EXHIBIT 99.1
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CREDIT AGREEMENT
dated as of
June 28, 2006
among
AMERICAN AXLE & MANUFACTURING, INC.,
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................... 1
SECTION 1.02. Types of Loans and Borrowings..................................... 23
SECTION 1.03. Terms Generally................................................... 23
SECTION 1.04. Accounting Terms; GAAP............................................ 24
ARTICLE II
The Loans
SECTION 2.01. Commitments....................................................... 24
SECTION 2.02. Loans and Borrowings.............................................. 24
SECTION 2.03. Funding of Borrowings............................................. 25
SECTION 2.04. Interest Elections................................................ 25
SECTION 2.05. Termination of Commitments........................................ 26
SECTION 2.06. Repayment of Loans; Evidence of Debt.............................. 27
SECTION 2.07. Prepayment of Loans............................................... 27
SECTION 2.08. Administrative Fees............................................... 30
SECTION 2.09. Interest.......................................................... 30
SECTION 2.10. Alternate Rate of Interest........................................ 31
SECTION 2.11. Increased Costs................................................... 31
SECTION 2.12. Break Funding Payments............................................ 32
SECTION 2.13. Taxes............................................................. 33
SECTION 2.14. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....... 35
SECTION 2.15. Mitigation Obligations; Replacement of Lenders.................... 36
SECTION 2.16. Incremental Term Loans............................................ 37
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................. 38
SECTION 3.02. Authorization; Enforceability..................................... 38
SECTION 3.03. Governmental Approvals; No Conflicts.............................. 38
SECTION 3.04. Financial Condition; No Material Adverse Change................... 39
SECTION 3.05. Litigation and Environmental Matters.............................. 39
SECTION 3.06. Compliance with Laws and Agreements............................... 39
SECTION 3.07. Investment Company Status......................................... 39
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SECTION 3.08. Taxes............................................................. 39
SECTION 3.09. ERISA............................................................. 40
SECTION 3.10. Disclosure........................................................ 40
SECTION 3.11. Subsidiaries...................................................... 40
ARTICLE IV
Conditions
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information........................ 42
SECTION 5.02. Notices of Material Events........................................ 43
SECTION 5.03. Existence; Conduct of Business.................................... 44
SECTION 5.04. Payment of Obligations............................................ 44
SECTION 5.05. Maintenance of Properties; Insurance.............................. 44
SECTION 5.06. Books and Records; Inspection Rights.............................. 44
SECTION 5.07. Compliance with Laws.............................................. 45
SECTION 5.08. Use of Proceeds................................................... 45
SECTION 5.09. Additional Guarantors............................................. 45
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness...................................................... 45
SECTION 6.02. Liens............................................................. 48
SECTION 6.03. Fundamental Changes............................................... 49
SECTION 6.04. Restricted Payments............................................... 50
SECTION 6.05. Transactions with Affiliates...................................... 53
SECTION 6.06. Restrictive Agreements............................................ 53
SECTION 6.07. Sales of Assets and Subsidiary Stock.............................. 54
ARTICLE VII
Events of Default
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ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices........................................................... 60
SECTION 9.02. Waivers; Amendments............................................... 60
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................ 61
SECTION 9.04. Successors and Assigns............................................ 62
SECTION 9.05. Survival.......................................................... 65
SECTION 9.06. Counterparts; Integration; Effectiveness.......................... 66
SECTION 9.07. Severability...................................................... 66
SECTION 9.08. Right of Setoff................................................... 66
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process........ 67
SECTION 9.10. WAIVER OF JURY TRIAL.............................................. 67
SECTION 9.11. Headings.......................................................... 68
SECTION 9.12. Confidentiality................................................... 68
SECTION 9.13. Interest Rate Limitation.......................................... 69
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.05 -- Disclosed Matters
Schedule 3.11 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Existing Transactions with Affiliates
Schedule 6.06 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Guarantee Agreement
Exhibit B -- Form of Assignment and Assumption
Exhibit C-1 -- Form of Opinion of General Counsel to the Borrower
Exhibit C-2 -- Form of Opinion of Shearman & Sterling LLP
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CREDIT AGREEMENT dated as of June 28, 2006, among
AMERICAN AXLE & MANUFACTURING, INC., AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC., the LENDERS party hereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, and BANK
OF AMERICA, N.A., as Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Account" means, collectively, (a) an "account" as such term is
defined in the Uniform Commercial Code as in effect from time to time in the
State of New York or under other relevant law, (b) a "payment intangible" as
such term is defined in the Uniform Commercial Code as in effect from time to
time in the State of New York or under other relevant law, and (c) the Parent's
or any Subsidiary's rights to payment for goods sold or leased or services
performed or rights to payment in respect of any monetary obligation owed to the
Parent or any Subsidiary, including all such rights evidenced by an account,
note, contract, security agreement, chattel paper, or other evidence of
indebtedness or security.
"Acquired/Disposed EBITDA" means, with respect to any Acquired
Entity or Business or any Sold Entity or Business (any of the foregoing, a "Pro
Forma Entity") for any period, the Consolidated Net Income of such Pro Forma
Entity for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income for such Pro Forma Entity, the sum
of (i) income tax expense for such period, (ii) gross interest expense for such
period (including interest-equivalent costs associated with any Permitted
Receivables Financing, whether accounted for as interest expense or loss on the
sale of Receivables), (iii) depreciation and amortization expense for such
period, (iv) any special charges and any extraordinary or nonrecurring losses
for such period and (v) other non-cash items reducing Consolidated Net Income
for such period, and minus (b) without duplication and to the extent included in
determining Consolidated Net Income, (i) interest income for such period, (ii)
extraordinary or nonrecurring gains for such period and (iii) other non-cash
items increasing Consolidated Net Income for such period, all determined on a
consolidated basis for such Pro Forma Entity in accordance with GAAP.
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"Acquired Entity or Business" has the meaning assigned to such term
in the definition of "Consolidated EBITDA".
"Additional Lender" has the meaning assigned to such term in Section
2.16.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus -1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively. If
for any reason the Administrative Agent shall have determined that it is unable
after due inquiry to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no longer
exist.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments or outstanding Loans, as applicable,
represented by such Lender's Commitment or outstanding Loans, as applicable. If
the Commitments have terminated and all Loans have been repaid, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect or outstanding Loans at the time of repayment, as applicable.
"Applicable Rate" means, for any day, (a) with respect to any ABR
Loan, 3.25%, and (b) with respect to any Eurodollar Loan, 4.25%.
"Approved Fund" has the meaning assigned to such term in Section
9.04.
"Arrangers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Banc of America
Securities LLC, each in its capacity as joint lead arranger in respect of the
credit facility established hereunder.
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"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Parent or any Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "disposition"), of:
(a) any Equity Interests of a Subsidiary (other than directors'
qualifying shares or shares required by applicable law to be held by a
Person other than the Parent or a Subsidiary);
(b) all or substantially all the assets of any division or line of
business of the Parent or any Subsidiary; or
(c) any other assets of the Parent or any Subsidiary outside of the
ordinary course of business of the Parent or such Subsidiary
other than, in the case of clauses (a), (b) and (c) above,
(i) a disposition by a Subsidiary to the Parent or by the Parent or
a Subsidiary to a Subsidiary;
(ii) a disposition that constitutes a Restricted Payment (or would
constitute a Restricted Payment but for the exclusions from the definition
thereof) and that is not prohibited by Section 6.04;
(iii) a disposition of assets with a fair market value of less than
$10,000,000;
(iv) the lease, assignment, sublease, license or sublicense of any
real or personal property in the ordinary course of business and
consistent with past practice;
(v) foreclosure on assets or transfers by reason of eminent domain;
(vi) disposition of accounts receivable in connection with the
collection or compromise thereof;
(vii) a disposition of surplus, obsolete or worn out equipment or
other property in the ordinary course of business;
(viii) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing;
(ix) any substantially concurrent exchange of assets of comparable
value to be used in a Related Business;
(x) a disposition of cash or Cash Equivalents; and
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(xi) the creation of a Lien (but not the sale or other disposition
of the property subject to such Lien).
"Asset Disposition Offer" has the meaning assigned to such term in
Section 2.07(b)(ii).
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit B or any other form approved by the Administrative Agent.
"Average Life" means, as of the date of determination, with respect
to any Indebtedness, the quotient obtained by dividing:
(a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of or redemption or similar payment with respect to such Indebtedness
multiplied by the amount of such payment by
(b) the sum of all such payments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means American Axle & Manufacturing, Inc., a Delaware
corporation.
"Borrowing" means Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any
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agency or instrumentality thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, a
rating of at least A-1 by S&P or P-1 by Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 270 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, (i) any Lender, (ii) any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof or any foreign country recognized by the
United States of America which has a combined capital and surplus and
undivided profits of not less than $250,000,000 (or the foreign currency
equivalent thereof) or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇
is at least P-1 or the equivalent thereof;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above;
(e) money market funds that (i) comply with the criteria set forth
in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and
(iii) have portfolio assets of at least $5,000,000,000;
(f) securities with maturities of six months or less from the date
of acquisition issued or fully guaranteed by any State, commonwealth or
territory of the United States of America, or by any political subdivision
or taxing authority thereof, and rated at least A by S&P or Moody's;
(g) in the case of any Foreign Subsidiary, (i) direct obligations of
the sovereign nation (or any agency thereof) in which such Subsidiary is
organized and is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency
thereof), (ii) investments of the type and maturity described in clauses
(a) through (f) above of foreign obligors, which investments or obligors
(or the parents of such obligors) have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies and (iii)
investments of the type and maturity described in clauses (a) through (f)
above of foreign obligors (or the parents of such obligors), which
investments of obligors (or the parents of such obligors) are not rated as
provided in such clauses or in clause (ii) above but which are, in the
reasonable judgment of the Parent and the Borrower, comparable in
investment quality to such investments and obligors (or the parents of
such obligors);
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(h) shares of mutual funds whose investment guidelines restrict 95%
of such funds' investments to those satisfying the provisions of clauses
(a) through (f) above; and
(i) time deposit accounts, certificates of deposits and money market
deposits in an aggregate face amount not in excess 1% of Total Assets of
the Parent as of the end of the Parent's most recently completed fiscal
year.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Parent; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Parent by Persons who were neither (i) nominated by the board
of directors of the Borrower or the Parent nor (ii) appointed by directors so
nominated; (c) the acquisition of direct or indirect Control of the Parent by
any Person or group; (d) the failure of the Parent to own, directly or
indirectly, at least 75% of the outstanding Equity Interests of the Borrower; or
(e) at any time that any Existing Senior Debt is outstanding, the occurrence of
a Change of Control, as defined in the indentures referred to in the definitions
of "Existing Senior Debt" and "Convertible Notes".
