/or any Domestic
Subsidiary or Subsidiaries the fair market value of which is less than
$30,000,000 or (y) any Foreign Subsidiary, (B) any domestic joint venture equity
interest (i.e. an equity interest of 50% or less of the outstanding equity
interests of a joint venture) owned by the Borrower and/or any Domestic
Subsidiary, the fair market value of which is less than $2,000,000 or (C) any
joint venture equity interest with respect to which such delivery is prohibited
by the organizational documents of such joint venture), (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent, and (iv) if reasonably requested by
the Administrative Agent, deliver to the Administrative Agent surveys, title
insurance and flood insurance.
(b) With respect to any Person that, subsequent to the Closing
Date, becomes a Subsidiary (other than a Foreign Subsidiary and provided that a
Subsidiary shall not be required to comply with the provisions of this
subsection 7.10(b) until such time as the fair market value of its assets is
greater than $2,000,000), promptly: (i) execute and deliver to the
Administrative Agent, for the benefit of the Lenders, a new Pledge Agreement or
such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent shall deem necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary
which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such
new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement
or to a new Security Agreement, in each case pursuant to an annex to the
Guarantee and Collateral Agreement or otherwise pursuant to documentation which
is in form and substance satisfactory to the Administrative Agent, and (B)
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to take all actions necessary or advisable to cause the Lien created by the
Guarantee and Collateral Agreement or such Security Agreement to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by the Administrative Agent and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any Person that subsequent to the Closing
Date becomes a Foreign Subsidiary (provided that the requirements of this
subsection 7.10(c) need not be complied with until such time as the aggregate
fair market value of the assets of such Foreign Subsidiary is greater than
$2,000,000) shares of the Capital Stock of which are owned directly by the
Borrower or a Domestic Subsidiary, promptly upon the request of the
Administrative Agent: (i) execute and deliver to the Administrative Agent a new
Pledge Agreement or such amendments to the Collateral and Guarantee Agreement as
the Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such Subsidiary (provided that in no event shall more than 65% of the
Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver
to the Administrative Agent any certificates representing such Capital Stock,
together with undated stock powers executed and delivered in blank by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be, and
take or cause to be taken all such other actions under the law of the
jurisdiction of organization of such Foreign Subsidiary as may be necessary or
advisable to perfect such Lien on such Capital Stock and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) At its own expense, request, and use reasonable efforts to
obtain, prior to entering into a lease of a facility located in the United
States at which Inventory of any of the Loan Parties the fair market value of
which exceeds $5,000,000 will be located on or after the Closing Date, a
consent, in such form as may be reasonably satisfactory to the Administrative
Agent, from the landlord of each such facility, pursuant to which such landlord
acknowledges the Administrative Agent's first priority security interest in such
Inventory.
7.11 Title Insurance. Within 30 days after the Closing Date,
deliver to the Administrative Agent all title insurance, surveys and customary
related documents in connection with the Mortgages and amendments to the
Mortgages.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that on and after the Closing Date
and, so long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
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8.1 Financial Condition Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio as of the end of
each fiscal quarter of the Borrower set forth below to be greater than
the ratio set forth opposite such fiscal quarter set forth below:
Fiscal Quarter Leverage Ratio
1999 1st 5.50 to 1.00
2nd 5.50 to 1.00
3rd 5.25 to 1.00
4th 5.25 to 1.00
2000 1st 5.00 to 1.00
2nd 5.00 to 1.00
3rd 4.75 to 1.00
4th 4.75 to 1.00
2001 1st 4.50 to 1.00
2nd 4.25 to 1.00
3rd 4.00 to 1.00
4th 3.75 to 1.00
2002 1st 3.50 to 1.00
2nd 3.50 to 1.00
3rd 3.50 to 1.00
4rd 3.50 to 1.00
2003 1st 3.25 to 1.00
2nd 3.25 to 1.00
3rd 3.25 to 1.00
4rd 3.25 to 1.00
2004 1st 3.25 to 1.00
2nd 3.25 to 1.00
3rd 3.25 to 1.00
4th 3.25 to 1.00
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio as of the end of each fiscal quarter of the Borrower set forth
below to be less than the ratio set forth opposite such fiscal quarter
set forth below:
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Fiscal Quarter Interest Coverage Ratio
1999 1st 2.00 to 1.00
2nd 2.00 to 1.00
3rd 2.00 to 1.00
4th 2.00 to 1.00
2000 1st 2.00 to 1.00
2nd 2.00 to 1.00
3rd 2.25 to 1.00
4th 2.25 to 1.00
2001 1st 2.25 to 1.00
2nd 2.25 to 1.00
3rd 2.50 to 1.00
4th 2.75 to 1.00
2002 1st 2.75 to 1.00
2nd 2.75 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2003 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2004 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as of the end of each fiscal quarter of the Borrower set
forth below to be less than the ratio set forth opposite such fiscal
quarter set forth below:
Fiscal Quarter Fixed Charge Coverage Ratio
1999 1st 1.00 to 1.00
2nd 1.00 to 1.00
3rd 1.00 to 1.00
4th 1.00 to 1.00
2000 1st 1.00 to 1.00
2nd 1.00 to 1.00
3rd 1.05 to 1.00
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4th 1.05 to 1.00
2001 1st 1.05 to 1.00
2nd 1.05 to 1.00
3rd 1.05 to 1.00
4th 1.05 to 1.00
2002 1st 1.05 to 1.00
2nd 1.05 to 1.00
3rd 1.05 to 1.00
4th 1.10 to 1.00
2003 1st 1.10 to 1.00
2nd 1.10 to 1.00
3rd 1.10 to 1.00
4th 1.15 to 1.00
2004 1st 1.15 to 1.00
2nd 1.15 to 1.00
3rd 1.15 to 1.00
4th 1.15 to 1.00
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries under
this Agreement and any Notes (including, without limitation, Swing Line
Loans in an aggregate principal amount not to exceed $100,000,000);
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(c) Dollar Indebtedness evidenced by the Borrower Notes and
the Senior Subordinated Notes and, in the case of such Borrower Notes,
any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension of such Borrower
Notes and the terms and conditions thereof (including, without
limitation, terms and conditions relating to the interest rate, fees,
amortization, maturity, subordination (provided that such terms and
conditions relating to subordination are no less favorable to the
Lenders than those of such Borrower Notes), covenants, events of
default and remedies) are no less favorable to the Borrower than those
of such Borrower Notes as in effect on the Closing Date;
(d) Dollar Indebtedness and Non-Dollar Indebtedness of the
Borrower and its Subsidiaries under Permitted Hedging Arrangements
permitted by subsection 8.15;
(e) Indebtedness of the Borrower and the Guarantor
Subsidiaries outstanding on the Closing Date listed on Schedule 8.2(e)
and any refinancings,
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refundings, renewals or extensions thereof; provided that the amount of
such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension;
(f) Indebtedness of a Person which becomes a Guarantor
Subsidiary after the Closing Date; provided that (i) such Indebtedness