"Change in Control Offer" has the meaning assigned to such term in
Section 2.07(c)(iii).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.11(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Loans pursuant to Section 2.01, as such commitment may be
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Commitment, as applicable. The
aggregate amount of the Commitments on the date hereof is $200,000,000.
"Consolidated EBITDA" means, of any Person for any period,
Consolidated Net Income of such Person for such period plus (a) without
duplication and
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to the extent deducted in determining such Consolidated Net Income, the sum of
(i) income tax expense for such period, (ii) gross interest expense for such
period (including interest-equivalent costs associated with any Permitted
Receivables Financing, whether accounted for as interest expense or loss on the
sale of Receivables), (iii) depreciation and amortization expense for such
period, (iv) any special charges and any extraordinary or nonrecurring losses
for such period and (v) other non-cash items reducing such Consolidated Net
Income for such period, and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, (i) interest income for
such period, (ii) extraordinary or nonrecurring gains for such period and (iii)
other non-cash items increasing such Consolidated Net Income for such period,
all determined on a consolidated basis in accordance with GAAP; provided that
for purposes of determining the Leverage Ratio only, (A) there shall be included
in determining the Consolidated EBITDA of the Parent for any period the
Acquired/Disposed EBITDA of any Person, property, business or asset acquired
outside the ordinary course of business during or after the end of such period
by the Parent or a Subsidiary, to the extent not subsequently sold, transferred
or otherwise disposed of by the Parent or a Subsidiary (each such Person,
property, business or asset acquired and not subsequently so disposed of, an
"Acquired Entity or Business"), based on the actual Acquired/Disposed EBITDA of
such Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) and (B) there shall be excluded in
determining Consolidated EBITDA of the Parent for any period the
Acquired/Disposed EBITDA of any Person, property, business or asset sold,
transferred or otherwise disposed of outside the ordinary course of business by
the Parent or any Subsidiary during or after the end of such period (each such
Person, property, business or asset so sold or disposed of, a "Sold Entity or
Business") based on the actual Acquired/Disposed EBITDA of such Sold Entity or
Business for such period (including the portion thereof occurring prior to such
sale, transfer or disposition).
"Consolidated Net Income" means, of any Person for any period, the
net income or loss of such Person for such period determined on a consolidated
basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Convertible Notes" means the 2% senior convertible notes due 2024
issued pursuant to the indenture, dated as of February 11, 2004, between the
Parent and BNY Midwest Trust Company, as trustee.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Secured Indebtedness" means Indebtedness secured by a
Lien permitted under clause (d) or (e) of Section 6.02.
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"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.05.
"Disqualified Stock" means any Equity Interest that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable (other than as a result of a Change in Control), pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, or requires the payment of any cash
dividend or any other scheduled payment constituting a return of capital, in
each case at any time on or prior to the date that is 91 days after the Maturity
Date, or (b) is convertible into or exchangeable (unless at the sole option of
the issuer thereof) for (i) Indebtedness or (ii) any Equity Interest referred to
in clause (a) above, in each case at any time prior to the date that is 91 days
after the Maturity Date.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Article IV are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources or
the management, release or threatened release of any Hazardous Material.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Parent or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Parent, is treated as a single employer
under
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Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any Plan of
an "accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the
Parent or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Parent or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Parent or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Parent or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Parent or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Subsidiary" means, at any time, any Subsidiary affected by
an event referred to in clause (h), (i) or (j) of Article VII at such time that
would constitute an Event of Default if such Subsidiary was not an "Excluded
Subsidiary"; provided, that (a) no Loan Party shall be an Excluded Subsidiary
and (b) a Subsidiary shall not be an Excluded Subsidiary if such Subsidiary (on
a consolidated basis with all other Excluded Subsidiaries affected by an event
referred to in clause (h), (i) or (j) of Article VII and their respective
subsidiaries) (i) account for more than 10% of Total Assets of the Parent or
(ii) account for more than 10% of the consolidated revenues of the Parent and
the Subsidiaries for the most recently ended period of four consecutive fiscal
quarters for which financial statements are available, in each case, determined
in accordance with GAAP.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income, franchise or similar taxes
imposed on (or measured by) its net income or, in the case of franchise or
similar taxes, gross receipts, by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located or in which such Lender is otherwise doing
business, (b) any branch profits taxes imposed by the United States of
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America or any similar tax imposed by any other jurisdiction in which the
Borrower is located, (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.15(b)), any Tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office)
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.13(a), (d) any taxes attributable to a failure by a
Lender or the Administrative Agent to comply with Section 2.13(e), (e) any taxes
imposed as a result of a change in the circumstances of such Lender after
becoming a Lender hereunder, other than a change in law or regulation or the
introduction of any law or regulation or a change in interpretation or
administration of any law and (f) all liabilities, penalties and interest with
respect to any of the foregoing Excluded Taxes.
"Existing Credit Agreement" means the Credit Agreement, dated as of
January 9, 2004, as amended, among the Borrower, the Parent, the several lenders
party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, including
any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith and in each case, as amended, restated,
supplemented, modified, renewed, refunded, replaced (whether at maturity or
otherwise) or refinanced from time to time in one or more agreements or
indentures (in each case with the same or new lenders or institutional
investors), including any agreement adding or changing the borrower or any
guarantors or extending the maturity thereof or otherwise restructuring all or a
portion of the Indebtedness thereunder or increasing the amount loaned or issued
thereunder or altering the maturity thereof (provided that such increase in
borrowings is permitted under Section 6.01).
"Existing Senior Debt" means the 5-1/4% senior notes due 2014 issued
pursuant to the indenture, dated as of February 11, 2004, between the Borrower
and BNY Midwest Trust company, as trustee, and the Convertible Notes, in each
case outstanding as of the Effective Date.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it; provided, that if such day is not
a Business Day, the Federal Funds Effective Rate for such day shall be the same
as that for the next preceding Business Day.
"Financial Officer" means, with respect to the Parent or the
Borrower, the chief financial officer, principal accounting officer, treasurer
or controller thereof, as applicable.
11
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business or
customary and reasonable indemnity obligations entered into in connection with
any acquisition or disposition of assets permitted under this Agreement.
"Guarantee Agreement" means the Guarantee Agreement, substantially
in the form of Exhibit A, among the Borrower, the Guarantors and the
Administrative Agent.
"Guarantors" means, as of any date, the Parent and each Subsidiary
that either (a) has Guaranteed (pursuant to a Guarantee that remains in effect
as of such date) the obligations under the Existing Credit Agreement or any
refinancing or replacement thereof, or (b) is a Material Subsidiary as of such
date.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials,
12
polychlorinated biphenyls, radon gas and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Incremental Facility Amendment" has the meaning assigned to such
term in Section 2.16.
"Incremental Facility Closing Date" has the meaning assigned to such
term in Section 2.16.
"Incremental Term Loans" has the meaning assigned to such term in
Section 2.16.
"Incur" means issue, assume, incur, Guarantee or otherwise become
liable for; provided that any Indebtedness of a Person existing at the time such
Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes
a Subsidiary. The term "Incurrence" when use as a noun shall have a correlative
meaning. The accretion of principal of a noninterest bearing or discount
security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid
(excluding current accounts payable incurred in the ordinary course of
business), (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, (k) all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock of such Person and (l)
Receivables Financing Debt. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor; provided, that if the sole asset of such Person is its
ownership interest in such other entity, the amount of such Indebtedness shall
be deemed equal to the value of such ownership interest. For the avoidance of
doubt, the Indebtedness of the Borrower or any other Subsidiary shall not
include any obligations of the Borrower or such other Subsidiary arising in the
ordinary course of business from the establishment, offering and maintenance by
the Borrower or
13
such other Subsidiary, as the case may be, of trade payables financing programs
under which suppliers to the Borrower or such other Subsidiary, as the case may
be, can request accelerated payment from one or more designated financial
institutions; provided, that (i) the Borrower or such other Subsidiary, as the
case may be, reimburses the designated financial institution or institutions for
such accelerated payment on the date specified in the purchase terms and
conditions previously agreed upon by the applicable supplier and the Borrower or
such other Subsidiary, as the case may be and (ii) had such financial
institution or institutions not paid such obligations to the applicable
supplier, such obligations would have been required to be classified as a trade
payable in the consolidated financial statements of the Borrower or such other
Subsidiary, as the case may be, prepared in accordance with GAAP.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.04.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan
with an Interest Period of more than three months' duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter (or such other period agreed to by each Lender
participating in such Borrowing), as the Borrower may elect; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investment" in any Person means any direct or indirect advance
(other than accounts receivable, trade credit, advances to customers or
suppliers, commission, travel and similar advances to employees, in each case
made in the ordinary course of business), loan or other extension of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Equity Interests, Indebtedness or other similar instruments
issued by, such Person. If the Parent or any Subsidiary issues, sells or
14
otherwise disposes of any Equity Interests of a Person that is a Subsidiary such
that, after giving effect thereto, such Person is no longer a Subsidiary, any
Investment by the Parent or any Subsidiary in such Person remaining after giving
effect thereto will be deemed to be a new Investment at such time. The
acquisition by the Parent or any Subsidiary of a Person that holds an Investment
in a third Person will be deemed to be an Investment by the Parent or such
Subsidiary in such third Person at such time. Except as otherwise provided for
herein, the amount of an Investment shall be its fair market value at the time
the Investment is made and without giving effect to subsequent changes in value.
"Lender Presentation" means the Lender Presentation dated June 9,
2006 relating to the Parent, the Borrower and the Transactions.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Leverage Ratio" means, on any date, the ratio of (a) Total Net
Indebtedness as of such date to (b) Consolidated EBITDA of the Parent for the
period of four consecutive fiscal quarters of the Parent ended on such date (or,
if such date is not the last day of a fiscal quarter, ended on the last day of
the fiscal quarter of the Parent most recently ended prior to such date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" means this Agreement and the Guarantee Agreement.
15
"Loan Parties" means the Borrower and the Guarantors.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, or financial condition of the Parent and the
Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any
of its material obligations under the Loan Documents or (c) the validity and
enforceability of any Loan Document, or the rights and remedies of the Lenders
hereunder or under any other Loan Document, taken as a whole.
"Material Indebtedness" means Indebtedness (other than the Loans),
or obligations in respect of one or more Swap Agreements, of any one or more of
the Parent and its Subsidiaries in an aggregate principal amount exceeding
$35,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Parent or any Subsidiary in respect of any
Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Parent or such Subsidiary would be required
to pay if such Swap Agreement were terminated at such time.
"Material Subsidiary" means, as of any date, any Subsidiary (other
than the Borrower, a Foreign Subsidiary or a Receivables Subsidiary) that either
(a) accounts (together with its subsidiaries on a consolidated basis) for more
than 10% of Total Assets of the Parent or (b) accounts (together with its
subsidiaries on a consolidated basis) for more than 10% of the consolidated
revenues of the Parent and the Subsidiaries for the most recently ended period
of four consecutive fiscal quarters for which financial statements are
available, in each case, determined in accordance with GAAP.
"Maturity Date" means April 12, 2010.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Parent or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Net Cash Proceeds", with respect to any issuance or sale of Equity
Interests or Indebtedness or any Asset Disposition, means the cash proceeds of
such issuance or sale net of (a) attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and brokerage,
consultant and other fees and expenses actually incurred in connection with such
issuance or sale, (b) taxes paid or payable as a result thereof, (c) in the case
of any Asset Disposition, any reserve for any purchase price adjustment or any
indemnification payments (fixed and contingent) in connection with such Asset
Disposition; provided that if any such reserve is later released, such amount
shall be included in the calculation of Net Cash Proceeds, and (d) in the case
of any Asset Disposition, the principal amount of any Indebtedness (other than
16
Indebtedness under the Loan Documents) that is secured by the assets subject to
such Asset Disposition and any related premiums, fees, expenses and other
amounts due thereunder and that are required to be repaid in connection
therewith.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Parent" means American Axle & Manufacturing Holdings, Inc., a
Delaware corporation.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's construction, artisan's and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations that
are not overdue by more than 60 days or are being contested in compliance
with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements in
respect of such obligations;
(d) deposits to secure or in connection with the performance of
bids, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business, including those incurred to
secure health, safety and environmental obligations in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the Parent
or any Subsidiary;
17
(g) Liens arising by virtue of any statutory or common law provision
relating to banker's liens, rights of setoff or similar rights as to
deposit accounts or other funds maintained with creditor depository
institution; and
(h) landlord's Liens under leases of property to which the Parent or
a Subsidiary is a party;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investment" means an Investment by the Parent or any
Subsidiary in:
(a) the Borrower, a Subsidiary or a Person that will, upon the
making of such Investment, become a Subsidiary; provided that such
Person's primary business is a Related Business;
(b) another Person if, as a result of such Investment, such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Parent or a Subsidiary; provided
that such Person's primary business is a Related Business;
(c) cash and Cash Equivalents;
(d) receivables owing to the Parent or any Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms; provided that such trade terms
may include such concessionary trade terms as the Parent or any such
Subsidiary deems reasonable under the circumstances;
(e) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(f) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Parent or such Subsidiary;
(g) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Parent or any
Subsidiary or in satisfaction of judgments;
(h) any Person to the extent such Investment represents the non-cash
portion of the consideration received for (i) an Asset Disposition as
permitted pursuant to Section 6.07 or (ii) a disposition of assets not
constituting an Asset Disposition;
(i) any Person where such Investment was acquired by the Parent or
any Subsidiary (x) in exchange for any other Investment or accounts
receivable held
18
by the Parent or any such Subsidiary in connection with or as a result of
a bankruptcy, workout, reorganization or recapitalization of the issuer of
such other Investment or accounts receivable or (y) as a result of a
foreclosure by the Parent or any Subsidiary with respect to any secured
Investment or other transfer of title with respect to any secured
Investment in default;
(j) any Person to the extent such Investment consists of prepaid
expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits made in
the ordinary course of business by the Parent or any Subsidiary;
(k) any Person to the extent such Investment consists of a Swap
Agreement otherwise permitted by this Agreement;
(l) any Person to the extent such Investment exists on the Effective
Date, and any extension, modification or renewal of any such Investment
existing on the Effective Date, but only to the extent not involving
additional advances, contributions or other Investments of cash or other
assets or other increases thereof (other than as a result of the accrual
or accretion of interest or original issue discount or the issuance of
pay-in-kind securities, in each case, pursuant to the terms of such
Investment as in effect on the Effective Date);
(m) any Person to the extent the payment for such Investment
consists of Equity Interests of the Parent (excluding Disqualified Stock);
(n) Guarantees of Indebtedness permitted under Section 6.01;
(o) Investments of a Person existing at the time such Person becomes
a Subsidiary or at the time such Person merges or consolidates with the
Parent or any Subsidiary, in either case, in compliance with this
Agreement; provided that such Investments were not made by such Person in
connection with, or in contemplation of, such Person becoming a Subsidiary
or such merger or consolidation; and
(p) Persons to the extent such Investments, when taken together with
all other Investments made pursuant to this clause (p) and outstanding on
the date such Investment is made, do not exceed $100,000,000.
"Permitted Receivables Financing" means transactions pursuant to
which the Parent or one or more of the Subsidiaries (or a combination thereof)
realizes cash proceeds in respect of Receivables and Related Security by selling
or otherwise transferring such Receivables and Related Security (on a
non-recourse basis with respect to the Parent and the Subsidiaries, other than
Standard Securitization Undertakings) to one or more Receivables Subsidiaries,
and such Receivables Subsidiary or Receivables Subsidiaries realize cash
proceeds in respect of such Receivables and Related Security; provided that the
Parent or the Borrower shall deliver to the Administrative Agent copies of all
documentation entered into in connection with any such transaction.
19
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Parent or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Rata Share" means, with respect to any Lender's share of any
payment of principal in respect of the Loans, such Lender's share thereof
determined based upon the share that the aggregate principal amount of
outstanding Loans of such Lender represents of the aggregate principal amount of
all outstanding Loans.
"Receivable" means an Account owing to the Parent or any Subsidiary
(before its transfer to a Receivables Subsidiary), whether now existing or
hereafter arising, together with all cash collections and other cash proceeds in
respect of such Account, including all yield, finance charges or other related
amounts accruing in respect thereof and all cash proceeds of Related Security
with respect to such Receivable.
"Receivables Financing Debt" means, as of any date with respect to
any Receivables Subsidiary and any Permitted Receivables Financing, the amount
of the outstanding uncollected Receivables subject to such Permitted Receivables
Financing that would be required for such Receivables Subsidiary to discharge
all principal obligations to financing parties (and would not be returned,
directly or indirectly, to the Parent or the Borrower) if all such Receivables
were to be collected at such date and such Permitted Receivables Financing were
to be terminated at such date.
"Receivables Subsidiary" means a wholly owned Subsidiary that does
not engage in any activities other than participating in one or more Permitted
Receivables Financings and activities incidental thereto; provided that (a) such
Subsidiary does not have any Indebtedness other than Indebtedness incurred
pursuant to a Permitted Receivables Financing owed to financing parties
(including the Parent or the applicable seller of Receivables) supported by
Receivables and Related Security and (b) neither the Parent nor any Subsidiary
Guarantees any Indebtedness or other obligation of such Subsidiary, other than
Standard Securitization Undertakings.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to
issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
20
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Parent or any Subsidiary existing on the Effective Date or
incurred in compliance with this Agreement, including Indebtedness that
Refinances Refinancing Indebtedness; provided that:
(a) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(b) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced;
(c) such Refinancing Indebtedness has an aggregate principal amount
(or if incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
incurred with original issue discount, the aggregate accreted value) then
outstanding (plus accrued interest, fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced; and
(d) if the Indebtedness being Refinanced is subordinated in right of
payment to the Loans, such Refinancing Indebtedness is subordinated in
right of payment to the Loans at least to the same extent as the
Indebtedness being Refinanced;
provided further that Refinancing Indebtedness shall not include (i)
Indebtedness of a Subsidiary that is not a Loan Party that Refinances
Indebtedness of any Loan Party, or (ii) Indebtedness of a Loan Party that
Refinances Indebtedness of a Subsidiary that is not a Loan Party.
"Register" has the meaning set forth in Section 9.04.
"Related Business" means any business in which the Parent or any of
the Subsidiaries was engaged on the Effective Date and any business related,
ancillary or complimentary to such business.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Related Security" means, with respect to any Receivables subject to
a Permitted Receivables Financing, all assets that are customarily transferred
or in respect of which security interests are customarily granted in connection
with asset securitization transactions involving Receivables, including all
collateral securing such Receivables, all contracts and all Guarantee or other
obligations in respect of such Receivables, and all proceeds of such
Receivables.
"Required Lenders" means, at any time, Lenders having outstanding
Loans (or, prior to the borrowing hereunder on the Effective Date, Commitments)
21
representing more than 50% of the aggregate principal amount of the outstanding
Loans (or, prior to the borrowing hereunder on the Effective Date, the aggregate
Commitments) at such time.