existed at the time such Person became a Subsidiary and was not created
in anticipation thereof and (ii) immediately after giving effect to the
acquisition of such Person by the Borrower or a Subsidiary no Default
or Event of Default shall have occurred and be continuing, and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension;
(g) Indebtedness of the Borrower or any of its Guarantor
Subsidiaries incurred to finance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise) in
an aggregate principal amount not exceeding as to the Borrower and its
Guarantor Subsidiaries $125,000,000 at any time outstanding;
(h) Indebtedness of the Borrower and its Subsidiaries under
uncommitted lines of credit in an aggregate outstanding principal
Dollar Equivalent Amount not exceeding at any time the lesser of (i)
the then Available Revolving Credit Commitments (other than any such
Available Revolving Credit Commitments required to be maintained
pursuant to subsection 4.3(h)) and (ii) $50,000,000;
(i) Indebtedness incurred by the Borrower or any of its
Subsidiaries in connection with a Permitted Receivable Financing;
provided that the Net Cash Proceeds of such Indebtedness shall be
applied to make mandatory prepayments of the Loans or pay or prepay
other outstanding Indebtedness of the Borrower and its Guarantor
Subsidiaries pursuant to subsection 4.3(b);
(j) Indebtedness of the Borrower and its Guarantor
Subsidiaries in an aggregate amount not in excess of $110,000,000 in
connection with synthetic leases secured in accordance with subsection
8.3(p);
(k) Dollar Indebtedness of the Borrower incurred in respect of
senior subordinated notes issued in one or more series in an aggregate
principal amount not to exceed $400,000,000 on terms and conditions
substantially similar to the December 1998 Senior Subordinated Notes
except that the interest rate payable thereon shall be based on market
conditions at the date of incurrence; provided that the Net Cash
Proceeds of such Indebtedness (other than any such Indebtedness to the
extent that it refinances, refunds or replaces any other Senior
Subordinated Notes) shall be applied to make mandatory prepayments of
the Loans and to reduce permanently the Revolving Credit Commitments
pursuant to subsection 4.3(b); and
(l) Indebtedness of Non-Guarantor Subsidiaries in an aggregate
outstanding principal Dollar Equivalent Amount, when added to the then
aggregate outstanding principal Dollar Equivalent Amount of
Indebtedness of ▇▇▇-▇▇▇▇▇▇▇▇▇
▇▇
▇▇
Subsidiaries under uncommitted lines of credit, not to exceed
$350,000,000 at any time; provided that at no time shall (A) (x) the
excess of (i) the aggregate outstanding principal Dollar Equivalent
Amount of such Indebtedness that constitutes Short Term Indebtedness
(including, without limitation, Indebtedness under uncommitted lines of
credit) over (ii) $150,000,000 exceed (y) the then aggregate Available
Revolving Credit Commitments (other than any such Available Revolving
Credit Commitments required to be maintained pursuant to subsection
4.3(h)) or (B) the aggregate outstanding principal Dollar Equivalent
Amount of such Indebtedness that constitutes Short-Term Indebtedness
exceed $260,000,000.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) carrier's, warehousemen's, mechanic's, landlord's,
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary conducted at the property subject thereto;
(f) Liens on the property or assets of a Person which becomes
a Subsidiary after the Closing Date securing Indebtedness permitted by
subsection 8.2(f); provided that (i) such Liens existed at the time
such Person became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or
assets of such Person after the time such corporation becomes a
Subsidiary, and (iii) the amount of Indebtedness secured thereby is not
increased;
(g) Liens created pursuant to the Security Documents;
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(h) Liens in existence on the Closing Date listed on Schedule
8.3(h), securing Indebtedness permitted by subsection 8.2(l); provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(i) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(g) incurred to finance the
acquisition of fixed or capital assets; provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, and (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness;
(j) Liens on assets of any Foreign Subsidiary (including, in
the case of any Foreign Subsidiary which is not a direct Subsidiary of
the Borrower or any Domestic Subsidiary, the Capital Stock of such
Foreign Subsidiary) securing Indebtedness of such Foreign Subsidiary
permitted by subsection 8.2(l);
(k) Liens arising by reason of any judgment, decree or order
of any court or other Governmental Authority, if appropriate legal
proceedings are being diligently prosecuted and shall not have been
finally terminated or the period within which such proceedings may be
initiated shall not have expired, in an aggregate amount not to exceed
$15,000,000 at any time outstanding;
(l) leases and subleases of real property owned or leased by
the Borrower or any of its Subsidiaries not interfering with the
ordinary conduct of the business of the Borrower and its Subsidiaries;
(m) Liens arising from the sale or other disposition of any
accounts receivable in connection with a receivables financing
transaction otherwise permitted by subsection 8.6(g) and Liens in
respect of assets sold or otherwise disposed of pursuant to subsection
8.6(j);
(n) renewals, extensions and replacements of the Liens
permitted under clauses (f) and (h) above; provided that no such Lien
shall as a result thereof cover any additional assets and the principal
amount of Indebtedness secured thereby is not increased;
(o) Liens securing Non-Dollar Indebtedness of any Foreign
Subsidiary incurred pursuant to subsections 8.2(l) to finance the
construction or acquisition of fixed or capital assets, provided that
(i) such Liens shall be created substantially simultaneously with the
construction or acquisition of such fixed or capital assets and (ii)
such Liens do not at any time encumber any property other than the
property of such Foreign Subsidiary financed by such Indebtedness; and
(p) Liens securing obligations in an amount not in excess of
$110,000,000 in connection with synthetic leases to finance the
construction, acquisition or use of fixed or capital assets, which
Liens may be on any or all of the assets and property of the Borrower
and its Guarantor Subsidiaries; provided that (i) the documentation
creating or
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otherwise relating to such Liens shall be in form and substance
satisfactory to the Majority Lenders (a form of documentation approved
by the Majority Lenders under this Agreement or the Prior Credit
Agreement for use in one synthetic lease financing may be used in
substantially such form for subsequent synthetic lease financings
without further approval by the Majority lenders), (ii) as compared to
the first priority security interest granted by the Borrower and its
Guarantor Subsidiaries to the Lenders, such Lien shall be a junior and
second priority security interest to the extent such Lien is granted in
the Collateral and (iii) to the extent such Lien is granted in
Collateral, the Borrower and applicable creditors shall enter into an
intercreditor agreement with the Administrative Agent on behalf of the
Lenders in form and substance satisfactory to the Majority Lenders (a
form of intercreditor agreement approved by the Majority Lenders under
this Agreement or the Prior Credit Agreement for use in one synthetic
lease financing may be used in substantially such form for subsequent
synthetic lease financings without further approval by the Majority
Lenders).
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and
listed on Schedule 8.4(a), and any refinancing, refundings, renewals or
extensions thereof provided that the amount of such Guarantee
Obligation shall not be increased at the time of such refinancing,
refunding, extension or renewal;
(b) guarantees made in the ordinary course of its business by
the Borrower or any of its Subsidiaries of obligations of any of the
Borrower's Guarantor Subsidiaries, which obligations are otherwise
permitted under this Agreement;
(c) the Guarantee and Collateral Agreement and any of the
other Guarantees;
(d) Guarantee Obligations of certain Subsidiaries of the
Borrower set forth in any of the Senior Subordinated Notes and the
related Senior Subordinated Note Indenture which are subordinated as
provided therein;
(e) Guarantee Obligations in respect of Indebtedness of a
Person or Persons in connection with one or more joint ventures in an
aggregate amount not exceeding at any time outstanding, when aggregated
with the amount of any Investments permitted by subsection 8.9(g) which
are outstanding at such time, an amount equal to the amount of
Investments permitted by subsection 8.9(g) to be made in such a Person
or Persons; provided that no Default or Event of Default shall have
occurred and be continuing on the date of the incurrence of any such
Guarantee Obligations or would result therefrom;
(f) Guarantee Obligations consisting of any Reimbursement
Obligation in respect of Letters of Credit;
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(g) Guarantee Obligations of a Person which becomes a
Subsidiary after the Closing Date; provided that (i) such Guarantee
Obligations existed at the time such Person became a Subsidiary and
were not created in anticipation thereof and (ii) immediately after
giving effect to the acquisition of such Person by the Borrower no
Default or Event of Default shall have occurred and be continuing, and
any refinancings, refundings, renewals or extensions thereof; provided,
further, that the amount of such Guarantee Obligations is not increased
at the time of such refinancing, refunding, renewal or extension;
(h) Guarantee Obligations in respect of synthetic leases
entered into by the Borrower or any Subsidiary in an aggregate amount
not to exceed $110,000,000; and
(i) Guarantee Obligations of the Borrower and the
Non-Guarantor Subsidiaries (including, without limitation, those
resulting from the issuance of Letters of Credit) in respect of
Indebtedness permitted by subsection 8.2(l), provided that at no time
shall the aggregate Dollar Equivalent Amount of such Guarantee
Obligations (x) of the Borrower and the Non-Guarantor Subsidiaries
exceed $150,000,000 or (y) of the Borrower exceed the then aggregate
Available Revolving Credit Commitments (other than any such Available
Revolving Credit Commitments required to be maintained pursuant to
subsection 4.3(h)).
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more Wholly Owned Subsidiaries of the Borrower (provided that
the Wholly Owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) any Wholly Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Wholly Owned
Subsidiary of the Borrower;
(c) mergers and consolidations in connection with Investments
permitted under subsection 8.9(e), subject to compliance with
subsection 7.10; and
(d) sales and other dispositions of assets permitted by
subsection 8.6.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any Wholly Owned Subsidiary, except:
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(a) the sale or other disposition of any property in the
ordinary course of business;
(b) the sale or other disposition of any assets at fair market
value; provided that the Net Cash Proceeds of all sales of assets
permitted by this clause (b) in excess of $50,000,000 are applied to
make mandatory prepayments and permanent reductions of the Revolving
Credit Commitments pursuant to subsection 4.3(c), except that (i) the
Borrower and the Guarantor Subsidiaries may use up to $150,000,000 in
the aggregate of such excess Net Cash Proceeds received by them in any
fiscal year of the Borrower to acquire within 180 days after the
receipt thereof, assets used or useful in the business of the Borrower
and the Guarantor Subsidiaries, and such excess amount so used need not
be so applied pursuant to subsection 4.3(c) and (ii) the Non-Guarantor
Subsidiaries may use all such excess Net Cash Proceeds received by
them, within 180 days of the receipt thereof, to (x) prepay, repay or
purchase Indebtedness of Non-Guarantor Subsidiaries permitted by
subsection 8.2 or (y) acquire assets used or useful in the businesses
of Non-Guarantor Subsidiaries, and such excess amount so used shall not
be required to be so applied pursuant to subsection 4.3(c);
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof;
(d) as permitted by subsection 8.5(b);
(e) transfers of property or assets in connection with
Investments permitted under subsection 8.9(g);
(f) sales, leases, conveyances, transfers or other
dispositions to the Borrower or to any Subsidiary of the Borrower or to
any Person if after giving effect to such sale, lease, conveyance,
transfer or other disposition such other Person becomes a Subsidiary,
subject to compliance with subsection 7.10 and, to the extent
applicable, subsection 8.9;
(g) the sale or other disposition of any accounts receivable
in connection with a Permitted Receivables Financing, so long as the
Net Cash Proceeds of such sale or other disposition are applied as
provided in subsection 4.3(c);
(h) dispositions resulting from any casualty or condemnation
of any property; provided that the proceeds of any such single
disposition of property permitted by this clause (h) in excess of
$20,000,000 are applied pursuant to subsection 4.3(h);
(i) the sale or other disposition of any Specified Assets at
fair market value; provided that the Net Cash Proceeds of all sales of
Specified Assets permitted by this clause (i) are applied as provided
in subsection 4.3(c), except that (i) any such Net Cash Proceeds of
sales or other dispositions of Specified Assets permitted by this
clause (i) to the extent that they are used to (x) make Investments
permitted by subsection 8.9(e) within 180 days of receipt thereof or
(y) acquire assets used or useful in the businesses of
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the Borrower and its Subsidiaries within 180 days of receipt thereof,
shall not be required to be applied as provided in subsection 4.3(c);
(j) the sale or other disposition of assets in connection with
one or more sale and leaseback transactions as to which the resulting