"Restricted Payment" with respect to any Person means:
(a) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Equity Interests (including
any payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Equity
Interests (other than (i) dividends or distributions payable solely in its
Equity Interests (other than Disqualified Stock), (ii) dividends or
distributions payable solely to the Parent or a Subsidiary and (iii) pro
rata dividends or other distributions made by a Subsidiary that is not a
wholly owned Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity other
than a corporation));
(b) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Equity Interests of the Parent
held by any Person (other than by a Subsidiary) or of any Equity Interests
of a Subsidiary held by any Affiliate of the Parent (other than by a
Subsidiary), including in connection with any merger or consolidation and
including the exercise of any option to exchange any Equity Interests
(other than into Equity Interests of the Parent that is not Disqualified
Stock);
(c) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated
Obligations of the Borrower or any Guarantor (other than (i) from the
Parent or a Subsidiary or (ii) the purchase, repurchase, redemption,
defeasance or other acquisition or retirement of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of such purchase, repurchase, redemption, defeasance or other
acquisition or retirement); or
(d) the making of any Investment (other than a Permitted Investment)
in any Person.
"S&P" means Standard & Poor's.
"Sold Entity or Business" has the meaning assigned to such term in
the definition of "Consolidated EBITDA".
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities made by the Parent or any of the
Subsidiaries in connection with a Permitted Receivables Financing that are
customary for accounts receivables securitization financings; provided that
Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.
22
"Stated Maturity" means, with respect to any Indebtedness, the date
specified in such Indebtedness as the fixed date on which the final payment of
principal of such Indebtedness is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such Indebtedness at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Effective Date or
thereafter incurred) which is subordinate or junior in right of payment to the
Loans or a Guarantee of such Person, pursuant to a written agreement to that
effect.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent, including the
Borrower.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Parent or the Subsidiaries shall be a Swap Agreement.
23
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Assets" means, with respect to any Person as of any date, the
amount of total assets of such Person and its subsidiaries that would be
reflected on a balance sheet of such Person prepared as of such date on a
consolidated basis in accordance with GAAP.
"Total Indebtedness" means, as of any date, the sum (without
duplication) of (a) the aggregate principal amount of Indebtedness of the Parent
and the Subsidiaries outstanding as of such date that consists of Capital Lease
Obligations, obligations for borrowed money and obligations in respect of the
deferred purchase price of property or services, determined on a consolidated
basis, plus (b) the amount, if any, by which the aggregate amount of Receivables
Financing Debt of the Parent and the Subsidiaries outstanding as of such date
exceeds $150,000,000.
"Total Net Indebtedness" means, as of any date, Total Indebtedness
minus the aggregate amount of cash and cash equivalents that would be set forth
on a balance sheet of the Parent and the Subsidiaries as of such date prepared
on a consolidated basis in accordance with GAAP.
"Transactions" means the execution, delivery and performance by the
Loan Parties of the Loan Documents, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to (a) the Adjusted LIBO Rate or (b) the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Types of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a "Eurodollar
Loan"). Borrowings also may be classified and referred to by Type (e.g., a
"Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein),
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(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Loans
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make a Loan to the Borrower on the
Effective Date in Dollars in a principal amount equal to its Commitment. Amounts
repaid in respect of Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as
part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required hereunder.
(b) Subject to Section 2.10, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement and such Lender shall not be entitled to any amounts payable under
Section 2.11 or 2.13 to the extent such amounts would not have been payable had
such Lender not exercised such option.
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(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. Borrowings of more than one
Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of 10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Funding of Borrowings. (a) Each Lender shall make
the Loan to be made by it hereunder on the Effective Date by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower designated by it by notice to the Administrative
Agent.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the Effective Date that such Lender will not make available to
the Administrative Agent such Lender's share of the Borrowing to be made on the
Effective Date, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to the Loans included in the applicable
Borrowing. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.04. Interest Elections. (a) Each Borrowing initially shall
be of the Type specified in the Borrower's notice of borrowing delivered
pursuant to Article IV and shall have an initial Interest Period as specified in
such notice. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
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(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone (a) in the case of
an election that will result in a Eurodollar Borrowing, not later than 12:00
noon, New York City time, three Business Days before the effective date of such
election, and (b) in the case of an election that will result in an ABR
Borrowing, not later than 12:00 noon, New York City time, on the effective date
of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) the Type of the resulting Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing, unless repaid, each Eurodollar Borrowing shall
be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.05. Termination of Commitments. The Commitments shall
terminate upon the borrowing of the Loans on the Effective Date.
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SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.07. Prepayment of Loans.
(a) Voluntary Prepayments of Loans. (i) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with subparagraph (a)(ii) of this
Section. Any such prepayment shall be subject to Section 2.12 hereof and, in the
case of any such prepayment made prior to the second anniversary of the
Effective Date, shall be accompanied by a prepayment fee equal to (A) in the
event of a voluntary prepayment made prior to the first anniversary of the
Effective Date, 2.00% of the aggregate principal amount of such prepayment, and
(B) in the event of a voluntary prepayment made on or after the first
anniversary of the Effective Date, but prior to the second anniversary of the
Effective Date, 1.00% of the aggregate principal amount of the such prepayment.
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(ii) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (A) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York
City time, three Business Days before the date of prepayment, or (B) in
the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New
York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid. Promptly following
receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Eurodollar
Borrowing shall be in an amount that would be permitted in the case of a
Eurodollar Borrowing as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.09.
(b) Mandatory Offer to Prepay Loans Upon Asset Disposition. (i) In
the event and on the occasion that any Net Cash Proceeds are received by or on
behalf of the Borrower or any Subsidiary in respect of an Asset Disposition, the
Borrower shall, in accordance with subparagraph (b)(ii) hereof, offer to prepay
Loans in an aggregate amount equal to 100% of such Net Cash Proceeds.
(ii) Subject to subparagraph (b)(iii) hereof, within three Business
Days following the date of receipt of any Net Cash Proceeds from any Asset
Disposition, the Borrower shall provide a notice to the Administrative
Agent (the "Asset Disposition Offer"), stating:
(A) that an Asset Disposition has occurred and that each Lender
has the right to require the Borrower to prepay such Lender's
Pro Rata Share of Loans with the Net Cash Proceeds from such
Asset Disposition, plus accrued and unpaid interest to the
date of prepayment;
(B) the circumstances and relevant facts and financial information
regarding such Asset Disposition; and
(C) the prepayment date (which shall be no earlier than 7 days nor
later than 14 days from the date of such notice).
The Administrative Agent shall notify the Lenders of any Asset Disposition
Offer, together with the instructions determined by the Administrative
Agent, consistent with this Section 2.07(b), that a Lender must follow in
order to receive its Pro Rata Share of the Net Cash Proceeds from the
Asset Disposition or to decline application of such prepayment to any of
such Lender's Loans.
(iii) The Borrower shall not be required to make an Asset
Disposition Offer upon an Asset Disposition if the Borrower or such
Subsidiary applies the Net Cash Proceeds from such Asset Disposition
within one year after receipt of such
29
Net Cash Proceeds to acquire real property, equipment or other tangible
assets to be used in, or to otherwise make an Investment in, the
Borrower's business or a Related Business; provided that, to the extent
any such Net Cash Proceeds have not been so applied by the end of such
one-year period, then the Borrower shall be required to make an Asset
Disposition Offer in an amount equal to such Net Cash Proceeds that have
not been so applied.
(iv) On the prepayment date in respect of any Asset Disposition
Offer, the Borrower shall prepay the Loans of each Lender that has elected
to receive such prepayment in an aggregate principal amount equal to such
Lender's Pro Rata Share of such Net Cash Proceeds. Each such prepayment of
any Lender's Loans shall be applied ratably to the Loans of such Lender
included in each Borrowing. Such prepayments shall be accompanied by
accrued interest to the extent required by Section 2.09.
(v) Any Lender may elect not to have a prepayment resulting from an
Asset Disposition Offer applied to such Lender's Loans. Any such
declination shall not constitute a declination of any other Asset
Disposition Offer.
(c) Mandatory Offer to Prepay Loans Upon Change in Control. (i) Upon
the occurrence of a Change in Control, the Borrower shall, in accordance with
subparagraph (c)(ii) hereof, offer to prepay all of the unpaid principal amount
of the Loans, plus accrued and unpaid interest to the date of prepayment.
(ii) Any such prepayment shall be subject to Section 2.12 hereof and
shall be accompanied by a prepayment fee equal to 1.00% of the aggregate
principal amount of such prepayment.
(iii) Within three Business Days following any Change in Control,
the Borrower shall provide a notice to the Administrative Agent (the
"Change in Control Offer"), stating:
(A) that a Change in Control has occurred and that each Lender has
the right to require the Borrower to prepay all of the unpaid
principal amount of such Lender's Loans, plus accrued and
unpaid interest to the date of prepayment;
(B) the circumstances and relevant facts and financial information
regarding such Change in Control; and
(C) the prepayment date (which shall be no earlier than 7 days nor
later than 14 days from the date of such notice).
The Administrative Agent shall notify the Lenders of any Change in Control
Offer, together with the instructions determined by the Administrative
Agent, consistent with this Section 2.07(c), that a Lender must follow in
order to have its Loans repaid or to decline application of such
prepayment to any of such Lender's Loans.
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(iv) The Borrower shall not be required to make a Change in Control
Offer upon a Change in Control if a third party makes the Change in
Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 2.07(c) applicable to a Change
in Control Offer made by the Borrower and has repaid all Lenders that
validly accepted such Change in Control Offer.
(v) On the prepayment date in respect of any Change in Control
Offer, the Borrower shall prepay all of the unpaid principal amount of the
Loans of each Lender that has elected to receive such prepayment, plus
accrued and unpaid interest to the date of prepayment and the prepayment
fee specified above.
(vi) Any Lender may elect not to have a prepayment resulting from a
Change in Control Offer applied to such Lender's Loans. Any such
declination shall not constitute a declination of any other Change in
Control Offer.
SECTION 2.08. Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account and in immediately available funds,
fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent. Fees paid shall not be refundable under
any circumstances.