Lease Expense shall not exceed $25,000,000 (provided that in connection
therewith the Administrative Agent shall be authorized to enter into an
intercreditor agreement on behalf of the Lenders in respect of such
assets if requested to do so by the Borrower on terms and conditions
reasonably satisfactory to the Administrative Agent), so long as the
Net Cash Proceeds of such sale or other disposition are applied to make
mandatory prepayments and permanent reductions of the Revolving Credit
Commitments pursuant to subsection 4.3(c); and
(k) the sale or other disposition of assets in connection with
one or more sale and leaseback transactions on customary terms in
respect of assets purchased after the Closing Date and no more than one
year prior to the consummation of such sale and leaseback transaction.
8.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except for dividends, payments or distributions solely in common
stock of the Borrower.
8.8 Limitation on Capital Expenditures. Make any expenditure,
other than pursuant to subsection 8.9, in respect of the purchase or other
acquisition of fixed or capital assets (a "Capital Expenditure") except for
expenditures in the ordinary course of business not exceeding, in the aggregate
for the Borrower and its Subsidiaries during any of the test periods set forth
below, the amount set forth opposite such test period set forth below:
Test Period Amount
----------- ------
February 1, 1999 - January 31, 2000 $200,000,000
February 1, 2000 - January 31, 2001 200,000,000
February 1, 2001 - January 31, 2002 200,000,000
February 1, 2002 - January 31, 2003 190,000,000
February 1, 2003 - January 31, 2004 190,000,000
February 1, 2004 - January 31, 2005 190,000,000
provided that (a) up to $60,000,000 of any Capital Expenditures permitted to be
made during any test period and not made during such test period may be carried
over and expended during the next succeeding test period (it being understood
and agreed that any Capital Expenditures made during such next succeeding test
period shall count, first, against the amount permitted to be made during such
next succeeding test period as set forth in the table above and, second, against
any amounts carried over to such next succeeding test period) and (b) up to
$40,000,000 of any Capital Expenditures permitted to be made during any test
period and not made during such test period (to the extent not expended during
the next succeeding test period) may be carried over
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and expended during the second succeeding test period (it being understood and
agreed that any Capital Expenditures made during such second succeeding test
period shall count, first, against the amount permitted to be made during such
second succeeding test period as set forth in the table above, second, against
any amounts carried over to such second succeeding test period from the
immediately preceding test period and, third, against any amounts carried over
to such second succeeding test period from the second preceding test period).
8.9 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make or permit to exist any other
investment, in cash or by transfer of assets or property, in, any Person (each,
an "Investment"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business;
(d) Investments by the Borrower in its Subsidiaries and
Investments by such Subsidiaries in the Borrower and in other
Subsidiaries of the Borrower;
(e) Investments by the Borrower or any of its Subsidiaries in
a Person, if as a result of any such Investment (i) such Person becomes
a Subsidiary of the Borrower, subject to compliance with subsection
7.10, or (ii) such Person is merged or consolidated with or into, or
transfers or conveys the assets which are the subject of such
Investment to, or is liquidated into, the Borrower or any of its
Subsidiaries; provided that (y) no Default or Event of Default shall
have occurred and be continuing on the date of any such Investment or
would result therefrom and (z) the aggregate amount of consideration
(other than consideration consisting of common stock of the Borrower)
given by the Borrower and its Subsidiaries in respect of all such
Investments ("Non-Stock Consideration") subsequent to the date hereof
shall not exceed $400,000,000;
(f) Investments by the Borrower or any of its Subsidiaries in
the form of promissory notes that are issued to the Borrower or such
Subsidiary by a Person which is not the Borrower or such Subsidiary
solely as partial consideration for the consummation of an asset sale
or other disposition permitted by subsection 8.6 (not to exceed 25% of
the total consideration received by the Borrower or such Subsidiary in
respect of such asset sale); provided that the aggregate principal
amount of such promissory notes as to all such asset sales or other
dispositions does not exceed $15,000,000 at any time outstanding and
such promissory notes held by the Borrower or any Domestic Subsidiary
are pledged to the Administrative Agent for the benefit of the Lenders
pursuant to the Security Documents;
(g) Investments in a Person or Persons in connection with one
or more joint ventures (in addition to those permitted by subsection
8.9(j)) in an aggregate amount,
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when aggregated with the amount of any Guarantee Obligations permitted
by subsection 8.4(e) which are outstanding at such time and
disregarding the amount of any Investments permitted by subsection
8.9(j), not to exceed $50,000,000 at any one time outstanding; provided
that such amount shall be increased by an amount equal to the aggregate
amount of cash returned on or on account of Investments permitted under
this clause (g), whether through interest payments, principal payments,
dividends or other distributions or payments, provided, further that no
Investment shall be permitted under this clause (g) if any Default or
Event of Default shall have occurred and be continuing on the date of
any such Investment or would result therefrom;
(h) Investments in the nature of promissory notes, other
securities or other property received in connection with the bankruptcy
or reorganization of Persons having obligations in favor of the
Borrower or its Subsidiaries, in settlement of such obligations;
provided that such promissory notes, other securities or other property
held by the Borrower or any Domestic Subsidiary are pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(i) Investments paid for solely in common stock of the
Borrower; and
(j) Investments in existence on the date hereof (including in
joint ventures) that are listed on Schedule 8.9(j).
8.10 Limitation on Optional Payments and Modifications of Debt
Instruments. (a) (i) Make any optional payment or prepayment on or repurchase or
redemption or purchase of any of the Senior Subordinated Notes or the Borrower
Notes (including, without limitation, any payment on account of, or for a
sinking or other analogous fund for the repurchase, redemption, defeasance or
other acquisition thereof); provided that a series of Senior Subordinated Notes
may be refinanced, refunded or replaced on terms and conditions more favorable
to the Borrower and the Lenders than those applicable to such series being so
refinanced, refunded or replaced or (ii) amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms of such
Indebtedness or any instrument, document or other agreement pursuant to which
the same shall have been issued or created (other than any such amendment,
modification or change which would (A) extend the maturity or reduce the amount
of any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon or (B) amend the Senior Subordinated Notes,
other than the December 1998 Senior Subordinated Notes, to contain provisions
identical in all material respects to the December 1998 Senior Subordinated
Notes).
(b) In the event of the occurrence of a Change of Control,
repurchase any of the Senior Subordinated Notes or Borrower Notes or any portion
thereof, unless the Borrower shall have (i) repaid in full the Loans, all
Reimbursement Obligations and any other amounts then due and owing to any Lender
or the Administrative Agent hereunder and under any Note or any other Loan
Document and cash collateralized the L/C Obligations on terms reasonably
satisfactory to the Administrative Agent or (ii) made an offer to repay the
Loans, all Reimbursement Obligations and any other amounts then due and owing to
each Lender and the Administrative Agent hereunder and under any Note or any
other Loan Document and to cash collateralize the L/C Obligations in respect of
each Lender and shall have made repayment in full thereof to each
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such Lender or the Administrative Agent which has accepted such offer and cash
collateralized the L/C Obligations in respect of each such Lender which has
accepted such offer.
8.11 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate. This subsection 8.11 shall
not apply to customary investment banking underwriter, placement agent or
financial advisor fees paid to CIBC and its Affiliates in connection with
services rendered to the Borrower or its Subsidiaries.
8.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than January 31.
8.13 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement which prohibits or limits the ability of the Borrower
or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement, (b) agreements in effect on the Closing
Date, including, without limitation, the Senior Subordinated Note Indentures or
any refinancing, refunding, renewal or extension thereof which is permitted
hereunder, (c) customary non-assignment provisions under contracts to the extent
such provisions prohibit or limit the ability to ▇▇▇▇▇ ▇ ▇▇▇▇ on the rights
under such contracts, (d) agreements under which Indebtedness permitted
hereunder is incurred by Foreign Subsidiaries, to the extent such agreements
prohibit or limit Liens on assets of such Foreign Subsidiaries (including, in
the case of Foreign Subsidiaries which are not direct Subsidiaries of the
Borrower or any Domestic Subsidiary, the Capital Stock of such Foreign
Subsidiaries), (e) restrictions on granting Liens on assets under agreements to
sell or otherwise dispose of such assets, (f) restrictions in Indebtedness
incurred to finance the acquisition of fixed or capital assets or Financing
Leases permitted hereunder with respect to Liens on the assets financed
thereunder and (g) restrictions in Indebtedness permitted by subsection 8.2(j).
8.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or any joint venture, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the Closing
Date or which are related thereto (provided that the Borrower and its
Subsidiaries may acquire unrelated businesses in connection with the acquisition
of a related business permitted hereunder so long as such unrelated business is
not a material portion of the assets acquired in such acquisition).
8.15 Limitations on Currency and Commodity Hedging
Transactions. Enter into, purchase or otherwise acquire agreements or
arrangements relating to currency, commodity or other hedging except, to the
extent and only to the extent that, such agreements or arrangements are entered
into, purchased or otherwise acquired in the ordinary course of business of the
Borrower or any of its Subsidiaries with reputable financial institutions and
not for purposes of investment or speculation (any such agreement or arrangement
permitted by this subsection, a
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"Permitted Hedging Arrangement"), including the two Dollar/Deutschemark currency
swaps entered into by the Borrower in connection with the June 1997 Senior
Subordinated Notes.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any of the Borrowers shall fail to pay any principal of
any Loan or any Reimbursement Obligation when due in accordance with
the terms thereof or hereof; or any Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof (it being agreed that any
amounts payable hereunder (other than principal, interest, commitment
fees and letter of credit fees) shall be due on the date which is five
days after the Administrative Agent or the applicable Lender shall give
written notice thereof to the applicable Borrower); or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other written statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall
prove to have been incorrect in any material respect on or as of the
date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection
7.7(a) or Section 8; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section 9), and such default shall
continue unremedied for a period of 30 days or, in the case of any
agreement contained in subsection 7.1 or 7.2, such default shall
continue unremedied for a period ending on the date three days after
notice has been given to the Borrower by the Administrative Agent or
any Lender of the expiration of such 30 day period; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than the Loans and the Reimbursement Obligations) in excess of
$30,000,000 or in the payment of any Guarantee Obligation in excess of
$30,000,000, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or
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beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such
Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Majority
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $30,000,000 or
more, and all such judgments or decrees shall not have been
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vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) Except as, and to the extent, permitted by this Agreement,
(i) any of the Security Documents or any of the other Loan Documents
shall cease, for any reason, to be in full force and effect, or the
Borrower or any other Loan Party which is a party to any of the
Security Documents or any of the other Loan Documents shall so assert
or (ii) the Lien created by any of the Security Documents shall cease
to be enforceable and of the same effect and priority purported to be
created thereby, and, in any such case, such cessation or, in the case
of clause (i), assertion thereof shall affect a material portion of the
Collateral; or
(j) The occurrence of any Change of Control; or
(k) Any of the Senior Subordinated Notes, for any reason,