SECTION 2.09. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
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(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.10. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which reasonable
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate for
such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any Interest Election
Request that requests the conversion of any Borrowing to, or continuation of any
Borrowing as, a Eurodollar Borrowing shall be ineffective and such Eurodollar
Borrowing shall be converted to or continued on the last day of the Interest
Period applicable thereto as an ABR Borrowing.
SECTION 2.11. Increased Costs. (a) If any Change in Law (other than
with respect to Taxes, which shall be governed exclusively by Section 2.13)
shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material (excluding for
purposes of this Section 2.11 any such increased costs resulting from Taxes or
Other Taxes, as to which Section 2.13 shall govern), then the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
32
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section, together with a reasonably
detailed description of the basis therefor, and including a certification by
such Lender that its claim for such compensation has been calculated and made in
the same manner as under other credit agreements with other borrowers that are
similarly situated and with respect to which the event entitling such Lender to
compensation hereunder also entitled such Lender to compensation thereunder,
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.12. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.15, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount reasonably determined
by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or
33
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest (as reasonably determined by such
Lender) which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for deposits in the applicable currency and of a comparable amount
and period from other banks in the eurocurrency market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section, together with a reasonably detailed
calculation of such amount, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 30 days after receipt thereof.
SECTION 2.13. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions for Indemnified Taxes and Other Taxes
(including any such deductions applicable to additional sums payable under this
Section 2.13(a)) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, and without duplication of paragraph (a) hereof,
the Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 30 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.13) and any penalties, interest and reasonable expenses (other than
Excluded Taxes) arising therefrom or with respect thereto; provided, that the
Administrative Agent or such Lender, as the case may be, provides the Borrower
with a written record therefor setting forth in reasonable detail the basis and
calculation of such amounts.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, to the
extent such a receipt is issued therefor, or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of any Tax under the law of the jurisdiction in which the Borrower is
located, or any
34
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter as required upon the
expiration, obsolescence or invalidity upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:
(i) duly completed copies of the Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to which
the United States of America is a party;
(ii) duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the code, (B) a "10 percent
shareholder" of the Parent within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
8981(c)(3)(C) of the Code, and (y) duly completed copies of Internal
Revenue Service Form W-8BEN;
(iv) any Lender that is not a Foreign Lender shall deliver to the
Borrower Internal Revenue Service Form W-9 or any subsequent versions
thereof or successors thereto, properly completed and duly executed. If
any Lender fails to deliver Form W-9 or any subsequent versions thereof or
successors thereto as required herein, then the Borrower may withhold from
any payment to such party an amount equivalent to the applicable backup
withholding Tax imposed by the Code, without reduction, or
(v) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.13, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.13 with
respect to the Taxes or Other Taxes
35
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other reasonable charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
(g) Any Lender claiming any indemnity payment or additional amounts
payable pursuant to this Section 2.13 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested by the Borrower following the reasonable written request by
the Borrower if the making of such a filing would avoid the need for or reduce
the amount of any such indemnity payment or additional amounts that may
thereafter accrue and would not, in the sole determination of such Lender,
require the disclosure of information that the Lender reasonably considers
confidential or be otherwise disadvantageous to such Lender.
SECTION 2.14. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.11, 2.12 or 2.13, or otherwise) prior to 2:00 p.m., New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments pursuant to Sections 2.11,
2.12, 2.13 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
36
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of any of the Lenders hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to such Lenders the amount due. In such event, if
the Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.03(b) or 2.14(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.15. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.11, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.13, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to
37
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.11 or 2.13, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not, in the reasonable
judgment of such Lender, otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.11, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.13,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest) or the Borrower (in the case of all other amounts) and (ii) in
the case of any such assignment resulting from a claim for compensation under
Section 2.11 or payments required to be made pursuant to Section 2.13, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.16. Incremental Term Loans. (a) At any time and from time
to time prior to the Maturity Date, subject to the terms and conditions set
forth herein, the Borrower may, by notice to the Administrative Agent (whereupon
the Administrative Agent shall promptly deliver a copy to each of the Lenders),
request to add one or more additional tranches of term loans (the "Incremental
Term Loans"), provided that at the time of each such request and upon the
effectiveness of each Incremental Facility Amendment, (A) no Default has
occurred and is continuing or shall result therefrom and (B) the Borrower shall
have delivered a certificate of a Financial Officer to the effect set forth in
clause (A). Notwithstanding anything to the contrary herein, the aggregate
principal amount of the Incremental Term Loans shall not exceed $50,000,000.
Each tranche of Incremental Term Loans shall be in an aggregate principal amount
that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section shall set
forth the requested amount and proposed terms of the relevant Incremental Term
Loan. Any additional bank, financial institution, existing Lender or other
Person that elects to make an Incremental Term Loan shall be reasonably
satisfactory to the Borrower and the Administrative Agent (any such bank,
financial institution, existing Lender or other Person being called an
"Additional Lender") and, if not already a Lender, shall become a Lender under
this Agreement pursuant to an amendment (an "Incremental Facility
38
Amendment") to this Agreement and, as appropriate, the other Loan Documents,
executed by Holdings, the Borrower, such Additional Lender and the
Administrative Agent. No Lender shall be obligated to provide any Incremental
Term Loans, unless it so agrees. Commitments in respect of any Incremental Term
Loans shall become Commitments under this Agreement. An Incremental Facility
Amendment may, without the consent of any other Lenders, effect such amendments
to any Loan Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent, to effect the provisions of this Section.
ARTICLE III
Representations and Warranties
Each of the Parent and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. Each of the Parent and the
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Parent and the Borrower and constitutes, and each other Loan Document to which
any Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of the Parent, the
Borrower and such other Loan Party (as the case may be), enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any Loan Party or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or other
instrument binding upon the Parent or any Subsidiary or its assets the violation
or breach of which would result in or would reasonably be expected to result in
a Material Adverse Effect, or give rise to a right thereunder to require any
payment to be made by the Parent or any Subsidiary, and (d) will not result in
the creation or imposition of any Lien on any asset of the Parent or any
Subsidiary.
39
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Parent has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 2005, reported on by Deloitte & Touche
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended March 31, 2006, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Parent and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 2005, there has been no material adverse
change in the business, assets, operations or financial condition of the Parent
and the Subsidiaries, taken as a whole.
SECTION 3.05. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Parent or the Borrower,
threatened against or affecting the Parent or any Subsidiary (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, neither the Parent nor any
Subsidiary (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
SECTION 3.06. Compliance with Laws and Agreements. Each of the
Parent and the Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.07. Investment Company Status. Neither the Parent nor any
of the Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940.
SECTION 3.08. Taxes. Each of the Parent and the Subsidiaries has
timely filed or caused to be filed all Federal and other material Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate
40
proceedings and for which the Parent or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.09. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. Disclosure. Neither the Lender Presentation nor any of
the other reports, financial statements or other information furnished by or on
behalf of the Parent or the Borrower to the Administrative Agent or any Lender
in connection with the negotiation of the Loan Documents or delivered
thereunder, taken as a whole, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information or any
information concerning future proposed and intended activities of the Parent and
the Subsidiaries, the Parent and the Borrower represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time (it being understood that such projections and
information are forward looking statements which by their nature are subject to
significant uncertainties and contingencies, many of which are beyond the
Parent's and the Borrower's control, and that actual results may differ, perhaps
materially, from those expressed or implied in such forward looking statements,
and no assurance can be given that the projections will be realized).
SECTION 3.11. Subsidiaries. Schedule 3.11 sets forth the name and
jurisdiction of organization of, and the direct or indirect ownership interest
of the Parent in, each Subsidiary, and identifies each Subsidiary that is a
Material Subsidiary or is otherwise required to become a Guarantor, in each
case, as of the Effective Date.
ARTICLE IV
Conditions
The obligations of the Lenders to make Loans hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
(i) from each party hereto either a counterpart of this Agreement signed
on behalf of such party or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement and (ii) from each of the Borrower and each Guarantor a
counterpart of the Guarantee Agreement signed on behalf of such party or
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of the
41
Guarantee Agreement) that such party has signed a counterpart of the
Guarantee Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the
Borrower, and Shearman & Sterling LLP, counsel to the Loan Parties,
substantially in the form of Exhibits C-1 and C-2, respectively, and
covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably
request. The Parent and the Borrower hereby request such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Loan Parties and the authorization of the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, the Chief Executive
Officer, a Vice President or a Financial Officer of each of the Parent and
the Borrower, confirming compliance with the conditions set forth in
paragraphs (f) and (g) of this Article.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
(f) At the time of and immediately after giving effect to the making
of the Loans hereunder, the representations and warranties of the Loan
Parties set forth in the Loan Documents shall be true and correct in all
material respects.
(g) At the time of and immediately after giving effect to the making
of the Loans hereunder, no Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received a notice of
borrowing from the Borrower with respect to the borrowing of Loans
hereunder on the Effective Date, which notice (i) shall be delivered not
later than 12:00 noon, New York City time, three Business Days before the
Effective Date, if any Eurodollar Borrowing is to be made on the Effective
Date, or, otherwise, not later than 5:00 p.m., New York City time, one
Business Day before the Effective Date, (ii) shall specify the aggregate
amount of such requested Borrowing, the Type of such Borrowing and, in the
case of any Eurodollar Borrowing, the initial Interest Period to be
applicable thereto and (iii) the location and number of the Borrower's
account to which funds are to be disbursed.