shall not be or shall cease to be validly subordinated, as provided
therein and in the related Senior Subordinated Note Indenture, to the
obligations of the Borrower under this Agreement, any Notes and the
other Loan Documents, or the obligations of any other Loan Party under
a guarantee of any of the Senior Subordinated Notes, for any reason,
shall not be or shall cease to be validly subordinated as provided
therein and in the related Senior Subordinated Note Indenture to the
obligations of such Loan Party under the Guarantee and Collateral
Agreement or any of the Guarantees to which it is a party; or
(l) (i) If any of the remaining contributions referred to in
the PBGC Agreement in an aggregate amount in excess of $10,000,000
shall not be paid within 30 days after the date on which such
contributions are due if such remaining contributions in an aggregate
amount in excess of $10,000,000 shall become immediately due and
payable prior to the stated maturity thereof or (ii) any Lien in favor
of the PBGC shall arise on the assets of the Borrower or any of its
Subsidiaries with respect to the transactions contemplated by the PBGC
Agreement or the definitive documentation with respect to the PBGC
Agreement (it being understood and agreed that the Lenders shall not
seek to enjoin any such Liens from arising based on subsection 8.3);
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and
automatically the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all
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amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. Within a
reasonable period after all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the within security
interest in such cash collateral account.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE MANAGING AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints CIBC as the Administrative Agent, Credit Suisse First Boston as the
Syndication Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ as Co-Documentation, Agent and Dresdner Bank AG
as Co-Documentation Agent, in each case under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes each such Managing Agent,
in such capacities, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent, the
Syndication Agent and the Co-Documentation Agents, respectively, by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the Administrative Agent nor the other
Managing Agents shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against either the Administrative Agent or the other Managing
Agents.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such
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duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 Exculpatory Provisions. Neither the Administrative Agent,
the other Managing Agents nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent or the other Managing Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations
hereunder or thereunder. Neither the Administrative Agent nor the other Managing
Agents shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any other Loan Party.
10.4 Reliance by Administrative Agent and Other Managing
Agents. Each of the Administrative Agent and the other Managing Agents shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to any Borrower),
independent accountants and other experts selected by it. The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Majority Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof, reasonably promptly thereof to the other
Managing Agents and to the Lenders. The Administrative Agent shall take such
action reasonably promptly with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Lenders;
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provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.6 Non-Reliance on Administrative Agent, Other Managing
Agents and Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent, the other Managing Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent or the other Managing Agents hereinafter taken, including any review of
the affairs of the Borrower or any other Loan Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent or the
other Managing Agents to any Lender. Each Lender represents to the
Administrative Agent and the other Managing Agents that it has, independently
and without reliance upon the Administrative Agent or the other Managing Agents
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or the
other Managing Agents or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower or any of the
other Loan Parties and the other Loan Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent and the other Managing
Agents shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or any of the other Loan Parties which may come into the possession of
the Administrative Agent or the other Managing Agents or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each of
the Administrative Agent and the other Managing Agents in their respective
capacities as such (to the extent not reimbursed by the Borrower or any of the
other Loan Parties and without limiting the obligation of the Borrower or any of
the other Loan Parties to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent or the other Managing Agents in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent or the other Managing Agents under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages,
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penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's or the other Managing Agents' gross negligence
or willful misconduct, as the case may be. The agreements in this subsection
shall survive the payment of the Loans and all other amounts payable hereunder.
10.8 Administrative Agent and Other Managing Agents in Their
Individual Capacities. The Administrative Agent, the other Managing Agents and
their respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or any other Loan
Party as if the Administrative Agent and the other Managing Agents were not the
Administrative Agent or the other Managing Agents, as the case may be, hereunder
and under the other Loan Documents. With respect to the Loans made by it and
with respect to any Letter of Credit issued or participated in by it, each of
the Administrative Agent and the other Managing Agents shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent
or the other Managing Agents, as the case may be, and the terms "Lender" and
"Lenders" shall include each of the Administrative Agent and the other Managing
Agents in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, such former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Administrative Agent under this Agreement and the other Loan
Documents.
10.10 Issuing Lender. The provisions of this Section 10 shall
apply to the Issuing Lender in its capacity as such and to the European Swing
Line Administrator in its capacity as such to the same extent that such
provisions apply to the Administrative Agent.
10.11 Releases of Guarantees and Collateral. In connection
with the sale or other disposition of all of the Capital Stock of any Guarantor
or the sale or other disposition of Collateral (as defined in each of the
Security Documents) permitted under subsection 8.6, the Administrative Agent
shall, and is hereby authorized by the Lenders to, promptly, upon the request of
the Borrower and at the sole expense of the Borrower, take all actions
reasonably necessary to release such Guarantor from its guarantee contained in
the Guarantee and Collateral Agreement or its Guarantee or to release the
Collateral subject to such sale or other disposition, as the case may be, and
shall take any other actions reasonably requested by the Borrower to effect the
transactions permitted under subsection 8.6.