42
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 pm, New York City time, on July
15, 2006 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, the Parent and the Borrower covenant and agree with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Parent
or the Borrower will furnish to the Administrative Agent (and, when furnished,
the Administrative Agent will promptly furnish to the Lenders):
(a) within 90 days after the end of each fiscal year of the Parent,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Parent and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied; provided that it is understood and agreed that the delivery of
the Parent's Form 10-K and annual report for the applicable fiscal year
shall satisfy the requirements of this clause (a) if such materials
contain the information required by this clause (a);
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent, its condensed consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of
operations of the Parent and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes;
provided that it is understood and agreed that the delivery of the
Parent's Form 10-Q for the applicable fiscal quarter shall satisfy the
requirements of this clause (b) if such materials contain the information
required by this clause (b);
43
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Parent (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, and (ii) stating whether any
change in GAAP or in the application thereof affecting the financial
statements accompanying such certificate in any material respect has
occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect
of such change on such financial statements;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Parent or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Parent to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Parent or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
Any financial statement, report, proxy statement or other material required to
be delivered pursuant to clause (a), (b) or (d) of this Section shall be deemed
to have been furnished to the Administrative Agent and each Lender on the date
that the Parent notifies the Administrative Agent that such financial statement,
report, proxy statement or other material is posted on the Securities and
Exchange Commission's website at ▇▇▇.▇▇▇.▇▇▇ or on the Parent's website at
▇▇▇.▇▇▇.▇▇▇; provided, that the Administrative Agent will promptly inform the
Lenders of any such notification by the Parent; provided, further, that the
Parent will furnish paper copies of such financial statement, report, proxy
statement or material to the Administrative Agent or any Lender that requests,
by notice to the Parent, that the Parent do so, until the Parent receives notice
from the Administrative Agent or such Lender, as applicable, to cease delivering
such paper copies.
SECTION 5.02. Notices of Material Events. The Parent or the Borrower
will furnish to the Administrative Agent (and when furnished, the Administrative
Agent will promptly furnish to the Lenders) written notice of the following,
promptly after any executive officer or Financial Officer of the Parent or the
Borrower obtains actual knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Parent or any Subsidiary that involves a reasonable possibility of an
adverse determination
44
and that, if adversely determined, would reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, would result in or would
reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that would result in or would reasonably
be expected to result in a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Parent or the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Parent and the
Borrower will, and will cause each of the other Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that (i) the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 and (ii) neither the Parent nor any of
its Subsidiaries shall be required to preserve any rights, licenses, permits or
franchises, if the Parent or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
if the loss thereof would not have and would not reasonably be expected to have
a Material Adverse Affect.
SECTION 5.04. Payment of Obligations. The Parent and the Borrower
will, and will cause each of the other Subsidiaries to, pay its obligations,
including Tax liabilities (but excluding Indebtedness), that, if not paid, would
reasonably be expected to result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings and (b) the
Parent, the Borrower or such other Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP.
SECTION 5.05. Maintenance of Properties; Insurance. The Parent and
the Borrower will, and will cause each of the other Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are reasonable and prudent.
SECTION 5.06. Books and Records; Inspection Rights. The Parent and
the Borrower will, and will cause each of the other Subsidiaries to, keep proper
financial books of record and account in which full, true and correct entries
are made of all financial dealings and transactions in relation to its business
and activities in order to produce its financial statements in accordance with
GAAP. The Parent and the Borrower will, and will cause each of the other
Subsidiaries to, permit any representatives
45
designated by the Administrative Agent or any Lender, upon reasonable prior
notice and at the applicable Lender's expense, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times during normal business hours and as
often as reasonably requested (subject to reasonable requirements of
confidentiality, including requirements imposed by law or contract).
SECTION 5.07. Compliance with Laws. The Parent and the Borrower
will, and will cause each of the other Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be
used for general corporate purposes, including to refinance amounts payable by
the Parent upon exercise of any put or conversion rights in respect of the
Convertible Notes. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X.
SECTION 5.09. Additional Guarantors. If any Material Subsidiary is
formed or otherwise acquired after the date hereof or any Subsidiary that is not
a Material Subsidiary subsequently becomes a Material Subsidiary or Guarantees
the obligations under the Existing Credit Agreement or any refinancing or
replacement thereof, then, in each case, within 10 Business Days thereafter the
Parent or the Borrower shall notify the Administrative Agent thereof and cause
such Subsidiary to execute a supplement to the Guarantee Agreement (in the form
provided as an annex thereto or otherwise in form and substance reasonably
satisfactory to the Administrative Agent) in order to become a Guarantor.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Parent and the Borrower covenant and agree with the Lenders that:
SECTION 6.01. Indebtedness. (a) The Parent and Borrower will not,
and will not permit any Subsidiary to, Incur, directly or indirectly, any
Indebtedness; provided, that the Parent, the Borrower or any such Subsidiary
will be entitled to Incur Indebtedness if, on the date of such Incurrence and
after giving effect thereto, the Leverage Ratio does not exceed 3.50 to 1.00.
(b) Notwithstanding the foregoing paragraph (a), the Parent and the
Subsidiaries will be entitled to Incur any or all of the following Indebtedness:
(i) Indebtedness incurred by the Borrower pursuant to this
Agreement;
46
(ii) Indebtedness incurred by the Borrower pursuant to the Existing
Credit Agreement or any refinancing or replacement thereof; provided that,
the aggregate principal amount of all Indebtedness incurred under this
clause (ii) and then outstanding does not exceed $600,000,000;
(iii) Indebtedness owed to and held by the Parent or a Subsidiary;
provided that, (A) any subsequent issuance or transfer of Equity Interests
that results in any such Subsidiary ceasing to be a Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Parent, the
Borrower or a Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the
Borrower or a Guarantor is the obligor on any such Indebtedness owed to a
Subsidiary that is not a Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Loans;
(iv) the Existing Senior Debt;
(v) Indebtedness outstanding on the Effective Date (other than
Indebtedness described in clause (i), (ii), (iii) or (iv) of this
covenant) and set forth on Schedule 6.01;
(vi) Refinancing Indebtedness in respect of Indebtedness incurred
pursuant to paragraph (a) or pursuant to clause (iv) or (v) or this clause
(vi);
(vii) Indebtedness of any Receivables Subsidiary incurred pursuant
to any Permitted Receivables Financing; provided that the aggregate amount
of Receivables Financing Debt shall not exceed $200,000,000 at any time
outstanding;
(viii) Designated Secured Indebtedness; provided that the aggregate
principal amount of Designated Secured Indebtedness shall not exceed
$200,000,000 at any time outstanding;
(ix) Indebtedness secured by a Lien permitted by clause (g) of
Section 6.02, subject to the limitations set forth therein;
(x) Indebtedness arising from agreements of the Parent or a
Subsidiary providing for indemnification, adjustment of purchase price,
earn outs, or similar obligations, in each case, incurred or assumed in
connection with the disposition or acquisition of any business, assets or
a Subsidiary in accordance with the terms of this Agreement, other than
Guarantees of Indebtedness incurred or assumed by any Person acquiring all
or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition;
(xi) Guarantees by the Parent of Indebtedness of any Subsidiary or
by any Subsidiary of Indebtedness of the Parent or any other Subsidiary;
and
47
(xii) Indebtedness of any Person that becomes a Subsidiary (whether
through an acquisition or otherwise) after the date hereof; provided that
such Indebtedness exists at the time that such Person becomes a Subsidiary
and is not created in contemplation of or in connection with such Person
becoming a Subsidiary.
(c) Notwithstanding the foregoing paragraphs (a) and (b), the Parent
and the Borrower will not permit any Subsidiary (other than the Borrower or a
Guarantor) to create, incur, assume or permit to exist any Indebtedness,
including pursuant to any Guarantee of Indebtedness of the Parent or another
Subsidiary, except:
(i) Indebtedness owing to the Parent or another Subsidiary;
(ii) Indebtedness of any Receivables Subsidiary incurred pursuant to
any Permitted Receivables Financing; provided, that the aggregate amount
of Receivables Financing Debt shall not exceed $200,000,000 at any time
outstanding;
(iii) Designated Secured Indebtedness incurred by any such
Subsidiary; provided, that the aggregate principal amount of Designated
Secured Indebtedness shall not exceed $200,000,000 at any time
outstanding;
(iv) Indebtedness of any such Subsidiary secured by a Lien permitted
by clause (g) of Section 6.02, subject to the limitations set forth
therein;
(v) Guarantees by any such Subsidiary of Indebtedness of another
Subsidiary (other than the Borrower or a Guarantor);
(vi) Indebtedness of any Person that becomes a Subsidiary (whether
through an acquisition or otherwise) after the date hereof; provided, that
such Indebtedness exists at the time such Person becomes a Subsidiary and
is not created in contemplation of or in connection with such Person
becoming a Subsidiary;
(vii) Indebtedness of any such Subsidiary existing on the Effective
Date and set forth on Schedule 6.01;
(viii) Obligations of any such Subsidiary with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of
such Person; and
(ix) other unsecured Indebtedness of any such Subsidiary; provided
that, at the time that any such Indebtedness is incurred, after giving
effect to such incurrence and any related transactions then being
consummated, the aggregate principal amount of all such Indebtedness of
all such Subsidiaries then outstanding shall not exceed 15% of Total
Assets of the Parent.
48
(d) For purposes of determining compliance with this covenant:
(i) in the event that an item of Indebtedness (or any portion
thereof) meets the criteria of more than one of the types of Indebtedness
permitted above, the Borrower, in its sole discretion, will classify such
item of Indebtedness (or any portion thereof) at the time of incurrence
and will only be required to include the amount and type of such
Indebtedness in one of the above clauses; and
(ii) the Borrower will be entitled to divide and classify an item of
Indebtedness in more than one of the types of Indebtedness described
above.
(e) The accrual of interest or dividends, the accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, the
reclassification of preferred equity as Indebtedness due to a change in
accounting principles, and the payment of dividends on Disqualified Stock or in
the form of additional shares of the same class of Disqualified Stock will not
be deemed to be an incurrence of Indebtedness or an issuance of Disqualified
Stock for purposes of this Section 6.01. Notwithstanding any other provision of
this Section 6.01, the maximum amount of Indebtedness that the Borrower or any
Subsidiary may incur pursuant to this Section 6.01 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency
values.
SECTION 6.02. Liens. The Parent and the Borrower will not, and will
not permit any other Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Parent or any
Subsidiary existing on the date hereof (other than Liens of the type
permitted under clause (d) or (f) of this Section) and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any other
property or asset of the Parent or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Parent or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals
49
and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Parent or any Subsidiary; provided that (i) such Liens
secure Indebtedness incurred to finance the acquisition, construction or
improvement of such fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof, (ii) such Liens and the Indebtedness secured
thereby are incurred prior to or within 360 days after such acquisition or
the completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets, (iv) such Liens shall not apply to
any other property or assets of the Parent or any Subsidiary (other than
to accessions to such fixed or capital assets and provided that individual
financings of equipment provided by a single lender may be
cross-collateralized to other financings of equipment provided solely by
such lender) and (v) the aggregate principal amount of Designated Secured
Indebtedness shall not exceed $200,000,000 at any time outstanding;
(e) any other Lien on any property or asset of any Subsidiary that
is not a Loan Party; provided, that (i) such Lien secures Indebtedness of
such Subsidiary that is not Guaranteed by any Loan Party and (ii) the
aggregate principal amount of Designated Secured Indebtedness shall not
exceed $200,000,000 at any time outstanding;
(f) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing and Liens arising pursuant
to a Permitted Receivables Financing on Receivables and Related Security
sold or financed in connection with such Permitted Receivables Financing;
provided, that the aggregate amount of Receivables Financing Debt shall
not exceed $200,000,000 at any time outstanding;
(g) any other Lien securing Indebtedness of the Parent or any
Subsidiary; provided, that the aggregate principal amount of all
Indebtedness secured by such Liens shall not exceed $50,000,000 at any
time outstanding; and
(h) any Liens securing obligations under the Existing Credit
Agreement or any refinancing or replacement thereof; provided that such
Liens shall equally and ratably secure the obligations in respect of the
Loans.
SECTION 6.03. Fundamental Changes. The Parent and the Borrower will
not, and will not permit any other Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of the assets of the Parent and
the Subsidiaries, taken as a whole, or
50
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (a) any
Person (other than the Borrower) may merge into the Parent in a transaction in
which the Parent is the surviving corporation, (b) any Person may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and,
if a Loan Party is a party to such merger, then the surviving entity is a Loan
Party, (c) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to another Subsidiary and (d) any Subsidiary (other than the Borrower or
a Guarantor) may liquidate or dissolve if the Parent determines in good faith
that such liquidation or dissolution is in the best interests of the Parent and
is not materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04.
SECTION 6.04. Restricted Payments. (a) The Parent and Borrower will
not, and will not permit any of the other Subsidiaries (other than a Receivables
Subsidiary), directly or indirectly, to make a Restricted Payment if at the time
the Parent or such Subsidiary makes such Restricted Payment:
(i) a Default shall have occurred and be continuing (or would result
therefrom);
(ii) the Borrower is not entitled to incur an additional $1.00 of
Indebtedness pursuant to Section 6.01(a);
(iii) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Effective Date would exceed the sum of
(without duplication):
(A) $25,000,000 plus 50% of the Consolidated Net Income (adjusted
for any non-cash special charges or any special charges, which
may include, without limitation, cash charges related to labor
agreements, and any non-recurring gains or losses) accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter during which the Effective
Date occurs to the end of the most recent fiscal quarter for
which financial statements are available (or, in case such
Consolidated Net Income (adjusted for any non-cash special
charges or any special charges, which may include, without
limitation, cash charges related to labor agreements, and any
non-recurring gains or losses) shall be a deficit, minus 100%
of such deficit); provided that the amount of Restricted
Payments permitted under this clause (iii) shall not, in any
event, be less than $25,000,000; plus
(B) 100% of the aggregate Net Cash Proceeds and marketable
securities received by the Parent from the issuance or sale of
its Equity Interests (other than Disqualified Stock)
subsequent to the Effective Date (other than an issuance or
sale to a Subsidiary and
51
other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Parent or any of its
Subsidiaries for the benefit of their employees) and 100% of
any cash capital contribution received by the Parent from its
shareholders subsequent to the Effective Date; plus
(C) to the extent not already included in Consolidated Net Income,
100% of the aggregate amount in cash and marketable securities
received after the Effective Date by means of the sale or
other disposition (other than to the Parent or a Subsidiary)
of Investments (other than Permitted Investments) made by the
Parent or any of its Subsidiaries and repurchases or
redemptions of such Investments (other than Permitted
Investments) from the Parent or any of its Subsidiaries and
repayments of loans or advances which constitute Investments
(other than Permitted Investments) of the Parent or any of its
Subsidiaries; plus
(D) the amount by which Indebtedness of the Parent is reduced on
the Parent's balance sheet upon the conversion or exchange
subsequent to the Effective Date of any Indebtedness of the
Parent convertible or exchangeable for Equity Interests (other
than Disqualified Stock) of the Parent (less the amount of any
cash, or the fair value of any other property, distributed by
the Parent upon such conversion or exchange); provided that
the foregoing amount shall not exceed the Net Cash Proceeds
received by the Parent or any Subsidiary from the sale of such
Indebtedness (excluding Net Cash Proceeds from sales to a
Subsidiary or to an employee stock ownership plan or a trust
established by the Parent or any of its Subsidiaries for the
benefit of their employees).
(b) The preceding provisions will not prohibit:
(i) the declaration and payment of dividends on the Parent's Equity
Interests; provided that the aggregate amount of such Restricted Payments
shall not exceed in any fiscal year $35,000,000;
(ii) Permitted Investments, including Investments that were
Permitted Investments when made;
(iii) any Restricted Payment made out of the Net Cash Proceeds of
the substantially concurrent sale of, or made by exchange for, Equity
Interests of the Parent (other than Disqualified Stock and other than
Equity Interests issued or sold to a Subsidiary or an employee stock
ownership plan or to a trust established by the Parent or any of its
Subsidiaries for the benefit of their employees) or a substantially
concurrent cash capital contribution received by the Parent from its
shareholders; provided that (A) such Restricted Payment shall be excluded
in the calculation of the amount of Restricted Payments and (B) the Net
Cash Proceeds
52
from such sale or such cash capital contribution (to the extent so used
for such Restricted Payment) shall be excluded from the calculation of
amounts under clause (iii)(B) of paragraph (a) above;
(iv) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Borrower or a Guarantor made by exchange for, or out of the proceeds of
the substantially concurrent incurrence of, Indebtedness of such Person
which is permitted to be Incurred pursuant to Section 6.01; provided,
however, that such purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value shall be excluded in the calculation
of the amount of Restricted Payments;
(v) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided that at the time of payment of such dividend,
no other Default shall have occurred and be continuing (or result
therefrom); provided further, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(vi) so long as no Default has occurred and is continuing, the
purchase, redemption or other acquisition of shares of Equity Interests of
the Parent from employees, former employees, directors or former directors
of the Parent or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant to
the terms of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the board of directors under which such
individuals purchase or sell or are granted the option to purchase or
sell, shares of such Equity Interests; provided that the aggregate amount
of such Restricted Payments (excluding amounts representing cancelation of
Indebtedness) shall not exceed $10,000,000 in any calendar year (with
unused amounts carried over to the next two immediately succeeding
calendar years, but not to exceed, in any calendar year, a total of
$20,000,000); provided further that such Restricted Payments shall be
excluded in the calculation of the amount of Restricted Payments;
(vii) the declaration and payments of dividends on Disqualified
Stock issued pursuant to Section 6.01; provided that, at the time of
payment of such dividend, no Default shall have occurred and be continuing
(or result therefrom); provided further, however, that such dividends
shall be excluded in the calculation of the amount of Restricted Payments;
(viii) repurchases of Equity Interests deemed to occur upon exercise
of stock options if such Equity Interest represents a portion of the
exercise price of such options, or repurchases of Equity Interests deemed
to occur upon a withholding of Equity Interests for taxes due in
connection with the exercise, vesting or settlement of an option or other
Equity Interest-based award; provided that such Restricted Payments shall
be excluded in the calculation of the amount of Restricted Payments;
53
(ix) cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Equity Interests of the Parent;
provided that any such cash payment shall not be for the purpose of
evading the limitation of the covenant described under this subheading (as
determined in good faith by the board of directors); provided further that
such payments shall be excluded in the calculation of the amount of
Restricted Payments;
(x) in the event of a Change in Control, and if no Default shall
have occurred and be continuing, the payment, purchase, redemption,
defeasance or other acquisition or retirement of Subordinated Obligations
of the Borrower or any Guarantor, in each case, at a purchase price not
greater than 101% of the principal amount of such Subordinated
Obligations, plus any accrued and unpaid interest thereon; provided that
prior to such payment, purchase, redemption, defeasance or other
acquisition or retirement, the Borrower (or a third party to the extent
permitted) has made an appropriate Change in Control Offer with respect to
the Loans as a result of such Change in Control and has repaid all Lenders
that validly accepted such Change in Control Offer; provided further that
such payments, purchases, redemptions, defeasances or other acquisitions
or retirements shall be included in the calculation of the amount of
Restricted Payments; or
(xi) payments of intercompany subordinated Indebtedness owed to the
Parent or a Subsidiary, the incurrence of which was permitted under this
Agreement; provided that no Event of Default has occurred and is
continuing or would otherwise result therefrom; provided further that such
payments shall be excluded in the calculation of the amount of Restricted
Payment.
SECTION 6.05. Transactions with Affiliates. The Parent and the
Borrower will not, and will not permit any of the other Subsidiaries to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) at prices and on terms and
conditions not less favorable to the Parent, the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Parent and its Subsidiaries not involving
any other Affiliate, (c) advances to employees permitted by Section 6.04, (d)
any Restricted Payment permitted by Section 6.04, (e) fees, compensation and
other benefits paid to, and customary indemnity and reimbursement provided on
behalf of, officers, directors and employees of any Loan Party in the ordinary
course of business, (f) any employment agreement entered into by the Parent or
any of the Subsidiaries in the ordinary course of business, (g) any Permitted
Receivables Financing and (h) transactions and agreements in existence on the
Effective Date and listed on Schedule 6.05 and, in each case, any amendment
thereto that is not disadvantageous to the Lenders in any material respect.