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10.12 Foreign Pledge Agreement. Each Lender has authorized the
Administrative Agent to enter into a Foreign Stock Pledge Agreement (and/or a
confirmation thereof) with HLI (Europe) Ltd., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, pursuant to which certain present and future shares in HLI Sub as well
as certain rights and claims relating thereto are pledged as security to the
Lenders and the Administrative Agent. The Administrative Agent is authorized to
agree on any provisions and to make all declarations that it considers in its
discretion necessary or appropriate in this context, including any amendments of
such Foreign Stock Pledge Agreement. The Administrative Agent is released of the
restrictions set forth in Section 181 German Civil Code and authorized to
delegate this power of attorney or grant sub-power of attorney.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower and the other Loan Parties written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of amending, supplementing or modifying any provisions of this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Majority Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided that no such waiver and no such amendment, supplement or
modification shall:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or any installment thereof or any Reimbursement
Obligation or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Commitments, in each case without the consent of each Lender affected
thereby; or
(ii) amend, modify or waive any provision of this subsection
11.1 or reduce the percentage specified in the definition of Majority
Lenders, or consent to the assignment or transfer by any of the
Borrowers of any of its rights and obligations under this Agreement and
the other Loan Documents or release any guarantee obligation contained
in the Guarantee and Collateral Document, the Borrower Guarantee or any
of the other Guarantees or release all or a substantial part of the
Collateral (other than in connection with any release permitted by
subsection 10.11), in each case without the written consent of all the
Lenders; or
(iii) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent; or
(iv) amend, modify or waive any provision of this Agreement
regarding the application of prepayment amounts to the installments of
principal under the Term Loans
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without the written consent of the Term Loan Lenders the Term Loan
Commitment Percentages of which aggregate more than 50%; or
(v) subject to clause (i) of this subsection 11.1(a) as it
relates to reducing the amount or extending the scheduled date of
maturity of any Loan or any installment thereof, amend, modify or waive
any provision of subsection 2.9 without the written consent of Term
Loan Lenders the Term Loan Commitment Percentages of which aggregate
more than 50%; or
(vi) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3, 2.5, 2.6 or 2.7 or, subject to paragraph (i) of this
subsection 11.1(a) as it relates to reducing the amount or extending
the scheduled date of maturity of any Reimbursement Obligation, Section
3 without the written consent of the Revolving Credit Lenders the
Revolving Credit Commitment Percentages of which aggregate more than
50%; or
(vii) amend, modify or waive any provision of any Swing Line
Note, subsection 2.6 or any Foreign Currency Swing Line Loan Agreement
without the written consent of each Swing Line Lender affected thereby;
or
(viii) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the
affected Issuing Lender;
(ix) amend, modify or waive any provision of any Security
Document that provides for the ratable sharing by the Lenders under
such Security Document of the proceeds of any realization on the
Collateral to provide for a non-ratable sharing thereof, without the
consent of (y) the Majority Revolving Credit Lenders, and (z) the Term
Loan Lenders the Term Loan Commitment Percentages of which aggregate
more than 50%; or
(x) amend, modify or waive any provision of the Loan
Documents in respect of an outstanding Competitive Bid Loan without the
consent of each Lender that made such Loan.
Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand or
by overnight courier, when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and each Managing Agent, as set
forth in Schedule A in the case of the
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other parties hereto, and as set forth in the applicable Subsidiary Borrower
Agreement in the case of a Subsidiary Borrower or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower:
▇▇▇▇▇ Lemmerz International, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ Lemmerz International, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Syndication Agent:
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Co-Documentation Agents:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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Dresdner Bank AG
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.12, 3.2, 4.2, 4.4 or
4.8 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents (or
in any amendment, modification or supplement hereto or thereto) and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent and the other Managing Agents for all
their respective out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby (including
the syndication of the Revolving Credit Commitments and Term Loans (including
the reasonable expenses of the Administrative Agent's due diligence
investigation)), including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and the other Managing
Agents, (b) to pay or reimburse each Lender and the Administrative Agent for all
their respective costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to the respective Lenders and the Administrative Agent, (c) to pay,
indemnify, and hold each Lender, the Administrative Agent, the other Managing
Agents and the European Swing Line Administrator harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, the
Administrative Agent, the other Managing Agents and the European Swing Line
Administrator and their respective directors, trustees,
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officers, affiliates, employees and agents harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents or the use or proposed use of the
proceeds of the Loans in connection with the transactions contemplated hereby
and thereby and any such other documents regardless of whether the
Administrative Agent or any Lender is a party to the litigation or other
proceeding giving rise thereto and regardless of whether any such litigation or
other proceeding is brought by the Borrower or any other Person, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or any of the facilities and
properties owed, leased or operated by the Borrower or any of its Subsidiaries
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender or any other Person with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the party seeking indemnification. The agreements in this subsection shall
survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, other Managing Agents and their
respective successors and assigns, except that none of the Borrowers may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating interests in
any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. No Lender shall be entitled to
create in favor of any Participant, in the participation agreement pursuant to
which such Participant's participating interest shall be created or otherwise,
any right to vote on, consent to or approve any matter relating to this
Agreement or any other Loan Document except for those matters specified in
clauses (i) and (ii) of the proviso to subsection 11.1. The Borrower agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 11.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled
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to the benefits of subsections 4.10, 4.11 and 4.12 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 4.11, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time and
from time to time assign to any Lender or any branch or affiliate thereof or,
with the consent of the Borrower and the Administrative Agent (which in each
case shall not be unreasonably withheld or delayed), to an additional bank or
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit F, executed by
such Assignee and such assigning Lender (and, in the case of an Assignee that is
not then a Lender or a branch or an affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank or financial institution, if such assignment is
of less than all of the rights and obligations of the assigning Lender, the sum
of the aggregate principal amount of the Loans, the aggregate amount of the L/C
Obligations and the aggregate amount of the Available Revolving Credit
Commitment being assigned shall not be less than $5,000,000 (or such lesser
amount as may be agreed to by the Borrower and the Administrative Agent). Upon
such execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto but shall nonetheless continue to be entitled to the benefits of
subsections 4.10, 4.11, 4.12 and 11.5). Notwithstanding any provision of this
paragraph (c) and paragraph (e) of this subsection, the consent of the Borrower
shall not be required for any assignment which occurs at any time when any of
the Events of Default described in Section 9(f) shall have occurred and be
continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
11.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amounts of the Loans owing to, each Lender
from time to time (whether or not evidenced by a Note). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the designated Assignee and the old Note shall be
returned by the Administrative Agent to the Borrower marked "canceled". The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the
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Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of a Loan or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan or other obligation (whether or not evidenced by a Note) hereunder shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall
promptly accept such Assignment and Acceptance and record the information
contained therein in the Register. Such Assignment and Acceptance and the
assignment evidenced thereby shall only be effective upon appropriate entries
with respect to the information contained therein being made in the Register
pursuant to subsection 11.6(d).
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to such Person agreeing to comply with the provisions of subsection
11.15, any and all financial and other information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) Other than as provided for in
subsection 2.6 in respect of the Swing Line Lenders, if any Lender (a
"benefitted Lender") shall at any time receive any payment of all or part of its
Loans or the Reimbursement Obligations owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or the Reimbursement Obligations owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders a
participating interest (or, at the option of such benefitted Lender, a direct
interest) in such portion of each such other Lender's Loan or the Reimbursement
Obligations owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided that if all or
any portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
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(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount remaining unpaid (including,
without limitation, any amount owing to such Lender in respect of an undivided
participation interest purchased by such Lender in any Swing Line Loan pursuant
to subsection 2.6(d) or an undivided interest purchased by such Lender in any
draft paid by the Issuing Lender under any Letter of Credit pursuant to
subsection 3.4(a)) after it becomes due and payable by a Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any affiliate, branch or agency thereof to or for the
credit or the account of a Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
and the Fee Letter represent the agreement of the Loan Parties, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents or the
Fee Letter.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of the
Borrowers hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive
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general jurisdiction of the courts of the State of New York, the courts
of the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address referred to in subsection 11.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
11.13 Acknowledgments. Each of the Borrowers hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and such Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among such Borrower and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential
any written information (a) provided to it by or on behalf of the Borrower or
any of its Subsidiaries pursuant to or in connection with this Agreement or (b)
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries; provided that nothing herein shall
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prevent any Lender from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to any Transferee, prospective
Transferee or to any direct or indirect contractual counterparty in swap
agreements payments with respect to which are related to payments made pursuant
to this Agreement or such contractual counterparty's professional advisors, in
each case, which agrees to comply with the provisions of this subsection, (iii)
to its employees, directors, agents, attorneys, affiliates, accountants and
other professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender or as shall be required pursuant
to any Requirement of Law, (v) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) in connection with any litigation to which such Lender
is a party, (vii) which has been publicly disclosed other than in breach of this
Agreement, or (viii) to the extent reasonably necessary, in connection with the
exercise of any remedy hereunder.
11.16 Effect of Amendment and Restatement of the Prior Credit
Agreement. On the Closing Date, the Prior Credit Agreement shall be amended,
restated and superseded in its entirety. The parties hereto acknowledge and
agree that (a) this Agreement and the other Loan Documents executed and
delivered in connection herewith do not constitute a novation, payment and
reborrowing, or termination of the "Obligations" (as defined in the Loan
Documents in respect of the Prior Credit Agreement) under the Prior Credit
Agreement as in effect prior to the Closing Date; (b) such "Obligations" are in
all respects continuing (as amended and restated hereby) with only the terms
thereof being modified as provided in this Agreement; and (c) the Liens and
security interests as granted under the Security Documents (as defined herein)
securing payment of such "Obligations" are in all respects continuing and in
full force and effect and secure the payment of the Obligations (as defined in
the Loan Documents in respect of this Agreement).
11.17 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the second Business Day
preceding the day on which final judgment is given.
(b) The obligation of each of the Borrowers in respect of any
sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement or the other Loan Documents (the "Agreement
Currency"), be discharged only to the extent that on the second Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in the Judgment Currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to such Lender or the Administrative Agent (as the case may be) in the
Agreement Currency, each of the Borrowers agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Lender or the Administrative Agent (as the case may be), such Lender or the
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Administrative Agent (as the case may be) agrees to remit to the Borrower such
excess. The obligations of each of the Borrowers contained in this subsection
11.17 shall survive the termination of this Agreement and the payment of all
amounts owing hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
▇▇▇▇▇ LEMMERZ INTERNATIONAL, INC.
By:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as
Administrative Agent, Co-Lead Arranger
and as a Lender
By:
Title:
CREDIT SUISSE FIRST BOSTON, as
Syndication Agent, Co-Lead Arranger and
as a Lender
By:
Title:
By:
Title:
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES, as Co-Documentation
Agent, as European Swing Line
Administrator and as a Lender
By:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as
Co-Documentation Agent
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By:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION, as
Lender
By:
Title:
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SCHEDULE B
APPLICABLE MARGIN AND APPLICABLE COMMITMENT FEE RATE
Applicable Margin
Applicable
Commitment Fee
Leverage Ratio LIBOR Spread Base Rate Spread Rate
------------------------------------------------------------ ------------- ------------------ --------------
Greater than or equal to 5.250 to 1 2.50 % 1.00 % 0.500 %
Less than 5.250 to 1 but greater than or equal to 4.750
to 1 2.25 % .75 % 0.500 %
Less than 4.750 to 1 but greater than or equal to 4.250
to 1 2.00 % .50 % 0.425 %
Less than 4.250 to 1 but greater than or equal to 3.750
to 1 1.75 % .25 % 0.375 %
Less than 3.750 to 1 but greater than or equal to 3.250
to 1 1.50 % .00 % 0.300 %
Less than 3.250 to 1 1.25 % .00 % 0.300 %
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SCHEDULE C
AVAILABLE FOREIGN CURRENCIES
TERM LOANS
1. Deutschemarks or such other lawful currency of Germany.
1. euro unit.
FOREIGN CURRENCY REVOLVING CREDIT LOANS, FOREIGN CURRENCY COMPETITIVE
LOANS AND FOREIGN CURRENCY LETTERS OF CREDIT
1. Deutschemarks or such other lawful currency of Germany.
2. U.K. Pounds Sterling or such other lawful currency of England.
3. French Francs or such other lawful currency of France.
4. euro unit.
FOREIGN CURRENCY SWING LINE LOANS
1. Deutschemarks or such other lawful currency of Germany.
2. Lire or such other lawful currency of Italy.
3. Belgian Francs or such other lawful currency of Belgium.
4. Guilders or such other lawful currency of the Netherlands.
5. Pesetas or such other lawful currency of Spain.
6. Turkish Lira or such other lawful currency of Turkey.
2. euro unit.
3. Brazilian Real or such other lawful currency of Brazil.