SECTION 6.06. Restrictive Agreements. The Parent will not permit any
Subsidiary (other than a Receivables Subsidiary) that is not a Loan Party to,
directly or
54
indirectly, enter into, incur or permit to exist any agreement or other
arrangement in respect of Indebtedness of such Subsidiary that is secured or
that is Guaranteed by a Loan Party that prohibits, restricts or imposes any
condition upon (a) the ability of such Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (b) the ability of such
Subsidiary to pay dividends or other distributions with respect to any of its
Equity Interests or to make or repay loans or advances to the Parent or any
other Loan Party or to Guarantee Indebtedness of the Parent or any other Loan
Party; provided, that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or this Agreement, (ii) the foregoing shall not apply
to restrictions and conditions existing on the date hereof identified on
Schedule 6.06 or to any extension or renewal thereof, or any amendment or
modification thereto that does not materially expand the scope of any such
restriction or condition, (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) the foregoing shall not apply to
provisions limiting the disposition or distribution of assets or property or
transfer of Equity Interests in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements, limited liability company
organizational documents, and other similar agreements entered into in the
ordinary course of business, which limitation is applicable only to the assets,
property or Equity Interests that are the subject of such agreements, (vi) the
foregoing shall not apply to any instrument governing Indebtedness or Equity
Interests of a Person acquired by the Parent or any of its Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
or Equity Interests were incurred or issued in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired; provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Agreement to be incurred, and (viii) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 6.07. Sales of Assets and Subsidiary Stock. The Parent and
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly, consummate any Asset Disposition unless:
(a) the Parent or such Subsidiary receives consideration at the time
of such Asset Disposition at least equal to the fair market value
(including as to the value of all non-cash consideration), as determined
in good faith by the Borrower's board of directors, of the shares and
assets subject to such Asset Disposition;
(b) the terms and conditions of such Asset Disposition were obtained
through an arm's-length negotiation; and
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(c) at least 75% of the consideration therefor received by the
Parent or such Subsidiary is in the form of cash or Cash Equivalents;
provided that for the purposes of this paragraph (c), the amount of (i)
any liabilities (as shown on the Parent's or the applicable Subsidiary's
most recent balance sheet (or in the notes thereto)) of the Parent or any
Subsidiary (other than liabilities that by their terms are subordinated to
the obligations with respect to the Loans) that are assumed by the
transferee of any such assets and from which the Parent and any Subsidiary
have been validly released by all creditors in writing and (ii) any
securities received by the Parent or any Subsidiary from such transferee
that are converted into cash (to the extent of the cash received) within
180 days following the closing of such Asset Disposition shall be deemed
to be cash for the purposes of this Section 6.07.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise, or shall
fail to make an Asset Disposition Offer or Change in Control Offer when
required to do so or shall fail to comply with its obligations in respect
of any such Asset Disposition Offer or Change in Control Offer and such
failure to make an Asset Disposition Offer or Change in Control Offer or
comply with obligations in connection therewith shall continue unremedied
for a period of three Business Days;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate or financial statement furnished pursuant to or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the Parent or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in clause (a) of Section 5.02
or in Section 5.03 (with respect to the existence of the Parent or the
Borrower) or 5.08 or in Article VI (other than Section 6.05);
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(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender);
(f) the Parent or any Subsidiary shall fail to make any payment of
principal, interest or premium (regardless of amount) in respect of any
Material Indebtedness when and as the same shall become due and payable,
and such failure shall continue after the expiration of the grace period
(if any) for such failure specified in the agreement or instrument
governing such Indebtedness;
(g) the Parent or any Subsidiary shall fail to observe or perform
any term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any Material Indebtedness, if such
failure results in any Material Indebtedness becoming due prior to its
scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
liquidation, reorganization or other relief in respect of the Parent or
any Subsidiary (other than an Excluded Subsidiary) or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent or any
Subsidiary (other than an Excluded Subsidiary) or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Parent or any Subsidiary (other than an Excluded Subsidiary)
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (i) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Parent or any Subsidiary (other than an
Excluded Subsidiary) or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Parent or any Subsidiary (other than an Excluded Subsidiary)
shall become unable, admit in writing its inability or fail generally to
pay its debts as they become due;
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(k) one or more judgments for the payment of money in an aggregate
amount in excess of $35,000,000 (to the extent such amount is not either
(i) covered by insurance and the applicable insurer has acknowledged
liability or has been notified and is not disputing coverage or (ii)
required to be indemnified by another Person that is reasonably likely to
be able to satisfy its indemnity obligation (other than the Parent or a
Subsidiary) and such Person has acknowledged such obligation or has been
notified and is not disputing such obligation) shall be rendered against
the Parent, any Subsidiary or any combination thereof and the same shall
remain undischarged and unsatisfied for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Parent or any Subsidiary to enforce any such judgment; or
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, would reasonably be expected to result in a Material
Adverse Effect;
then, and in every such event (other than an event with respect to the Parent or
the Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Parent or the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
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The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Parent or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Parent or any of the Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Parent, the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent by
the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for a
Loan Party), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
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The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
the Guarantee Agreement, any related agreement or any document furnished
hereunder or thereunder.
The parties hereto acknowledge that the Arrangers (in their capacity
as such) do not have any duties or responsibilities under any of the Loan
Documents and will not be subject to liability thereunder to any of the Loan
Parties for any reason.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Parent or the Borrower, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of the Chief Financial Officer
(Telecopy No. 313-758-4238) with a copy to the Treasurer (Telecopy No.
313-758-3936) and the General Counsel (Telecopy No. 313-758-3897);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No. 713-750-2938), with a
copy to JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. 212-270-5127); and
(iii) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number or
the contact person for notices and other communications hereunder by notice to
the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan
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Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.16 with respect to any
Incremental Facility Amendment, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Parent, the Borrower and the Required Lenders or by
the Parent, the Borrower and the Administrative Agent with the consent of the
Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent and
each Loan Party that is a party thereto with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
(including prepayment fees) payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan, or any interest thereon, or any fees
(including prepayment fees) payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.14(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender or (vi) release the Parent or any Material Subsidiary from its
Guarantee under the Guarantee Agreement, or limit its liability in respect of
such Guarantee, without the written consent of each Lender; provided further,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent hereunder without the prior written consent
of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable and documented out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of a single counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
62
including its rights under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of the Loan
Documents or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby or thereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Parent or any of the
Subsidiaries, or any Environmental Liability related in any way to the Parent or
any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee or any of its directors, trustees, officers or
employees.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees (but without limiting the obligation of
the Borrower to pay such amount) to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, the Loan Documents or any agreement or instrument contemplated
thereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
the Borrower may not
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assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that no consent of the Borrower shall
be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default under
clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing, any other assignee; and
(B) the Administrative Agent.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or outstanding
Loans, the amount of the Commitment or outstanding Loans of
the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent;
provided that no such consent of the Borrower shall be
required if an Event of Default under clause (a), (b), (h) or
(i) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent (and, in the case of an assignment
requiring the consent of the Borrower pursuant to subparagraph
(b)(i)(A) of this Section 9.04, the Borrower) an Assignment
and Assumption,
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and shall pay to the Administrative Agent a processing and
recordation fee of $3,500;
(D) the Administrative Agent shall notify the Borrower of each
assignment of which the Administrative Agent becomes aware;
provided that the failure of the Administrative Agent to
provide such notice shall in no way affect any of the rights
or obligations of the Administrative Agent under this
Agreement or otherwise subject the Administrative Agent to any
liability; and
(E) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has
the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.11, 2.12, 2.13 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Parent,
the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Parent, the
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Borrower, any Lender and their respective representatives (including counsel and
accountants), at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (C) such Lender
shall deliver to the Administrative Agent and the Borrower (in such number of
copies as shall be requested by the recipient) duly signed completed copies of
Internal Revenue Service Form W-8IMY (or any successor thereto), together with
any information statements of exemption required under the Code for each
Participant and (D) the Loan Parties, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Parent and Borrower herein and in the certificates or
other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on
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any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.11, 2.12, 2.13 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the Guarantee Agreement and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Article IV, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. Upon the occurrence and during the
continuance of an Event of Default, and provided that the Loans shall have
become or shall have been declared due and payable pursuant to the provisions of
Article VII, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender to or for the credit
or the account of the Parent or the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Any
such deposits and obligations may be combined in such setoff and application,
regardless of the currency in which such deposits and obligations are
denominated. Each Lender agrees to promptly notify the Parent and the Borrower
after any such set-off and application; provided, that the failure of any Lender
to so notify the Parent and the Borrower shall not affect the validity of any
such set-off and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
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SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Parent and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) Each of the Parent and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to any Loan Document
in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
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SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Parent or the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Parent or the Borrower. For the purposes of this Section,
"Information" means all information received from the Parent or the Borrower
relating to the Parent or the Borrower or their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Parent or the
Borrower. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Each Lender acknowledges that Information as defined in Section
9.12(a) furnished to it pursuant to this Agreement may include material
non-public information concerning the Parent, the Borrower and their Related
Parties or their respective securities, and confirms that it has developed
compliance procedures regarding the use of material non-public information and
that it will handle such material non-public information in accordance with
those procedures and applicable law, including Federal and state securities
laws.
All information, including requests for waivers and amendments,
furnished by the Parent, the Borrower or the Administrative Agent pursuant to,
or in the course of administering, this Agreement will be syndicate-level
information, which may contain material non-public information about the Parent,
Borrower, the Loan Parties and their Related Parties or their respective
securities. Accordingly, each Lender represents to the Parent, the Borrower and
the Administrative Agent that it has identified in its
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Administrative Questionnaire a credit contact who may receive information that
may contain material non-public information in accordance with its compliance
procedures and applicable law, including Federal and state securities laws.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, such excess amount shall be paid to such
Lender on subsequent payment dates to the extent not exceeding the Maximum Rate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN AXLE &
MANUFACTURING, INC.
by /s/
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Finance &
Chief Financial Officer
AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC.
by /s/
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Finance &
Chief Financial Officer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
by /s/
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory