1
EXHIBIT 4.f
Execution Copy
MASCOTECH, INC.
________________________________________________
$575,000,000
CREDIT AGREEMENT
DATED AS OF FEBRUARY 28, 1997
______________________________________________
NBD BANK, AS AGENT
AND
COMERICA BANK,
THE BANK OF NEW YORK,
NATIONSBANK, N.A., AND
BANK OF AMERICA ILLINOIS,
AS CO-AGENTS
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TABLE OF CONTENTS
ARTICLE I. ............................................................ 1
DEFINITIONS ........................................................... 1
1.1 CERTAIN DEFINITIONS ....................................... 1
1.2 ACCOUNTING TERMS .......................................... 17
1.3 OTHER DEFINITIONS; RULES OF CONSTRUCTION .................. 17
ARTICLE II ........................................................... 18
TERMINATION OF EXISTING CREDIT AGREEMENT .............................. 18
2.1 TERMINATION ............................................... 18
ARTICLE III. .......................................................... 18
THE LOANS AND LETTER OF CREDIT ISSUANCES .............................. 18
3.1 SYNDICATED BORROWINGS...................................... 18
3.2 NOTICE OF SYNDICATED BORROWINGS............................ 18
3.3 LETTERS OF CREDIT.......................................... 19
3.4 BID-OPTION BORROWINGS ..................................... 22
3.5 NOTICE TO BANKS; FUNDING OF LOANS. ........................ 25
3.6 THE NOTES ................................................. 27
3.7 CERTAIN FEES .............................................. 27
3.8 TERMINATION OR REDUCTION OF COMMITMENTS.................... 28
3.9 MANDATORY TERMINATION OF COMMITMENTS....................... 28
3.10 EXTENSION OF SCHEDULED EXPIRATION DATE.................... 28
ARTICLE IV ............................................................ 29
PRINCIPAL PAYMENTS; INTEREST; ETC ..................................... 29
4.1 SCHEDULED PRINCIPAL PAYMENTS .............................. 29
4.2 PREPAYMENTS OF PRINCIPAL .................................. 29
4.3 INTEREST PAYMENTS ......................................... 30
4.4 PAYMENT PROCEDURES ........................................ 31
4.5 COMPUTATION OF INTEREST AND FEES .......................... 32
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4.6 NO SETOFF OR DEDUCTION .................................... 32
4.7 OTHER PROVISIONS APPLICABLE TO FOREIGN CURRENCY
BID-OPTION LOANS .......................................... 32
ARTICLE V.............................................................. 33
CHANGE IN CIRCUMSTANCES ............................................... 33
5.1 IMPOSSIBILITY; INTEREST RATE INADEQUATE OR UNFAIR ......... 33
5.2 ILLEGALITY................................................. 33
5.3 INCREASED COST; YIELD PROTECTION........................... 34
5.4 SUBSTITUTE LOANS........................................... 36
5.5 FUNDING LOSSES............................................. 36
ARTICLE VI............................................................. 37
REPRESENTATIONS AND WARRANTIES......................................... 37
6.1 CORPORATE EXISTENCE AND POWER.............................. 37
6.2 CORPORATE AUTHORITY; NO VIOLATIONS;
GOVERNMENTAL FILINGS; ETC ................................. 37
6.3 BINDING EFFECT ............................................ 37
6.4 LITIGATION ................................................ 37
6.5 TAXES...................................................... 38
6.6 FINANCIAL CONDITION........................................ 38
6.7 COMPLIANCE WITH ERISA ..................................... 38
6.8 ENVIRONMENTAL MATTERS ..................................... 38
6.9 COMPLIANCE WITH LAWS ...................................... 39
ARTICLE VII............................................................ 39
COVENANTS ............................................................. 39
7.1 FINANCIAL STATEMENTS ...................................... 39
7.2 CERTIFICATES OF NO DEFAULT AND COMPLIANCE ................. 40
7.3 PRESERVATION OF CORPORATE EXISTENCE, ETC. ................ 41
7.4 [INTENTIONALLY OMITTED] ................................... 41
7.5 TOTAL LEVERAGE RATIO ...................................... 41
7.6 [INTENTIONALLY OMITTED] ................................... 41
7.7 TANGIBLE CAPITAL FUNDS..................................... 41
7.8 SENIOR DEBT COVERAGE ...................................... 46
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7.9 SUBSIDIARY INDEBTEDNESS.................................... 41
7.10 NEGATIVE PLEDGE .......................................... 42
7.11 DISPOSITIONS OF ASSETS; MERGERS AND CONSOLIDATIONS;
RESTRICTED TRANSFERS...................................... 43
7.12 CHANGES IN SUBORDINATED DEBT ............................. 43
7.13 USE OF PROCEEDS........................................... 43
7.14 FISCAL YEAR............................................... 44
7.15 COMPLIANCE WITH LAWS...................................... 44
ARTICLE VIII........................................................... 44
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES ............... 44
8.1 EACH BORROWING AND LETTER OF CREDIT ISSUANCE............... 44
8.2 INITIAL BORROWING OR LETTER OF CREDIT ISSUANCE............. 45
8.3 CLOSING ................................................... 45
ARTICLE IX............................................................. 46
EVENTS OF DEFAULT AND REMEDIES ........................................ 46
9.1 EVENTS OF DEFAULT.......................................... 46
9.2 REMEDIES................................................... 48
9.3 SET OFF ................................................... 48
ARTICLE X.............................................................. 49
THE AGENTS AND THE BANKS .............................................. 49
10.1 APPOINTMENT AND AUTHORIZATION............................. 49
10.2 AGENT AND AFFILIATES ..................................... 49
10.3 SCOPE OF AGENT'S DUTIES .................................. 49
10.4 RELIANCE BY AGENT ........................................ 49
10.5 DEFAULT .................................................. 49
10.6 LIABILITY OF AGENT........................................ 50
10.7 NONRELIANCE ON AGENT AND OTHER BANKS...................... 50
10.8 INDEMNIFICATION........................................... 50
10.9 RESIGNATION OF AGENT...................................... 51
10.10 SHARING OF PAYMENTS...................................... 51
10.11 WITHHOLDING TAX EXEMPTION ............................... 51
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10.12 THE CO-AGENTS ........................................... 52
ARTICLE XI............................................................. 52
MISCELLANEOUS ......................................................... 52
11.1 AMENDMENTS, ETC........................................... 52
11.2 NOTICES................................................... 53
11.3 NO WAIVER BY CONDUCT; REMEDIES CUMULATIVE................. 53
11.4 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS............ 53
11.5 EXPENSES AND INDEMNIFICATION.............................. 54
11.6 SUCCESSORS AND ASSIGNS.................................... 55
11.7 CONFIDENTIALITY.......................................... 57
11.8 COUNTERPARTS; EFFECTIVENESS OF TELECOPIED SIGNATURES...... 58
11.9 TABLE OF CONTENTS AND HEADINGS............................ 58
11.10 CONSTRUCTION OF CERTAIN PROVISIONS....................... 58
11.11 INDEPENDENCE OF COVENANTS................................ 58
11.12 INTEREST RATE LIMITATION................................. 58
11.13 SUBSTITUTION OF BANKS.................................... 59
11.14 COLLATERAL............................................... 59
11.15 GOVERNING LAW............................................ 59
11.16 INTEGRATION AND SEVERABILITY............................. 59
11.17 WAIVER OF JURY TRIAL..................................... 59
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SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1 - Applicable Margin Chart
SCHEDULE 2 - Certain Industrial Revenue Bonds (See Section 9.1(e)
of the Credit Agreement)
EXHIBITS
Exhibit A - Syndicated Note
Exhibit B - Bid-Option Note
Exhibit C - Notice of Syndicated Borrowing
Exhibit D - Request for Letter of Credit Issuance
Exhibit E - Bid-Option Quote Request
Exhibit F - Invitation for Bid-Option Quotes
Exhibit G - Bid-Option Quote
Exhibit H - Notice of Disbursement of Foreign Currency Bid-Option
Loan
Exhibit I - Notice of Receipt of Foreign Currency Bid-Option Loan
Payment
Exhibit J - Securities Purchase Agreement
Exhibit K - Assignment and Acceptance
Exhibit L - Notice of Substitution of Bank(s)
Exhibit M - Opinion of Counsel for the Company
Exhibit N - Opinion of Counsel for the Agent
Exhibit O - Terms of Subordination
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 28, 1997 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), is by
and among MASCOTECH, INC., a Delaware corporation formerly named Masco
Industries, Inc. (the "Company"), the lenders party hereto from time to time
(collectively, the "Banks" and individually, a "Bank"), NBD BANK, a Michigan
banking corporation formerly named NBD Bank, N.A., as agent (in such capacity,
the "Agent") for the Banks, and COMERICA BANK, a Michigan banking corporation,
THE BANK OF NEW YORK, a New York banking corporation, NATIONSBANK, N.A., a
national banking association, and BANK OF AMERICA ILLINOIS, an Illinois banking
corporation, as co-agents (in such capacity, the "Co-Agents").
RECITALS:
A. The Company, the Existing Banks (as hereinafter defined) and the
Existing Agent (as hereinafter defined) have entered into the Existing Credit
Agreement (as hereinafter defined), pursuant to which the Existing Banks
provided to the Company a revolving credit facility in the maximum aggregate
principal amount of $675,000,000.
B. The Company now desires to replace the existing revolving credit
facility under the Existing Credit Agreement with a new revolving credit
facility in an aggregate principal amount the Dollar Equivalent (as hereinafter
defined) of which does not exceed $575,000,000, including standby letters of
credit in an aggregate amount not exceeding $20,000,000, in order to provide
funds for its general corporate purposes.
C. The Banks are willing to provide such a replacement revolving
credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, and in any
certificate, report, other agreement or other document made or delivered
pursuant to this Agreement, the following terms shall have the following
respective meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined unless the context otherwise requires):
"Absolute Rate Dollar Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Absolute Rate.
"Acquired Debt" means, with respect to any Person who becomes a Subsidiary
after the Closing Date, Debt of such Person which was outstanding before such
Person became a Subsidiary and which was not created in contemplation of such
Person becoming a Subsidiary.
"Additional Bank" shall have the meaning ascribed thereto in Section
11.13(b).
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"Adjusted Net Worth" means, as of any date, the sum of (a) Net Worth, plus
(b) the Deferred Trimas Gain, plus (or, if the amount determined pursuant to the
following clause (c) is negative, minus the absolute amount thereof, provided
that such amount, if subtracted, shall not exceed the amount determined pursuant
to clause (b) of this definition) (c) the amount equal to 33-1/3% of the
difference of (i) the aggregate Market Value of all shares of common stock of
Trimas owned by the Company on such date, minus (ii) the aggregate value at
which such common stock is carried on the Company's books on such date, plus (d)
an amount equal to the lesser of (i) the Deferred MSX Gain or (ii) $35,000,000.
"Affiliate", when used with respect to any Person, means any other Person
which, directly or indirectly, controls or is controlled by or is under common
control with such Person. For purposes of this definition, "control" (including
the correlative meanings of the terms "controlled by" and "under common control
with"), with respect to any Person, shall mean possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Applicable Lending Office" means, as to any Bank, its Domestic Lending
Office, Eurodollar Lending Office or any other office of such Bank or of any
Affiliate of such Bank selected and notified to the Company and the Agent as the
applicable lending office for a particular Loan or type of Loan by such Bank;
provided that the Company shall not be responsible for the increase, if any, in
costs hereunder that (a) are due to any Bank changing its Applicable Lending
Office with respect to a particular Loan or type of Loan and (b) arise because
of circumstances existing at the time of such change.
"Applicable Margin" means, with respect to any Application Period for
Eurodollar Rate Syndicated Loans, CD Rate Loans, Facility Fees and Letters of
Credit, the percentage found in the applicable chart set forth on Schedule 1
attached hereto by reading down the column of Senior Leverage Ratio ranges to
the row for the range into which the Senior Leverage Ratio as of the relevant
Determination Date falls, and then reading across that row to the Interest
Coverage Ratio column for the range into which the Interest Coverage Ratio for
the relevant Determination Period falls. By way of example, if the Senior
Leverage Ratio as of the relevant Determination Date is 0.53:1.00 and the
Interest Coverage Ratio for the relevant Determination Period is 2.75:1.00, the
Applicable Margin for Eurodollar Rate Syndicated Loans during the Application
Period shall be 0.40%. For purposes of this definition of the term "Applicable
Margin", (a) the term "Application Period" means a period commencing with and
including the 60th day after the end of the most recently completed fiscal
quarter of the Company to and including the 59th day after the end of the next
following fiscal quarter of the Company, (b) the term "Determination Date"
means, with respect to any Application Period, the last day of the Determination
Period for such Application Period, (c) the term "Determination Period" means,
with respect to any Application Period, the period of four consecutive
fiscal quarters of the Company ending with the fiscal quarter ending
immediately preceding such Application Period, and (d) any change in the
Applicable Margin during any Interest Period for any Syndicated Loan shall be
effective as to such Syndicated Loan upon such change in the Applicable Margin
taking effect pursuant to this definition, but any change in the Applicable
Margin while any Letter of Credit is outstanding shall not be effective with
respect to such Letter of Credit for any quarterly period for which the fee for
such Letter of Credit has already been paid under Section 3.3(c). For purposes
of determining the Applicable Margin,
(i) if the proceeds resulting from all Stock Issuances, net of the cost of
all Stock Redemptions (other than any issuance or redemption, purchase,
retirement or other acquisition in connection with the Company's employee stock
award programs), or if the payments resulting from all Stock Redemptions, net of
the proceeds resulting from all Stock Issuances, within 45 days after a
Determination Date, exceed $10,000,000, the Senior Leverage Ratio shall be
calculated on a pro forma basis to reflect the effect of all Stock Issuances and
Stock Redemptions (other than any issuance or redemption, purchase retirement or
other acquisition in
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connection with the Company's employee stock award programs) and the
related application of proceeds or funding or payment thereof within such
45-day period; and
(ii) if the proceeds resulting from all Stock Issuances, net of the cost
of Stock Redemptions (other than any issuance or redemption, purchase,
retirement or other acquisition in connection with the Company's employee stock
awards programs), or if the payments resulting from all Stock Redemptions, net
of the proceeds resulting from all Stock Issuances, from the beginning of a
Determination Period through and including the 45th day after the end of such
Determination Period exceeds $10,000,000, the Interest Coverage Ratio for such
Determination Period shall be calculated on a pro forma basis as if each such
Stock Issuance and each such Stock Redemption (other than any issuance or
redemption, purchase, retirement or other acquisition in connection with the
Company's employee stock award programs) and the related application of proceeds
or funding or payment thereof had occurred on the first day of such
Determination Period.
Notwithstanding anything in this definition of "Applicable Margin" to the
contrary, if the Company has a Senior Debt Rating at any time, including at any
time prior to the end of an Application Period, the Applicable Margin shall
change on the date such Senior Debt Rating is effective such that the Applicable
Margin is (x) 0.25% for Eurodollar Rate Syndicated Loans and, subject to clause
(d) above, Letters of Credit, (y) 0.375% for CD Rate Loans and (z) 0.10% for
Facility Fees.
"Application Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Assignment and Acceptance" is defined in Section 11.6(d).
"Available Masco Corporation Funding Commitment" means, as of any date, any
unused and available amount of the "Commitment" of Masco Corporation under, and
as defined in, the Securities Purchase Agreement, provided that such amount for
purposes of this definition shall not exceed $100,000,000, provided that such
"Commitment" relates only to the purchase by Masco Corporation of equity
securities of the Company or of Subordinated Debt of the Company.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA that is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed to by the Company or any
ERISA Affiliate of the Company.
"Bid-Option Absolute Rate" means, with respect to any Absolute Rate Dollar
Bid-Option Loan or Foreign Currency Bid-Option Loan, the Bid-Option Absolute
Rate, as defined in Section 3.4(d)(ii)(D), that is offered for such Loan.
"Bid-Option Auction" means a solicitation of Bid-Option Quotes setting
forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins, as the
case may be, pursuant to Section 3.4(b).
"Bid-Option Eurodollar Rate" means the sum of (a) the Bid-Option Eurodollar
Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" means, with respect to any Eurodollar
Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as defined in
Section 3.4(d)(ii)(E), that is offered for such Loan.
"Bid-Option Interest Period" means (a) with respect to each Eurodollar Rate
Dollar Bid-Option Borrowing, the Eurodollar Rate Interest Period applicable
thereto, and (b) with respect to each Absolute Rate Dollar Bid-Option Borrowing
and Foreign Currency Bid-Option Borrowing, the period commencing on the
MASCOTECH, INC. CREDIT AGREEMENT
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date of such Borrowing and ending on the date elected by the Company in
the applicable Notice of Borrowing, which date shall be not less than 15 and
not more than 360 days after the date of such Borrowing; provided that:
(i) any such Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day; and
(ii) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Bid-Option Loan" means a Loan which is made by a Bank pursuant to a
Bid-Option Auction.
"Bid-Option Note" means a promissory note of the Company in substantially
the form of Exhibit B hereto evidencing the obligation of the Company to repay
Bid-Option Loans, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Bid-Option Percentage" means, with respect to any Bank, the percentage of
the Dollar Equivalent of the aggregate outstanding principal amount of the
Bid-Option Loans of all the Banks represented by the Dollar Equivalent of the
outstanding principal amount of the Bid-Option Loans of such Bank.
"Bid-Option Quote" means an offer by a Bank to make a Bid-Option Loan in
accordance with Section 3.4(d).
"Bid-Option Quote Request" shall have the meaning ascribed thereto in
Section 3.4(b).
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Company on a single date, at a single rate and for a single Interest Period. A
Borrowing may be referred to as a "Floating Rate Borrowing" if such Loans are
Floating Rate Loans, a "CD Rate Borrowing" if such Loans are CD Rate Loans, a
"Eurodollar Rate Syndicated Borrowing" if such Loans are Eurodollar Rate
Syndicated Loans, a "Dollar Bid-Option Borrowing" if such Loans are Dollar
Bid-Option Loans, a "Foreign Currency Bid-Option Borrowing" if such Loans are
Foreign Currency Bid-Option Loans, an "Absolute Rate Dollar Bid-Option
Borrowing" if such Loans are Absolute Rate Dollar Bid-Option Loans, a
"Eurodollar Rate Dollar Bid-Option Borrowing" if such Loans are Eurodollar Rate
Dollar Bid-Option Loans, or a "Eurodollar Rate Borrowing" if such Loans are
Eurodollar Rate Loans. CD Rate Borrowings and Eurodollar Rate Syndicated
Borrowings are sometimes collectively referred to as "Fixed Base Rate Syndicated
Borrowings"; Floating Rate Borrowings and Fixed Base Rate Syndicated Borrowings
are sometimes collectively referred to as "Syndicated Borrowings"; Absolute Rate
Dollar Bid-Option Borrowings and Eurodollar Rate Dollar Bid-Option Borrowings
are sometimes collectively referred to as "Dollar Bid-Option Borrowings"; Dollar
Bid-Option Borrowings and Foreign Currency Bid-Option Borrowings are sometimes
collectively referred to herein as "Bid-Option Borrowings"; and Fixed Base Rate
Syndicated Borrowings and Bid-Option Borrowings are sometimes collectively
referred to as "Fixed Rate Borrowings".
"Business Day" means any day on which commercial banks are open for
domestic and international business (including dealings in Dollar deposits) in
New York City and Detroit and, with respect to Eurodollar Rate Loans and the
related Interest Periods, in London, and with respect only to Foreign Currency
Bid-Option Loans and the related Interest Periods, on which dealings in deposits
in the relevant Foreign Currency are carried out in the relevant interbank
market and in the principal financial center of the country issuing the relevant
Foreign Currency.
MASCOTECH, INC. CREDIT AGREEMENT
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"Capital Expenditures" means, for any period, the aggregate amount of
capital expenditures of the Company and its Consolidated Subsidiaries during
such period, determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Capital Lease" of any Person means any lease which, in accordance with
generally accepted accounting principles, is required to be capitalized on the
books of such Person.
"Cash and Cash Equivalents" means (a) all cash of the Company and its
Consolidated Subsidiaries on hand or on deposit, plus (b) cash equivalents as
determined in accordance with generally accepted accounting principles, plus (c)
all investments of the Company and its Consolidated Subsidiaries of the
following types, whether or not such investments are cash equivalents in
accordance with generally accepted accounting principles: (i) commercial paper
of any United States issuer having the highest rating then given by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Corporation, (ii) direct
obligations of, and obligations fully guaranteed by, the United States of
America, and (iii) certificates of deposit of (A) any commercial bank which is a
member of the Federal Reserve System and which has capital, surplus and
undivided profits (as shown on its most recently published statement of
condition) aggregating not less than $100,000,000 or (B) any Bank, provided that
each of the foregoing investments has a maturity date not later than 180 days
after the date of acquisition thereof by the Company or any of its Consolidated
Subsidiaries.
"CD Base Rate" applicable to any CD Rate Interest Period means the per
annum rate that is equal to the sum of:
(a) the rate per annum obtained by dividing (i) the arithmetic mean of
secondary market bid rates per annum (expressed as a percentage) quoted at
approximately 10:00 a.m. New York time (or as soon thereafter as practicable) on
the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing selected by the Agent for the purchase
from the CD Reference Banks at face value of negotiable certificates of deposit
of the CD Reference Banks with a term comparable to such Interest Period in an
aggregate amount comparable to the related CD Rate Loans to be made by such CD
Reference Banks in their capacity as Banks hereunder, by (ii) an amount equal to
one minus the stated maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) under any regulations of the Board of
Governors of the Federal Reserve System (or any successor agency thereto),
applicable on the first day of the related Interest Period to a negotiable
certificate of deposit of the bank that is the Agent with a term comparable to
such Interest Period in an aggregate amount comparable to the related CD Rate
Loan to be made by such bank in its capacity as a Bank hereunder, plus
(b) the annual assessment rate (expressed as a percentage) estimated by
the Agent on the first day of the related Interest Period to be payable by the
bank that is the Agent to the Federal Deposit Insurance Corporation (or any
successor agency thereto) for such Corporation's (or such successor's) insuring
Dollar deposits of such bank in the United States during the related Interest
Period;
all as conclusively determined, absent manifest error, by the Agent, such sum to
be rounded up, if necessary, to the nearest whole multiple of one one-hundredth
of one percent (1/100 of 1%).
"CD Rate" means, with respect to any CD Rate Loan for any CD Rate Interest
Period or portion thereof, the per annum rate that is equal to the sum of (a)
the Applicable Margin, plus (b) the CD Base Rate; which CD Rate shall change
simultaneously with any change in such Applicable Margin.
"CD Rate Interest Period" means, with respect to each CD Rate Borrowing,
the period commencing on the date of such CD Rate Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Company may elect in the applicable Notice of
Borrowing, provided that:
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(a) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day; and
(b) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"CD Rate Loan" means a Loan which pursuant to the applicable Notice of
Borrowing is made at the CD Rate.
"CD Reference Bank" means each of The First National Bank of Chicago and
▇▇▇▇▇▇ Guaranty Trust Company of New York, or such other CD Reference Banks as
may be appointed pursuant to Section 11.6.
"Closing Date" means the first day on which all the following shall have
occurred: (a) the Company has executed this Agreement and furnished all
documents required under Section 8.3, and all matters required under such
Section have been completed, (b) the Agent has received telexes or telecopies
affirming execution of this Agreement in counterparts by all the Banks, and (c)
the Agent has executed this Agreement. Subject to the second sentence of
Section 10.6, the Agent shall notify each party hereto of the occurrence of the
Closing Date on the date thereof.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means, with respect to each Bank whose commitment has not been
terminated pursuant to Section 11.13, the commitment of such Bank to make
Syndicated Loans pursuant to Section 3.1 and to participate in the risk of
Letters of Credit pursuant to Section 3.3, in an aggregate principal amount the
Dollar Equivalent of which does not exceed (a) in the case of each Bank
originally a party hereto, the amount set forth opposite the name of such Bank
on the signature pages hereof, and (b) in the case of each Bank becoming a party
hereto in accordance with Section 11.6(d) or 11.13, the aggregate amount
assigned to it, in each case (i) less the aggregate amount, if any, subsequently
assigned by it in accordance with Section 11.6(d), (ii) plus the aggregate
amount, if any, subsequently assigned to it under Section 11.6(d) or 11.13 and
(iii) subject to activation pursuant to SectionE3.1, and as such amount may be
reduced from time to time pursuant to Section 3.8.
"Commitment Percentage" means, with respect to any Bank, the percent of the
aggregate amount of all the Commitments represented by the amount of such Bank's
Commitment.
"Consolidated" or "consolidated" refers to the consolidation of the
accounts of a Person and its Subsidiaries in accordance with generally accepted
accounting principles.
"Consolidated Subsidiary" of any corporation means any Subsidiary which
would be consolidated on the consolidated balance sheet of such corporation in
accordance with generally accepted accounting principles.
"Current Assets" means, at any time, the current assets of the Company and
its Consolidated Subsidiaries, determined as to amount and classification on a
consolidated basis in accordance with generally accepted accounting principles.
"Current Market Price" with respect to any shares of stock, means, as of
any day, the last reported sales price or, in the event that no sale takes place
on such day, the average of the reported closing bid and
MASCOTECH, INC. CREDIT AGREEMENT
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asked prices, in either case as reported on the New York Stock
Exchange, on the principal national securities exchange on which such stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, by NASDAQ National Market System or, if such
stock is not quoted on such National Market System, the average of the closing
bid and asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked prices for such stock on such day shall not have
been reported through NASDAQ, the average of the closing bid and asked prices
on such day as furnished by any New York Stock Exchange member firm regularly
making a market in such security selected by the Agent.
"Debt" means: (a) indebtedness for money borrowed; (b) the capitalized
portion of lease rentals under Capital Leases; (c) other indebtedness incurred
in connection with the acquisition of any real or personal property, stock, debt
or other assets (to the extent that any of the foregoing acquisition
indebtedness is represented by any notes, bonds, debentures or similar evidences
of indebtedness); and (d) obligations in respect of obligations or indebtedness
of others of the types referred to in each of the foregoing clauses (a)-(c), for
the payment of which the Company or any Consolidated Subsidiary is directly or
contingently liable, or which is secured by any property of the Company or any
Consolidated Subsidiary (whether or not the Company or such Consolidated
Subsidiary is liable therefor).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Deferred MSX Gain" means, as of any date, the remaining amount of the
liability or contra asset of the Company booked in connection with the transfer
of assets by the Company to MSX International on January 3, 1997, which amount
was approximately $40,000,000 as of January 3, 1997 and has not been recognized
as income to the Company.
"Deferred Trimas Gain" means, as of any date, the remaining amount of the
liability or contra asset of the Company booked in connection with the transfer
of assets by the Company to Trimas prior to the Closing Date, which amount was
approximately $63,520,000 as of December 31, 1996 and has not been recognized as
income to the Company.
"Determination Date" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Determination Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Dollar Bid-Option Loan" means a Bid-Option Loan made in Dollars.
"Dollar Bid-Option Percentage" means, with respect to any Bank and any
Dollar Bid-Option Borrowing, the percentage of the aggregate outstanding
principal amount of all the Dollar Bid-Option Loans comprising such Borrowing
represented by the outstanding principal amount of the Dollar Bid-Option Loan
made by such Bank as part of such Borrowing.
"Dollar Equivalent" means, as of any date, (a) with respect to any amount
of Dollars, the amount thereof, and (b) with respect to any amount of any
Foreign Currency, the amount of Dollars that could be purchased with such amount
of such Foreign Currency at the spot rate of exchange (except as provided in
Section 3.7(a)) quoted by the Agent at approximately 10:00 a.m. (Detroit time)
on such date or such number of Business Days before such date as may reasonably
be deemed necessary by the Agent for purposes of this Agreement.
"Dollars" and "$" shall mean the lawful money of the United States.
MASCOTECH, INC. CREDIT AGREEMENT
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"Domestic Lending Office" means, as to any Bank, its office identified on
the signature pages hereof as its Domestic Lending Office or such other office
as such Bank may hereafter designate as its Domestic Lending Office.
"Domestic Subsidiary" means a Subsidiary that is incorporated under the
laws of the United States of America or any State thereof.
"EBIT" means, for any period, Net Income, exclusive of any Non-Cash Special
Items, for such period plus, to the extent deducted in determining such Net
Income: (a) Interest Charges for such period, and (b) income and other taxes.
"EBITDA Minus Capital Expenditures" means, as of the end of any fiscal
quarter, the amount determined by subtracting (a) Capital Expenditures
calculated as follows: (i) for the fiscal quarter ended December 31, 1996,
Capital Expenditures for such fiscal quarter then ending and the three
immediately preceding fiscal quarters, (ii) for the fiscal quarter ending March
31, 1997, Capital Expenditures for such fiscal quarter then ending and the four
immediately preceding fiscal quarters times four-fifths, (iii) for the fiscal
quarter ending June 30, 1997, Capital Expenditures for such fiscal quarter then
ending and the five immediately preceding fiscal quarters times two-thirds, (iv)
for the fiscal quarter ending September 30, 1997, Capital Expenditures for such
fiscal quarter then ending and the six immediately preceding fiscal quarters
times four-sevenths and (v) for the fiscal quarter ending December 31, 1997 and
any fiscal quarter thereafter, Capital Expenditures for such fiscal quarter then
ending and the seven immediately preceding fiscal quarters times one-half, from
(b) the sum of EBIT for such fiscal quarter plus the three immediately preceding
fiscal quarters plus, to the extent deducted in determining such EBIT,
depreciation and amortization expense of the Company and its Consolidated
Subsidiaries; provided that when determining the Senior Debt Coverage Ratio for
purposes of Section 7.8, in the event the Company or any of its Consolidated
Subsidiaries acquires any corporation or business, EBITDA Minus Capital
Expenditures shall be calculated on a pro forma basis (which, to the extent
deemed reasonable to the Agent, may include as pro forma adjustments reasonable
eliminations of excess compensation (including salaries) and other adjustments
that are attributable to the change in ownership or management of the
corporation or business) as if the Company or such Consolidated Subsidiary had
owned the acquired corporation or business for the eight fiscal quarters
preceding its acquisition.
"Environmental Laws" means any and all applicable United States federal,
state and local statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
and other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company, are treated as a single employer under Section
414(b), (c) or (m), or the regulations prescribed under Section 414(o), of the
Code.
MASCOTECH, INC. CREDIT AGREEMENT
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"Eurodollar Base Rate" applicable to any Eurodollar Rate Interest Period
means the per annum rate obtained by dividing (a) the per annum rate of interest
at which deposits in Dollars for such Interest Period and in an aggregate amount
comparable to (i) in the case of Eurodollar Rate Syndicated Loans, the amount of
the related Eurodollar Rate Syndicated Loans to be made by the Eurodollar
Reference Banks in their capacity as Banks hereunder, and (ii) in the case of
Eurodollar Rate Dollar Bid-Option Loans, the aggregate amount of the Eurodollar
Rate Dollar Bid-Option Borrowing set forth in the related Bid-Option Quote
Request, are offered to the Eurodollar Reference Banks by other prime banks in
the London or Nassau interbank market, selected in the Eurodollar Reference
Banks' discretion, at approximately 11:00 a.m. London or Nassau time, as the
case may be, on the second Business Day prior to the first day of such
Eurodollar Rate Interest Period, by (b) an amount equal to one minus the stated
maximum rate (expressed as a decimal) of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) that is specified on the first day of such Eurodollar Rate Interest
Period by the Board of Governors of the Federal Reserve System (or any successor
agency thereto) for determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) maintained by a member bank of such System; all as
conclusively determined, absent manifest error, by the Agent, such sum to be
rounded up, if necessary, to the nearest whole multiple of one-hundredth of one
percent (1/100 of 1%).
"Eurodollar Lending Office" means, as to any Bank, its office identified on
the signature pages hereof as its Eurodollar Lending Office or such other branch
(or Affiliate) of such Bank as such Bank may hereafter designate as its
Eurodollar Lending Office.
"Eurodollar Rate Dollar Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Eurodollar Rate.
"Eurodollar Rate Interest Period" means, with respect to each Eurodollar
Rate Syndicated Loan, the period commencing on the date of such Eurodollar Rate
Syndicated Loan and ending one month, two months, three months, four months,
five months or six months thereafter, or twelve months if such proposed
twelve-month Eurodollar Rate Interest Period is specifically agreed to by all
Banks, and with respect to each Eurodollar Rate Dollar Bid-Option Loan, the
period commencing on the date of such Eurodollar Rate Dollar Bid-Option Loan and
ending on a date between fifteen days and twelve months thereafter, as the
Company may request in the applicable Notice of Borrowing; provided that:
(a) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month in
which case such Interest Period shall end on the next preceding Business
Day;
(b) any such Interest Period that begins on the last Business Day
of a calendar month or on a day for which there is no numerically
corresponding day in the calendar month during which such Eurodollar
Interest Period is to end shall end on the last Business Day of such
calendar month; and
(c) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Eurodollar Rate Loan" means any Eurodollar Rate Dollar Bid-Option Loan or
Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Syndicated Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Syndicated Eurodollar Rate.
MASCOTECH, INC. CREDIT AGREEMENT
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"Eurodollar Reference Bank" means the principal London office of each of
The First National Bank of Chicago and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, or such other Eurodollar Reference Banks as may be appointed pursuant to
Section 11.6.
"Events of Default" has the meaning ascribed thereto in Section 9.1.
"Existing Agent" means NBD Bank, a Michigan banking corporation, formerly
known as NBD Bank, N.A., in its capacity as agent for the Existing Banks.
"Existing Banks" means the banks that are parties to the Existing Credit
Agreement.
"Existing Bid-Option Loans" means the "Bid-Option Loans" (as defined in the
Existing Credit Agreement) outstanding on the Closing Date.
"Existing Commitment" means, with respect to each Bank, the amount, if any,
of such Bank's "Commitment" (as defined in the Existing Credit Agreement)
immediately prior to the Closing Date.
"Existing Credit Agreement" means the Credit Agreement dated as of
September 2, 1993, among the Company, the Existing Banks and the Existing Agent,
as amended, supplemented or otherwise modified, and as in force immediately
prior to the Closing Date.
"Existing Debt" shall have the meaning ascribed thereto in the definition
of the term "Senior Debt".
"Existing Loans" means the "Loans" (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement on the Closing Date.
"Facility Fees" means the facility fees payable pursuant to Section 3.7(b).
"Federal Funds Rate" means, as of any day, the per annum rate that is equal
to the average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers,
as published by the Federal Reserve Bank of New York for such day (or, in the
case of any day on which the federal funds market is not open, for the
immediately preceding day on which it was open), or, if such rate is not so
published for any day (or, in the case of any day on which the federal funds
market is not open, for the immediately preceding day on which it was open),
the average of the quotations for such rates received by the Agent from three
federal funds brokers of recognized standing selected by the Agent in its
discretion; all as conclusively determined, absent manifest error, by the
Agent, such average to be rounded up, if necessary, to the nearest whole
multiple of one-hundredth of one percent (1/100 of 1%); which Federal Funds
Rate shall change simultaneously with any change in such published or quoted
rates.
"Fixed Base Rate Syndicated Loan" means any CD Rate Loan or Eurodollar Rate
Syndicated Loan.
"Fixed Rate Loan" means any Fixed Base Rate Syndicated Loan or Bid-Option
Loan.
"Floating Rate" means, with respect to any Floating Rate Loan, the greater
of (a) the Prime Rate and (b) the per annum rate equal to the sum of (i)
one-half percent (1/2%) plus (ii) the Federal Funds Rate; which Floating Rate
shall change simultaneously with any change in such Prime Rate or Federal Funds
Rate, as the case may be.
"Floating Rate Interest Period" means, with respect to each Floating Rate
Borrowing, the period commencing on the date of such Floating Rate Borrowing and
ending 30 days thereafter; provided that:
MASCOTECH, INC. CREDIT AGREEMENT
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(a) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day; and
(b) no Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Floating Rate Loan" means a Loan which pursuant to the applicable Notice
of Borrowing is made at the Floating Rate.
"Foreign Currency" means any currency (other than Dollars) freely
convertible into Dollars and freely transferable, which the Company designates
in any Bid-Option Quote Request with respect to any Foreign Currency Bid-Option
Borrowing as the currency in which the related Loans are to be made.
"Foreign Currency Bid-Option Loan" means a Bid-Option Loan made in a
Foreign Currency.
"Foreign Currency Bid-Option Percentage" means, with respect to any Bank
and any Foreign Currency Bid-Option Borrowing, the percentage of the aggregate
outstanding principal amount of all the Foreign Currency Bid-Option Loans
comprising such Borrowing represented by the outstanding principal amount of the
Foreign Currency Bid-Option Loan made by such Bank as part of such Borrowing.
"Funded Debt" means all Debt of the Company and its Consolidated
Subsidiaries which by its terms matures more than twelve months from the date
such Debt was incurred or assumed by the Company or any such Consolidated
Subsidiary, as the case may be, or which by its terms matures less than
twelve months from such date but by its terms is renewable or extendable at the
option of the Company or any such Consolidated Subsidiary beyond twelve months
from such date, including, without limitation, all Loans under this Agreement
(including those made within twelve months of the Scheduled Expiration Date).
"Interest Charges" means, for any period, the sum of interest that is
expensed (or, under generally accepted accounting principles, would be expensed)
during such period by the Company and its Consolidated Subsidiaries on Debt of
the Company and its Consolidated Subsidiaries.
"Interest Coverage Ratio" means, for any Determination Period, the ratio of
(a) EBIT to (b) Interest Charges.
"Interest Payment Date" means, with respect to each Loan, the last day of
each Interest Period with respect to such Loan and, in the case of any Interest
Period exceeding (a) with respect to Eurodollar Rate Loans, three months or (b)
with respect to CD Rate Loans and Absolute Rate Dollar Bid-Option Loans, ninety
days, those days that occur during such Interest Period at intervals of three
months and ninety days, respectively, after the first day of such Interest
Period.
"Interest Period" means any Floating Rate Interest Period, CD Rate Interest
Period, Eurodollar Rate Interest Period or Bid-Option Interest Period.
"Investment" by any Person means the purchase or other acquisition of any
capital stock of or other ownership interest in, or debt securities of or other
evidences of indebtedness of, any other Person, or the making of a loan or
advancing of any funds or property or making of any other extension of credit
to, or the making of any investment or acquiring any interest whatsoever in, any
other Person, or the satisfaction of any contingent liability, as obligor,
guarantor, surety or in any other capacity, for obligations of any other Person;
provided, however, that the term Investment shall not include any evidence of
indebtedness, any account
MASCOTECH, INC. CREDIT AGREEMENT
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receivable or any obligation or indebtedness on open account which, in
all of the foregoing cases, arises directly from the sale of goods or
merchandise or services for fair value in the ordinary course of business.
"Invitation for Bid-Option Quotes" means an Invitation for Bid-Option
Quotes in the form referred to in Section 3.4(c).
"Letter of Credit" shall mean a standby letter of credit issued for the
account of the Company or any of its Consolidated Subsidiaries pursuant to this
Agreement.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(f).
"Letter of Credit Issuance" shall mean any issuance by the Agent of a
Letter of Credit pursuant to Section 3.3.
"Letter of Credit Obligations Amount" means, as of any date, the amount
equal to the sum of (a) the maximum aggregate amount available to be drawn under
all outstanding Letters of Credit at any time on or before the stated expiry
date thereof, plus (b) the amount of any draws under all Letters of Credit that
have not been reimbursed as provided in Section 3.3(e).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
security interest or similar encumbrance in respect of such asset; provided that
a subordination agreement shall not be deemed to create a Lien. For the
purposes of this Agreement, the Company or any Consolidated Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other similar title retention agreement relating to such asset.
"Loan" means any Syndicated Loan or Bid-Option Loan.
"Market Value" with respect to any shares of stock, means, as of any date,
the average of the Current Market Prices of such shares for the thirty
consecutive trading days ending with such date.
"Masco Corporation" means Masco Corporation, a Delaware corporation.
"Masco Group" means Masco Corporation or any Person who, on the date
hereof, is an Affiliate of Masco Corporation or who hereafter becomes an
Affiliate controlled by Masco Corporation.
"Maximum Allowed Senior Debt Coverage Ratio" has the meaning ascribed
thereto in Section 7.8.
"Minority Interest Cash Investments" means, as of any date, the greater of
(a) $0 or (b) the Dollar Equivalent (such Dollar Equivalent to be determined
with respect to any Investment as of the time such Investment is made) of the
aggregate amount of Cash and Cash Equivalents used by the Company after January
1, 1997 for Investments (other than the Investment in MSX International on
January 3, 1997 (in the approximate amount of $70,000,000)) with respect to
Persons in which the Company owns less than 50% of the capital stock or other
ownership interests of such Persons, provided that such capital stock or other
ownership interests are accounted for by the Company on the equity method as of
such date, and provided, further, that such aggregate amount shall be adjusted
as follows: (i) the Dollar Equivalent of Cash and Cash Equivalents received by
the Company from the disposition of any such Investments (whether or not
accounted for on the equity method at the time of disposition) made since
January 1, 1997 shall be subtracted from such aggregate amount, and (ii) the
Dollar Equivalent of the aggregate amount of Cash and Cash Equivalents received
by the Company from the disposition of any such Investments (whether or not
accounted for on the equity method at the time of disposition) made on or prior
to January 1, 1997 (other than
MASCOTECH, INC. CREDIT AGREEMENT
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any Investments in or relating to Trimas) in excess of the book value
of such Investments shall be subtracted from such aggregate amount. For
purposes of clauses (i) and (ii) above, the Dollar Equivalent of any Cash and
Cash Equivalent shall be determined as of the time such Cash and Cash
Equivalent is received by the Company. Notwithstanding anything herein to the
contrary, the Company may exclude any Investment which would otherwise be
included in this definition of Minority Interest Cash Investments provided that
the difference of the Dollar Equivalent of the Cash and Cash Equivalents of all
such excluded Investments minus the Dollar Equivalent of the Cash and Cash
Equivalents received by the Company from the disposition of all such excluded
Investments in the aggregate is less than $5,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
Any rating or change in rating given by Moody's shall be deemed effective, and
in effect, when publicly announced by Moody's.
"MSX International" shall mean MSX International, Inc., a Delaware
corporation.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which the Company or any
ERISA Affiliate is then making, or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions or has within
the preceding five plan years made contributions, including for these purposes
any Person which ceased to be an ERISA Affiliate during such five-year period.
"Net Income" means, for any period, the greater of (a) $0, and (b) the
consolidated net income of the Company and its Consolidated Subsidiaries (after
deduction for income and other taxes of the Company and its Consolidated
Subsidiaries determined by reference to income or profits of the Company and its
Consolidated Subsidiaries) for such period, all as determined in accordance with
generally accepted accounting principles.
"Net Income Minus Preferred Dividends" means, for any period, the greater
of (a) $0, and (b) the excess of (i) Net Income for such period over (ii) the
aggregate amount of all dividends in respect of any preferred stock of the
Company accrued by the Company during such period.
"Net Worth" means, as of any date, (a) the amount of total shareholders'
equity of the Company and its Consolidated Subsidiaries on such date, determined
on a consolidated basis in accordance with generally accepted accounting
principles, minus (or, if the amount determined pursuant to the following clause
(b) is negative, plus the absolute amount thereof) (b) to the extent included in
total shareholders' equity the amount of the foreign currency translation
adjustment account, plus (c) the amount of the foreign currency translation
adjustment account shown on the consolidated balance sheet of the Company and
its Consolidated Subsidiaries dated December 31, 1992, which amount is
$6,050,000.
"New Debt" shall have the meaning ascribed thereto in the definition of the
term "Senior Debt".
"Non-Cash Special Items" means non-recurring or extraordinary, non-cash
gains or losses or other items affecting income, including, but without
limitation, the cumulative effect of any accounting changes.
"Note" means any Syndicated Note or Bid-Option Note.
"Notice of Bid-Option Borrowing" shall have the meaning ascribed thereto in
Section 3.4(f).
"Notice of Borrowing" means any Notice of Syndicated Borrowing or Notice of
Bid-Option Borrowing.
"Notice of Syndicated Borrowing" shall have the meaning ascribed thereto in
Section 3.2.
MASCOTECH, INC. CREDIT AGREEMENT
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"Overdue Rate" means (a) in respect of the principal of any Loan, the rate
per annum that is equal to the sum of one percent (1%) per annum plus the per
annum rate otherwise applicable to such Loan until the end of the then current
Interest Period for such Loan and, thereafter, a rate per annum that is equal to
the sum of one percent (1%) per annum plus the Floating Rate; and (b) in respect
of other amounts payable by the Company hereunder (other than interest), a per
annum rate that is equal to the sum of one percent (1%) per annum plus the
Floating Rate.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, corporation, partnership, joint venture,
trust, association, limited liability company or unincorporated organization, or
a government or any agency or political subdivision thereof.
"Plan" means at any time any employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained, or contributed to, by the Company or any ERISA Affiliate for
employees of the Company or any ERISA Affiliate, or (b) has at any time within
the preceding five years been maintained, or contributed to, by the Company or
any Person which was at such time an ERISA Affiliate for employees of the
Company or any Person which was at such time an ERISA Affiliate.
"Prime Rate" means the per annum rate of interest publicly announced by NBD
Bank at its main office in Detroit from time to time as its "prime rate", it
being understood that such announced rate may not be the lowest rate of interest
charged by NBD Bank to any of its customers; which Prime Rate shall change
simultaneously with any change in such announced rate.
"Reference Bank" means any CD Reference Bank or Eurodollar Reference Bank.
"Refunded" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds of such Borrowing, results in no net increase in the Dollar Equivalent
of the aggregate outstanding principal amount of the Loans made by any Bank.
"Reimbursement Amount" shall have the meaning ascribed thereto in Section
3.3(e).
"Relevant Day" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt Coverage Ratio".
"Request for Letter of Credit Issuance" shall have the meaning ascribed
thereto in Section 3.3(b).
"Required Banks" means Banks having not less than 51% of the aggregate
amount of the Commitments or, if the Commitments have terminated, Banks holding
Notes evidencing not less than 51% of the aggregate unpaid principal amount of
the Loans.
"Restricted Transfer" has the meaning ascribed thereto in Section 7.11(b).
"S&P" means Standard & Poor's Ratings Group or any successor thereto. Any
rating or change in rating given by S&P shall be deemed effective, and in
effect, when publicly announced by S&P.
MASCOTECH, INC. CREDIT AGREEMENT
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"Scheduled Expiration Date" means February 28, 2002; provided that, if and
only if the requirements of Section 3.10 are satisfied, the "Scheduled
Expiration Date" shall be extended to February 28, 2003.
"Securities Purchase Agreement" means the Amended and Restated Securities
Purchase Agreement dated as of November 23, 1993, as amended by that certain
Amendment No. 1 to Amended and Restated Securities Purchase Agreement made as of
October 31, 1996, between the Company and Masco Corporation, as in effect on the
Closing Date in the form attached hereto as Exhibit J, and as heretofore or
hereafter amended, supplemented or otherwise modified from time to time.
Nothing in this Agreement shall prohibit the Company and Masco Corporation from
amending or terminating such Securities Purchase Agreement, provided that at the
time of such amendment or termination, and immediately after giving effect
thereto, no Default exists or would exist.
"Senior Debt" means all Debt of the Company and its Consolidated
Subsidiaries, determined on a consolidated basis, except Subordinated Debt,
provided that, for purposes of this definition, if any Debt ("Existing Debt") is
to be Refunded (as hereinafter defined) with the proceeds of other money
borrowed ("New Debt"), the Existing Debt to be so Refunded shall be excluded
from Senior Debt when the New Debt is incurred. For purposes of this
definition, Existing Debt is to be "Refunded" by New Debt if, and to the extent
that, (i) no later than five (5) Business Days after the New Debt is incurred,
the Company delivers to the Agent written notice stating that the purpose of
such New Debt is to refund Existing Debt and specifying the Existing Debt to be
refunded, (ii) the proceeds of such New Debt are held in the form of Cash and
Cash Equivalents (free of any Lien except a Lien securing the specified Existing
Debt to be refunded and no other indebtedness or obligations) until such
specified Existing Debt is repaid and (iii) such specified Existing Debt is
repaid within 45 (forty-five) days after the New Debt is incurred.
"Senior Debt Coverage Ratio" means, at any time from and including the 31st
day (the "Relevant Day") after the last day of any fiscal quarter of the Company
to but excluding the 31st day of the following fiscal quarter of the Company,
the ratio of (a) Senior Debt as of the end of such fiscal quarter to (b) EBITDA
Minus Capital Expenditures as of the end of such fiscal quarter.
"Senior Debt Rating" means, at any date, that the senior unsecured
unenhanced long term debt of the Company is rated BBB or better by S&P or Baa2
or better by ▇▇▇▇▇'▇, regardless of whether the Company has any such debt
outstanding.
"Senior Leverage Ratio" means, as of any Determination Date, the ratio of
(a) the difference of (i) Senior Debt minus (ii) Cash and Cash Equivalents in
excess of $50,000,000 (exclusive of any Cash and Cash Equivalents constituting
or acquired with the proceeds of New Debt to the extent the specified Existing
Debt to be Refunded with such New Debt remains outstanding), to (b) Tangible
Capital Funds.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Securities
Exchange Act of 1934.
"Stock Issuance" means any issuance by the Company of, or any conversion of
Subordinated Debt or any other Debt or liability of the Company or any of its
Consolidated Subsidiaries to, common or other capital stock or other equity
securities of the Company.
"Stock Redemptions" means any redemption, purchase, retirement or other
acquisition by the Company of any common or other capital stock or other equity
securities of the Company.
"Subordinated Debt" means, without duplication, (a) all Debt now
outstanding or hereafter created, issued, guaranteed, incurred or assumed by the
Company which is subordinated to payment of principal, premium, if any, and
interest on the Notes by provisions not less favorable in any material respect
to the
MASCOTECH, INC. CREDIT AGREEMENT
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22
holders of the Notes than the provisions set forth on Exhibit O; (b) Debt
evidenced by the Company's 4-1/2% Convertible Subordinated Debentures due 2003,
in the original principal amount of $345,000,000 and (c) Debt hereafter issued
pursuant to the Securities Purchase Agreement; provided, however, that any of
such Debt shall cease to be "Subordinated Debt" upon and to the extent of the
Company's repurchase or redemption of such Debt as permitted hereunder or the
Company's transfer, conveyance, assignment or delivery to any trustee, paying
agent or other fiduciary for the benefit of the holder(s) of such Debt of any
cash, securities or other assets of the Company in payment or on account of, or
as provision for, the principal of such Debt; provided further, however, that
any of such Debt referred to in clauses (b) and (c) of this definition shall
cease to be "Subordinated Debt" upon any amendment or other modification to the
Debentures referred to in such clause (b) evidencing such Debt, relating to the
subordination thereof, unless, in any such case, the provisions of such
Debentures after giving effect to such amendment or modification are not less
favorable in any material respect to the holders of the Notes than the
provisions set forth on Exhibit O.
"Subsidiary" of any Person means (a) any limited partnership (whether now
existing or hereafter organized) of which such Person or another Subsidiary of
such Person is the general partner, (b) any general partnership or limited
liability company (whether now existing or hereafter organized) of which such
Person or one or more of the other Subsidiaries of such Person own at least a
majority of the ownership or membership interests and (c) any corporation
(whether now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency), at the time as of which any determination is being made, is owned,
beneficially and of record, by such Person or by one or more of the other
Subsidiaries of such Person or by any combination thereof. Unless the context
otherwise requires, references to "Subsidiary" or "Subsidiaries" herein refer to
the Company's Subsidiaries.
"Substantially-Owned Consolidated Subsidiary" of any corporation means any
Consolidated Subsidiary of such corporation 90% or more of the shares of capital
stock (or other ownership interests) of which having ordinary power to vote in
elections for the board of directors (or other persons performing similar
functions at the time) are directly or indirectly owned by such corporation.
"Substitute Loan" means any Loan made by a Bank pursuant to Section 5.4.
"Syndicated Eurodollar Rate" means, with respect to any Eurodollar Rate
Syndicated Loan for any Eurodollar Rate Interest Period or portion thereof, the
per annum rate that is equal to the sum of (a) the Applicable Margin, plus (b)
the Eurodollar Base Rate; which Syndicated Eurodollar Rate shall change
simultaneously with any change in such Applicable Margin.
"Syndicated Loan" means any Floating Rate Loan or Fixed Base Rate
Syndicated Loan.
"Syndicated Note" means a promissory note of the Company substantially in
the form of Exhibit A hereto evidencing the obligation of the Company to repay
Syndicated Loans, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Tangible Capital Funds" means, as of any date, the sum of (a) Adjusted Net
Worth, minus (b) the net book value of goodwill (the excess of cost over net
assets of acquired companies) included in the assets of the Company and its
Consolidated Subsidiaries on a consolidated basis, plus (c) the amount of all
Subordinated Debt which by its terms matures at least thirty days after the then
existing Scheduled Expiration Date, plus (d) the Available Masco Corporation
Funding Commitment minus (e) Minority Interest Cash Investments; provided,
however, that for purposes of this definition, no Debt of the type described in
clause (d) of the definition of the term "Debt" shall be included in
Subordinated Debt.
MASCOTECH, INC. CREDIT AGREEMENT
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"Termination Date" means the earlier to occur of (a) the Scheduled
Expiration Date and (b) the date on which the Commitments shall be terminated
pursuant to Section 3.8 or 9.1.
"Total Borrowed Funds" means, as of any date, all indebtedness of the
Company and its Consolidated Subsidiaries for money borrowed, determined on a
consolidated basis in accordance with generally accepted accounting principles,
provided that, for purposes of this definition, if any money borrowed ("Existing
Borrowed Funds") is to be Refunded (as hereinafter defined) with the proceeds of
other money borrowed ("New Borrowed Funds"), the Existing Borrowed Funds to be
so Refunded shall be excluded from Total Borrowed Funds when the New Borrowed
Funds are incurred. For purposes of this definition, Existing Borrowed Funds
are to be "Refunded" by New Borrowed Funds if, and to the extent that, (i) no
later than 5 Business Days after the New Borrowed Funds are incurred, the
Company delivers to the Agent written notice stating that the purpose of such
New Borrowed Funds is to refund Existing Borrowed Funds and specifying the
Existing Borrowed Funds to be refunded, (ii) the proceeds of such New Borrowed
Funds are held in the form of Cash and Cash Equivalents (free of any Lien except
a Lien securing the specified Existing Borrowed Funds to be refunded and no
other indebtedness or obligations) until such specified Existing Borrowed Funds
are repaid and (iii) such specified Existing Borrowed Funds are repaid within 45
days after the New Borrowed Funds are incurred.
"Total Leverage Ratio" means the ratio of (a) Total Borrowed Funds to (b)
Adjusted Net Worth.
"Trimas" means TriMas Corporation, a Delaware corporation.
"Unfunded Benefit Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (a) the present value of all vested nonforfeitable
benefits under such Plan exceeds (b) the fair market value of all Plan assets
allocable to such benefits (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but only to
the extent that such excess represents a potential liability of the Company or
any ERISA Affiliate to the PBGC or any other Person under Title IV of ERISA.
1.2 Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, on a basis consistent, to
the extent required by such principles, with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries filed with the Securities and Exchange Commission on Form 10-K and
delivered to the Banks prior to the Closing Date; provided that, if the Company
notifies the Agent that the Company wishes to amend any covenant in Article VII
to eliminate the effect of any change in generally accepted accounting
principles in the operation of such covenant (or if the Agent notifies the
Company that the Required Banks wish to amend Article VII for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect immediately before
the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Banks. Without limiting
the foregoing, all transfers of receivables shall be recognized as sales, and
not as Debts or Liens, if they would be recognized as sales in accordance with
generally accepted accounting principles, provided that all probable
adjustments in connection with the recourse provisions are accrued, all as more
specifically described in Statement of Financial Accounting Standards No. 125.
1.3 Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Bank", "Banks", "Co-Agent", "Company" and "this Agreement" shall
have the respective meanings ascribed thereto in the introductory paragraph of
this Agreement. Use of the terms "herein", "hereof" and "hereunder" shall be
MASCOTECH, INC. CREDIT AGREEMENT
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deemed references to this Agreement in its entirety and not solely to the
Section or clause in which such term appears. Unless otherwise specified
herein, references to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement.
Except as provided in the definition of Eurodollar Rate Interest Period, if any
payment, report, financial statement, notice or other obligation is due
hereunder on a day which is not a Business Day, then the due date thereof shall
be extended to the next Business Day.
ARTICLE II.
TERMINATION OF EXISTING CREDIT AGREEMENT
2.1 Termination. The Company and the Banks acknowledge and agree that
the Existing Commitment of each Existing Bank is hereby terminated. Each
Existing Bank that is a party hereto shall cancel all Existing Notes held by it
and return them to the Company promptly after all amounts payable thereunder
have been paid in full. Notwithstanding the foregoing, the Company and each of
the Banks acknowledge and agree that each Existing Bid-Option Loan shall
continue with its existing principal amount, interest rate and Interest Period,
except that each Existing Bid-Option Loan shall be deemed a Bid-Option Loan
under this Agreement and shall be governed by the provisions of this Agreement.
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES
3.1 Syndicated Borrowings. Each Bank agrees, for itself only, subject
to the terms and conditions set forth in this Agreement, to make Syndicated
Loans to the Company from time to time from the Closing Date to but excluding
the Termination Date; provided that the aggregate outstanding principal amount
of such Bank's Syndicated Loans shall not at any time exceed the excess of (a)
the amount of its Commitment, over (b) the sum of (i) its Commitment Percentage
of the Letter of Credit Obligations Amount plus (ii) its Commitment Percentage
of the Dollar Equivalent of the aggregate outstanding principal amount of all
Bid-Option Loans made by the Banks. Each Fixed Base Rate Syndicated Borrowing
shall be in an aggregate principal amount of $10,000,000 or any larger multiple
of $5,000,000 and each Floating Rate Borrowing shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $5,000,000; provided
that any such Borrowing may be in the aggregate amount of the unused
Commitments. Each Syndicated Borrowing shall be made by the several Banks
ratably in accordance with their respective Commitment Percentages. Within the
foregoing limits, the Company may borrow Loans from each Bank under this Section
3.1, repay such Loans, prepay such Loans to the extent permitted or required by
this Agreement and reborrow under this Section 3.1. Default by any Bank with
respect to its obligations hereunder shall not excuse any non-performance by any
other Bank, provided that no Bank shall be liable for the non-performance by any
other Bank of its obligations hereunder.
3.2 Notice of Syndicated Borrowings. The Company shall give the Agent
written notice in substantially the form attached hereto as Exhibit C (a "Notice
of Syndicated Borrowing") (a) not later than 12:00 p.m. (Detroit time) on the
Business Day of each Floating Rate Borrowing, and (b) not later than 11:00 a.m.
(Detroit time) on (i) the second Business Day before each CD Rate Borrowing, and
(ii) the third Business Day before each Eurodollar Rate Syndicated Borrowing,
specifying:
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(A) the date of such Borrowing, which shall be a Business
Day,
(B) the aggregate amount of such Borrowing,
(C) whether the Loans comprising such Borrowing are to be
Floating Rate Loans, CD Rate Loans or Eurodollar Rate Syndicated
Loans, and
(D) in the case of each Fixed Base Rate Syndicated
Borrowing, the duration of the Interest Period applicable thereto,
which shall comply with the provisions of the definition of the
applicable Interest Period.
3.3 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement, the Agent agrees to issue, and each Bank further agrees for itself
only to participate in the risk of, Letters of Credit from time to time from the
Closing Date to but excluding the Termination Date; provided that the Letter of
Credit Obligations Amount shall not at any time exceed the lesser of (i)
$20,000,000 and (ii) the excess of (A) the aggregate amount of the Commitments
over (B) the aggregate outstanding principal amount of all Loans. No Letter of
Credit shall have a stated expiry date earlier than 30 days after the date of
its issuance, and no Letter of Credit shall have a stated expiry date or, if by
its terms it is periodically renewable, be subject to being terminated by the
Agent (unless renewal is permitted by the Agent in its sole discretion, in which
case the Agent will not permit renewal to a date beyond that determined in
accordance with the following portion of this sentence), later than the earlier
of (i) the one year anniversary of its issuance (or, if renewable and renewal
has been permitted, the one year anniversary of its last renewal) and (ii) the
fifth Business Day before the Scheduled Expiration Date. Each Letter of Credit
shall be in a minimum amount of $1,000,000. Subject to the terms and conditions
set forth in this Agreement, the Agent shall, on the date any Letter of Credit
is requested to be issued, issue the related Letter of Credit for the pro rata
risk of the Banks. Notwithstanding anything herein to the contrary, the Agent
may decline to issue any Letter of Credit if the beneficiary or the conditions
of drawing are reasonably unacceptable to the Agent, or if the purpose of
issuance is illegal or is in contravention of any law, rule, regulation or
public policy or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority.
(b) The Company shall give the Agent written notice in
substantially the form attached hereto as Exhibit D (a "Request for Letter of
Credit Issuance") not later than 10:00 a.m. (Detroit time) on the fifth Business
Day before each requested Letter of Credit Issuance or such later time as is
acceptable to the Agent.
(c) The Company agrees (i) to pay to the Agent for the account of
the Banks a fee computed at the per annum rate equal to the Applicable Margin of
the maximum amount available to be drawn from time to time under the related
Letter of Credit for the period from and including the date of such Letter of
Credit Issuance to but excluding the stated expiry date of such Letter of
Credit, and (ii) to pay an additional fee to the Agent for its own account
computed at the rate of one-eighth of one percent (1/8 of 1%) per annum of such
maximum amount for such period, such fees with respect to any Letter of Credit
to be paid quarterly in advance commencing with the date of its issuance, based
upon the Applicable Margin in effect at the beginning of each such quarter.
Such fees are nonrefundable and the Company shall not be entitled to any rebate
of any portion thereof if such Letter of Credit does not remain outstanding
through such quarter or for any other reason. The Company further agrees to pay
to the Agent, on demand, such other customary administrative fees, charges and
expenses of the Agent in respect of the issuance, negotiation,
MASCOTECH, INC. CREDIT AGREEMENT
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acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.
(d) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Agent has the sole obligation under this Agreement to issue Letters of Credit
for the risk of the Banks. Upon each Letter of Credit Issuance, each Bank shall
automatically acquire a pro rata risk participation interest in the related
Letter of Credit based on its respective Commitment Percentage. If the Agent
shall honor a draft or other demand for payment presented or made under any
Letter of Credit, the Agent shall provide notice thereof to each Bank on the
date such draft or demand is honored unless the Company shall have satisfied its
reimbursement obligation under subsection (e) of this Section 3.3 by payment to
the Agent on such date. Each Bank, on such date, shall make an amount equal to
its Commitment Percentage of the amount paid by the Agent available in
immediately available funds at the principal office of the Agent for the account
of the Agent. If and to the extent such Bank shall not have made such amount
available to the Agent, such Bank and the Company severally agree to pay to the
Agent forthwith on demand such amount, together with interest thereon for each
day from the date such amount was paid by the Agent until such amount is so made
available to the Agent at (i) in the case of such Bank, the Federal Funds Rate
and (ii) in the case of the Company, the per annum rate equal to the interest
rate applicable during such period to the related Borrowing deemed (or that
could have been deemed) disbursed under subsection (e) of this Section 3.3 in
respect of the reimbursement obligation of the Company. If such Bank shall pay
such amount to the Agent together with such interest, if any, accrued, such
amount so paid shall constitute a Syndicated Loan by such Bank as part of the
Borrowing disbursed in respect of the reimbursement obligation of the Company
under subsection (e) of this Section 3.3 for purposes of this Agreement. The
failure of any Bank to make an amount equal to its Commitment Percentage of any
such amount paid by the Agent available to the Agent shall not relieve any other
Bank of its obligation to make available an amount equal to such other Bank's
Commitment Percentage of such amount, but no Bank shall be responsible for
failure of any other Bank to make its share available to the Agent.
(e)(i) Whether a Letter of Credit was issued for the account of the
Company or any Consolidated Subsidiary of the Company, and without limiting the
reimbursement obligation of such Consolidated Subsidiary, the Company agrees to
pay to the Agent, not later than 3:00 p.m. (Detroit time) on the date on which
the Agent shall honor a draft or other demand for payment presented or made
under such Letter of Credit, an amount equal to the amount paid by the Agent in
respect of such draft or other demand under such Letter of Credit and all
expenses paid or incurred by the Agent relative thereto (the "Reimbursement
Amount"). The Agent shall, on the date of each demand for payment under any
Letter of Credit, give the Company notice thereof and of the amount of the
Company's reimbursement obligation and liability for expenses relative thereto;
provided that the failure of the Agent to give such notice shall not affect the
reimbursement and other obligations of the Company under this Section 3.3.
Unless the Company shall have made such payment to the Agent on such day, upon
each such payment by the Agent, the Company shall be deemed to have elected to
satisfy its reimbursement obligation by a Floating Rate Borrowing in an amount
equal to the amount so paid by the Agent in respect of such draft or other
demand under such Letter of Credit, and the Agent shall be deemed to have
disbursed to the Company, for the account of the Banks, the Floating Rate Loans
comprising such Floating Rate Borrowing, and each Bank shall make its share of
each such Floating Rate Borrowing available to the Agent in accordance with
Section 3.5(b). Such Floating Rate Loans shall be deemed disbursed
notwithstanding any failure to satisfy any conditions for disbursement of any
Loan set forth in Article VIII and, to the extent of the Floating Rate Loans so
disbursed, the reimbursement obligation of the Company under this subsection
(e)(i) shall be deemed satisfied.
(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to the Company
pursuant to Section 9.1(f) or (g)), Floating Rate Loans may not be made by the
Banks as described in Section 3.3(e)(i), then (A) the Company agrees that each
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Reimbursement Amount not paid pursuant to the first sentence of Section
3.3(e)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Floating Rate Loans, and (B) effective on the date each
such Floating Rate Loan would otherwise have been made, each Bank severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default, to the extent of such Bank's Commitment Percentage,
purchase a participating interest in each Reimbursement Amount. Each Bank will
immediately transfer to the Agent, in same day funds, the amount of its
participation. Each Bank shall share on a pro rata basis (calculated by
reference to its Commitment Percentage) in any interest which accrues thereon
and in all repayments thereof. If and to the extent that any Bank shall not
have so made the amount of such participating interest available to the Agent,
such Bank agrees to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Agent until
the date such amount is paid to the Agent, at the Federal Funds Rate.
(f) The reimbursement obligation of the Company under this
Section 3.3 with respect to each Letter of Credit shall be absolute,
unconditional and irrevocable and shall remain in full force and effect until
all such obligations of the Company to the Banks and the Agent with respect to
such Letter of Credit shall have been satisfied, and such obligations of the
Company shall not be affected, modified or impaired upon the happening of any
event, including without limitation, any of the following, whether or not with
notice to, or the consent of, the Company:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other
right which the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), the Agent or any Bank or any
other Person, whether in connection with any of the Letter of Credit Documents,
the transactions contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(v) Payment by the Agent to the beneficiary under any Letter
of Credit against presentation of documents which do not comply with the terms
of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Agent or any Bank or any party to any of the Letter of Credit Documents to
enforce, assert or exercise any right, power or remedy conferred upon the Agent,
any Bank or any such party; or
(vii) Any other event or circumstance that would, in the
absence of this clause, result in the release or discharge by operation of law
or otherwise of the Company from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Company has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to
MASCOTECH, INC. CREDIT AGREEMENT
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the Company against the Agent or any Bank. Nothing in this Section 3.3
shall limit the liability, if any, of the Agent to the Company pursuant to
Section 11.5(c).
3.4 Bid-Option Borrowings.
(a) The Bid-Option. In addition to Syndicated Borrowings that are
made pursuant to Section 3.1, the Company may, as set forth in this Section,
from time to time after the Closing Date to but excluding the Termination Date
request the Banks to offer to make Bid-Option Loans to the Company. Each Bank
may, but shall have no obligation to, make such offers; furthermore, each Bank
may limit the aggregate amount of Bid-Option Loans when quoting rates for more
than one Bid-Option Interest Period in any Bid-Option Quote, provided that such
limitation shall not be less than the minimum amounts required hereunder for
Bid-Option Loans and the Company may choose among the Bid-Option Loans if such
limitation is imposed. The Company may, but shall have no obligation to, accept
any such offers, in the manner set forth in this Section; provided that the
Dollar Equivalent of the aggregate outstanding principal amount of Bid-Option
Loans shall not at any time exceed the lesser of (i) the excess of (A) the
aggregate amount of the Commitments over (B) the sum of (x) the aggregate
outstanding principal amount of Syndicated Loans plus (y) the Letter of Credit
Obligations Amount, or (ii) fifty percent (50%) of the aggregate amount of the
Commitments (as the same may be reduced in accordance with the terms of this
Agreement during any applicable Bid-Option Interest Period); and provided,
further, that the Dollar Equivalent of the aggregate outstanding principal
amount of Foreign Currency Bid-Option Loans shall not exceed $50,000,000.
(b) Bid-Option Quote Requests. When the Company wishes to
request offers to make Bid-Option Loans under this Section, it shall transmit to
the Agent by telex or telecopy a request substantially in the form attached
hereto as Exhibit E (a "Bid-Option Quote Request") so as to be received no later
than 10:00 a.m. (Detroit time) on (i) the Business Day next preceding the date
of the Borrowing proposed therein, in the case of a Bid-Option Auction for
Absolute Rate Dollar Bid-Option Loans, (ii) the fifth Business Day next
preceding the date of the Borrowing in the case of a Bid-Option Auction for
Eurodollar Rate Dollar Bid-Option Loans, or (iii) the fourth Business Day prior
to the date of Borrowing proposed therein, in the case of a Bid-Option Auction
for Foreign Currency Bid-Option Loans, specifying:
(A) the proposed date of the Borrowing, which shall be a Business
Day;
(B) whether the Borrowing is to be an Absolute Rate Dollar
Bid-Option Borrowing, a Eurodollar Rate Dollar Bid-Option
Borrowing or a Foreign Currency Bid-Option Borrowing and, if a
Foreign Currency Bid-Option, the desired Foreign Currency;
(C) the aggregate amount of such Borrowing, which shall be (A)
$25,000,000 or a larger multiple of $5,000,000, in the case of
a Dollar Bid-Option Borrowing, or (B) not less than the Dollar
Equivalent of $5,000,000, in the case of a Foreign Currency
Bid-Option Borrowing; and
(D) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of the applicable
Interest Period.
The Company may request offers to make Bid-Option Loans for more than one
Interest Period in a single Bid-Option Quote Request. The Company may not
request offers to make Bid-Option Loans in more than
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one currency in any Bid-Option Quote Request and may not make more than
five Bid-Option Borrowings during any month.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of a
Bid-Option Quote Request, the Agent shall send to the Banks by telex or telecopy
(or telephone promptly confirmed by telex or telecopy) an Invitation for
Bid-Option Quotes substantially in the form attached hereto as Exhibit F, which
shall constitute an invitation by the Company to each Bank to submit Bid-Option
Quotes offering to make the Bid-Option Loans to which such Bid-Option Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Bid-Option Quotes. (i) Each Bank
may submit a Bid-Option Quote containing an offer or offers to make Bid-Option
Loans in response to any Invitation for Bid-Option Quotes. Each Bid-Option
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Agent by telex or telecopy (or by telephone promptly confirmed
by telex or telecopy) not later than (A) 9:00 a.m. (Detroit time) on the
proposed date of the Borrowing, in the case of a Bid-Option Auction for Absolute
Rate Dollar Bid-Option Loans, (B) 10:00 a.m. (Detroit time) on the fourth
Business Day prior to the proposed date of the Borrowing, in the case of a
Bid-Option Auction for Eurodollar Rate Dollar Bid-Option Loans, or (C) 2:00 p.m.
(Detroit time) on the third Business Day prior to the proposed date of the
Borrowing, in the case of a Bid-Option Auction for Foreign Currency Bid-Option
Loans; provided that Bid-Option Quotes submitted by the Agent (or any Affiliate
of the Agent) in its capacity as a Bank may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies the Company of the terms of
the offer or offers contained therein not later than (A) 8:45 a.m. (Detroit
time) on the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Absolute Rate Dollar Bid-Option Loans, (B) 9:45 a.m. (Detroit time) on the
fourth Business Day prior to the proposed date of the Borrowing, in the case of
a Bid-Option Auction for Eurodollar Rate Dollar Bid-Option Loans, or (C) 1:00
p.m. (Detroit time) on the third Business Day prior to the proposed date of the
Borrowing in the case of a Bid-Option Auction for Foreign Currency Bid-Option
Loans. Subject to Section 3.4(e), Article VIII and Article IX, any Bid-Option
Quote so made shall be irrevocable except with the written consent of the Agent
given on the instructions of the Company.
(ii) Each Bid-Option Quote shall be in substantially the
form attached hereto as Exhibit G and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) whether the Bid-Option Loans for which the offers are made are
Absolute Rate Dollar Bid-Option Loans, Eurodollar Rate Dollar
Bid-Option Loans or Foreign Currency Bid-Option Loans, which
must match the type of Borrowing stated in the related
Invitation for Bid-Option Quotes;
(C) the principal amount of the Bid-Option Loan for which each
such offer is being made, the Dollar Equivalent of which (1)
may, together with the Dollar Equivalent of the aggregate
outstanding principal amount of all other Loans made by the
quoting Bank, exceed the amount of the Commitment of the
quoting Bank, (2) must be (y) in the case of any Dollar
Bid-Option Loan, $5,000,000 or a larger multiple thereof, or
(z) in the case of any Foreign Currency Bid-Option Loan, not
less than $1,000,000, and (3) may not exceed the Dollar
Equivalent of the aggregate principal
MASCOTECH, INC. CREDIT AGREEMENT
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amount of the Bid-Option Borrowing specified in the
related Invitation for Bid-Option Quotes;
(D) in the case of a Bid-Option Auction for Absolute Rate Dollar
Bid-Option Loans or Foreign Currency Bid-Option Loans, the
rate of interest per annum (rounded up to the nearest
1/10,000th of 1%) (the "Bid-Option Absolute Rate") offered for
each such Bid-Option Loan;
(E) in the case of a Bid-Option Auction for Eurodollar Rate Dollar
Bid-Option Loans, the applicable margin, which may be positive
or negative (the "Bid-Option Eurodollar Rate Margin"),
expressed as a percentage (rounded to the nearest 1/10,000th
of 1%), offered for each such Bid-Option Loan;
(F) the Interest Period(s) for which each such Bid-Option Absolute
Rate or Bid-Option Eurodollar Rate Margin, as the case may be,
is offered; and
(G) the identity of the quoting Bank.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit G hereto or does
not specify all of the information required by subsection
(d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Bid-Option Quotes; or
(D) arrives after the time set forth in subsection (d)(i);
provided that a Bid-Option Quote shall not be disregarded pursuant to clause
(B) or (C) above solely because it indicates that an allocation that might
otherwise be made to it pursuant to Section 3.4(g) would be unacceptable.
(e) Notice to Company. The Agent shall promptly notify the
Company of the terms (i) of any Bid-Option Quote submitted by a Bank that is in
accordance with subsection (d) of this Section and (ii) of any Bid-Option Quote
that amends, modifies or is otherwise inconsistent with a previous Bid-Option
Quote submitted by such Bank with respect to the same Bid-Option Quote Request.
Any such subsequent Bid-Option Quote shall be disregarded by the Agent unless
such subsequent Bid-Option Quote is submitted solely to correct a manifest error
in such former Bid-Option Quote. The Agent'sEnotice to the Company shall
specify (i) the Dollar Equivalent of the aggregate principal amount of
Bid-Option Loans for which offers have been received for each Interest Period
specified in the related Bid-Option Quote Request and (ii) the respective Dollar
Equivalent of the principal amounts and respective Bid-Option Absolute Rates or
Bid-Option Eurodollar Rate Margins, as the case may be, so offered.
MASCOTECH, INC. CREDIT AGREEMENT
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(f) Acceptance and Notice by Company. Not later than 10:00 a.m.
(Detroit time) on (i) the proposed date of the Borrowing, in the case of a
Bid-Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii) the third
Business Day prior to the proposed date of the Borrowing, in the case of a
Bid-Option Auction for Eurodollar Rate Dollar Bid-Option Loans, or (iii) the
second Business Day prior to the proposed date of the Borrowing, in the case of
a Bid-Option Auction for Foreign Currency Bid-Option Loans, the Company shall
notify the Agent of its acceptance or non-acceptance of the offers so notified
to it pursuant to subsection (e) of this Section 3.3. In the case of
acceptance, such notice (a "Notice of Bid-Option Borrowing") shall specify the
aggregate principal amount of accepted offers for the applicable Interest
Period(s). The Company may accept any Bid-Option Quote in whole or in part;
provided that:
(A) the Dollar Equivalent of the aggregate principal amount of
each Bid-Option Borrowing may not exceed the applicable amount
set forth in the related Bid-Option Quote Request;
(B) the Dollar Equivalent of the aggregate principal amount of
each Bid-Option Borrowing must be (1) in the case of Dollar
Bid-Option Borrowings, $25,000,000 or a larger multiple of
$5,000,000, unless the aggregate amount of the related
Bid-Option Loans for which Bid-Option Quotes were
received is less than $25,000,000, in which case the aggregate
principal amount of the Dollar Bid-Option Borrowing may be any
amount less than $25,000,000, and (2) in the case of Foreign
Currency Bid-Option Loans, not less than $5,000,000 (or, if
less, the aggregate amount of the related Bid-Option Loans for
which Bid-Option Quotes were received);
(C) acceptance of offers may only be made on the basis of
ascending Bid-Option Absolute Rates or Bid-Option Eurodollar
Rate Margins, as the case may be; and
(D) the Company may not accept any offer that is described in
clause (iii) of subsection (d) of this Section or that
otherwise fails to comply with the requirements of this
Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Bid-Option Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as nearly as possible
(in such multiples, not greater than the Dollar Equivalent of $500,000, as the
Agent may deem appropriate) in proportion to the aggregate principal amount of
such offers (excluding any Bank that has indicated in its offer that an
allocation which otherwise would be made to it is unacceptable). Determinations
by the Agent of the amounts of Bid-Option Loans shall be conclusive in the
absence of manifest error.
3.5 Notice to Banks; Funding of Loans. (a) Upon receipt of a Notice
of Borrowing or Request for Letter of Credit Issuance, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share, if any, of
such Borrowing or the related Letter of Credit risk, as the case may be. A
Notice of Borrowing or Request for Letter of Credit Issuance shall be
irrevocable by the Company once the Agent begins notifying any Bank of the
contents thereof.
MASCOTECH, INC. CREDIT AGREEMENT
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(b) Each Bank, not later than 1:00 p.m. (Detroit time) on the
date any Borrowing is requested to be made, other than a Foreign Currency
Bid-Option Borrowing, shall (except as provided in subsection (d) of this
Section 3.5) make its share, if any, of such Borrowing available to the Agent in
immediately available funds, at the Agent'sEaddress specified in or pursuant to
Section 11.2, for disbursement to the Company. Unless the Agent determines that
any applicable condition specified in Article VIII has not been satisfied, the
Agent will make funds actually so received from the Banks available to the
Company at the Agent's aforesaid address. Unless the Agent shall have received
notice from any Bank prior to the date such Borrowing is requested to be made
that such Bank will not make available to the Agent such Bank's share of such
Borrowing, the Agent may assume that such Bank has made such share available to
the Agent on the date such Borrowing is requested to be made in accordance with
this Section 3.5. If and to the extent such Bank shall not have so made such
share available to the Agent, the Agent may (but shall not be
obligated to) make such amount available to the Company, and such Bank and the
Company severally agree to pay to the Agent forthwith on demand such amount,
together with interest thereon for each day from the date such amount is made
available to the Company by the Agent until the date such amount is repaid to
the Agent at (i) in the case of such Bank, the Federal Funds Rate and (ii) in
the case of the Company, a rate per annum equal to the interest rate applicable
to such Borrowing during such period. If such Bank shall pay such amount to
the Agent together with interest, such amount so paid shall constitute a Loan
by such Bank as a part of the related Borrowing for purposes of this Agreement.
The failure of any Bank to make its share of any Borrowing available to the
Agent shall not relieve any other Bank of its obligation to make available to
the Agent its share, if any, of such Borrowing on the date such Borrowing is
requested to be made, but no Bank shall be responsible for failure of any other
Bank to make such share available to the Agent on the date of such Borrowing.
(c) Each Bank, not later than 11:00 a.m. (Detroit time) on the
date any Foreign Currency Bid-Option Borrowing is requested to be made shall
(except as provided in subsection (d) of this Section 3.5) make its share, if
any, of such Borrowing available to the Company by depositing the proceeds
thereof in an account maintained and designated by the Company at an office or
branch of such Bank (or of an Affiliate of such Bank) located in the principal
financial center of the country issuing the Foreign Currency in which such
Borrowing is denominated or, if neither such Bank nor any Affiliate of such Bank
has an office or branch in such financial center, at such Bank's Eurodollar
Lending Office or Domestic Lending Office as selected by such Bank, or by such
other means requested by the Company and acceptable to such Bank. Promptly upon
any such disbursement of a Foreign Currency Bid-Option Loan, the Bank making
such Loan shall give written notice to the Agent by telex or telecopy of the
making of such Loan, which notice shall be substantially in the form attached
hereto as Exhibit H.
(d) If any Bank is to make a new Syndicated Loan or Dollar
Bid-Option Loan hereunder on a day on which the Company is to repay all or any
part of an outstanding Syndicated Loan or Dollar Bid-Option Loan from such Bank,
or if any Bank is to make a new Foreign Currency Bid-Option Loan hereunder on a
day on which the Company is to repay all or any part of an outstanding Foreign
Currency Bid-Option Loan of the same Foreign Currency from such Bank, such Bank
shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference, if any, between the amount of such new Loan and
the amount being repaid shall (i) be made available by such Bank to the Agent or
the Company, as provided in subsection (b) or (c) of this Section 3.5 or (ii) be
remitted by the Company to the Agent or such Bank as provided in Section 4.4, as
the case may be. Except as provided in the first sentence of this Section
3.5(d), no Bank shall apply the proceeds of any Loan, whether a Foreign Currency
Bid-Option Loan or other type of Loan, to repay all or any part of an
outstanding Foreign Currency Bid-Option Loan, the entire amount of which shall,
unless repaid by the application of the proceeds of a new Foreign Currency
Bid-Option Loan of the same Foreign Currency as permitted in the first sentence
of this Section 3.5(d), be remitted in full by the Company to the Banks when due
as provided in Section 4.4.
MASCOTECH, INC. CREDIT AGREEMENT
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3.6 The Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a
single Syndicated Note payable to the order of such Bank in an amount equal to
the aggregate unpaid principal amount of such Bank's Syndicated Loans.
(b) The Bid-Option Loans of each Bank shall be evidenced by a
single Bid-Option Note payable to the order of such Bank in an amount equal to
the Dollar Equivalent of the aggregate unpaid principal amount of such Bank's
Bid-Option Loans.
(c) Upon receipt of each Bank's Notes pursuant to Section 8.2,
the Agent shall forward such Notes to such Bank. Each Bank shall record on its
books and records, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the date of
disbursement, amount and maturity of each Loan made by it, the interest rate and
Interest Period applicable thereto and the date and amount of each payment of
principal made by the Company with respect thereto. Any notations made by such
Bank shall be prima facie evidence of the matters so recorded or endorsed. Each
Bank is hereby irrevocably authorized by the Company to make such records, so to
endorse schedules to its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required. Failure by any Bank to
make such records or so to endorse the schedules to its Notes, or any error in
recording or so endorsing any such information, shall not affect the Company's
liability hereunder or under any Note.
3.7 Certain Fees.
(a) Commitment Fees. [Intentionally Omitted]
(b) Facility Fee. The Company will pay to the Agent for the
respective accounts of the Banks a facility fee, for each calendar quarter or
portion thereof from the Closing Date to but not including the Termination Date,
on the amount of each Bank's Commitment, whether used or unused, during such
period, at a rate equal to the Applicable Margin for Facility Fees. All accrued
facility fees hereunder shall be payable in arrears with respect to each
calendar quarter or portion thereof not later than the tenth day after the end
of each March, June, September and December, commencing with the first such
calendar quarter-end after the Closing Date, and on the Termination Date.
Promptly upon receipt of such facility fees for any calendar quarter for portion
thereof, the Agent shall distribute such facility fees to the Banks ratably in
accordance with their respective Commitment Percentages.
(c) Closing Fee. The Company will further pay to the Agent for
the respective accounts of the Banks such amount as may be agreed upon between
the Company and the Banks. The closing fees shall be payable on or before the
Closing Date. Promptly upon its receipt thereof, the Agent shall distribute
such fees to the Banks.
(d) Agent's Fees. The Company will further pay to the Agent fees for its
own account for its services as Agent under this Agreement in such amounts and
at such times as may from time to time be agreed upon between the Company and
the Agent.
MASCOTECH, INC. CREDIT AGREEMENT
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3.8 Termination or Reduction of Commitments.
(a) Optional Termination or Reduction. Subject to Section 5.5,
the Company shall have the right at any time and from time to time, upon five
Business Days' prior written notice to the Agent, to terminate or
proportionately reduce the amount of the Commitments, provided, that (i) any
partial reduction of the amount of the Commitments shall be in the amount of
$10,000,000 or a larger multiple thereof, (ii) no such reduction shall be
permitted with respect to any portion of the Commitments not in excess of the
sum of the Dollar Equivalent of the aggregate outstanding principal amount of
all Loans, plus the Letter of Credit Obligations Amount, plus the Dollar
Equivalent of the aggregate amount of all Borrowings for which a Notice of
Borrowing is then pending, plus the aggregate amount of all Letters of Credit
for which a Request for Letter of Credit Issuance is then pending, (iii) the
Commitments may not be terminated if any Loans or Letters of Credit are then
outstanding or any Notice of Borrowing or Request for Letter of Credit Issuance
is then pending and (iv) no such termination or reduction shall be permitted if,
after giving effect thereto, the Dollar Equivalent of the aggregate principal
amount of the outstanding Bid-Option Loans would exceed fifty percent (50%) of
the aggregate amount of the Commitments. The Commitments or any portion thereof
terminated or reduced pursuant to this Section may not be reinstated. The
accrued facility fees with respect to the terminated Commitments or the amount
of any reduction therein shall be payable on the effective date of such notice.
Upon receipt of any notice from the Company pursuant to this Section, the Agent
shall promptly notify each Bank of the contents thereof and of such Bank's share
of any reduction of the Commitments. Each such notice shall be irrevocable by
the Company once the Agent begins notifying any Bank of the contents thereof.
(b) [intentionally omitted].
(c) Section 4.2(d) Compliance. On the effective date of any
reduction or termination of the Commitments under this Section 3.8, the Company
shall make such payments as may be required under Section 4.2(d) as a result
thereof.
3.9 Mandatory Termination of Commitments. The Commitments shall
terminate on the Termination Date.
3.10 Extension of Scheduled Expiration Date. (a) The Company may
request that the Banks extend the Scheduled Expiration Date from February 28,
2002 to February 28, 2003. No such request shall be effective unless it is made
in writing by the Company at any time after February 28, 1999.
(b)(i) Upon receipt of any such written request, the Agent shall
promptly distribute a copy thereof to each Bank.
(ii) Each Bank shall have the time specified in such request to agree
or refuse to extend the Scheduled Expiration Date, which agreement or refusal,
as the case may be, must be communicated to the Agent in writing; provided, that
(A) the failure of any Bank so to communicate its agreement so to extend the
Scheduled Expiration Date shall be deemed to be such Bank's refusal so to
extend, (B) any written communication of any Bank of its agreement so to extend
shall be irrevocable and (C) any agreement of any Bank so to extend communicated
to the Agent subject to any qualifications or conditions shall be deemed to be a
refusal so to extend the Scheduled Expiration Date.
(iii) The Agent shall promptly notify the Company which Banks have
consented to such written request (a "Consenting Bank"). Any failure by the
Agent to so notify the Company shall not be deemed a consent to the Company's
request.
(iv) Each Bank that elects not to extend the requested Scheduled
Expiration Date or
MASCOTECH, INC. CREDIT AGREEMENT
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fails to so notify the Agent of such consent (a "Non-Consenting Bank")
hereby agrees that if any other Bank or financial institution acceptable to the
Company and the Agent offers to purchase such Non-Consenting Bank's
Commitment(s) for a purchase price equal to the sum of all amounts then owing
with respect to the Loans and all other amounts accrued for the account of such
Non-Consenting Bank and any amounts which may become owing as a result of such
purchase, such Non-Consenting Bank will, promptly or upon the existing
Scheduled Expiration Date for such Non-Consenting Bank, as elected by the
Company, assign, sell and transfer all of its right, title and obligations with
respect to the foregoing to such other Bank or financial institution pursuant
to and on the terms specified in the form of Assignment and Acceptance and
Section 11.6.
(v) Notwithstanding anything herein to the contrary, the
Scheduled Expiration Date will not be extended if the aggregate Commitments of
each Consenting Bank plus the additional Commitments of each Bank or other
financial institution replacing any Non-Consenting Bank pursuant to clause (iv)
above and agreeing to the request does not equal or exceed 75% of the then
existing aggregate Commitments. If the Scheduled Expiration Date is extended
hereunder, it will not be extended for the Non-Consenting Banks whose
Commitments are not purchased pursuant to clause (iv) above, and each such
Non-Consenting Bank's Commitment shall remain in effect and not be terminated
until the Scheduled Expiration Date that is then in effect.
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC
4.1 Scheduled Principal Payments. Unless earlier payment is required
under this Agreement, or made pursuant to Section 4.2, the Company shall pay the
entire principal amount of each Loan on the last day of the Interest Period
applicable to such Loan.
4.2 Prepayments of Principal. The following provisions apply in
respect of prepayment of the Loans by the Company:
(a) The Company may prepay Floating Rate Loans in whole or in part on
any Business Day in amounts aggregating $5,000,000 or any larger multiple of
$5,000,000 (unless such prepayment would cause the aggregate outstanding
principal amount of Floating Rate Loans to be less than $5,000,000, in which
event prepayment may only be made in an amount equal to the entire outstanding
principal amount of Floating Rate Loans), by paying the principal amount being
prepaid together with accrued interest thereon to the date of prepayment. Each
prepayment in part of such Loans shall be applied to such Loans of the Banks
ratably in accordance with their respective shares of the aggregate outstanding
principal amount of the Floating Rate Loans.
(b) The Company may, upon at least three Business Days' notice to the
Agent, prepay any Fixed Base Rate Syndicated Borrowing in whole or in part on
any Business Day in the amount of $10,000,000 or any larger multiple of
$5,000,000 (unless such prepayment would cause the aggregate outstanding
principal amount of such Fixed Base Rate Syndicated Borrowing to be less than
$10,000,000, in which event prepayment may only be made in an amount equal to
the outstanding unpaid principal amount of such Fixed Base Rate Syndicated
Borrowing), by paying the principal amount being prepaid together with accrued
interest thereon to the date of prepayment; provided, however, that the Company
shall compensate the Banks pursuant to Section 5.5 for any losses or expenses
incurred as a result thereof. Each prepayment in part of any Fixed Base Rate
Syndicated Borrowing shall be applied to the Fixed Base Rate Syndicated Loans
comprising such Borrowing of the Banks ratably in accordance with their
respective shares of the aggregate outstanding principal amount of such Loans.
MASCOTECH, INC. CREDIT AGREEMENT
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(c) Unless otherwise required by this Agreement, the Company may not
prepay any Bid-Option Loan in whole or in part without the consent of the Bank
that made such Bid-Option Loan.
(d) Notwithstanding SectionE4.2(a), (b) and (c), if on any date:
(i) the sum of (A) the Dollar Equivalent of the aggregate
outstanding principal amount of Loans plus (B) the Letter of
Credit Obligations Amount exceeds the aggregate amount of the
Commitments; or
(ii) the Dollar Equivalent of the aggregate outstanding principal
amount of Bid-Option Loans exceeds fifty percent (50%) of the
Commitments; or
(iii) the Dollar Equivalent of the aggregate outstanding
principal amount of Foreign Currency Bid-Option Loans exceeds
$50,000,000;
then the Company shall pay forthwith the principal amount of such excess,
together with accrued interest thereon to the date of payment; provided,
however, that the Company shall compensate the Banks pursuant to Section 5.5
for any losses or expenses incurred as a result thereof; and provided further,
however, that (A) no such payment otherwise required under clause (i) of this
Section 4.2(d) solely because of currency exchange rate fluctuations affecting
the Dollar Equivalent of the aggregate outstanding principal amount of Foreign
Currency Bid-Option Loans shall be required unless such payment is due on a
date when a payment of principal of any Loan is otherwise due hereunder, and
(B) notwithstanding clause (A) of this proviso, no such payment otherwise
required under subsection (ii) or (iii) of this Section 4.2(d) shall be
required if due solely because of currency exchange rate fluctuations affecting
the Dollar Equivalent of the aggregate outstanding principal amount of Foreign
Currency Bid-Option Loans since the last date on which any of such Foreign
Currency Bid-Option Loans were made.
(e) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's share (in accordance with Section 4.4) of such prepayment. Each such
notice shall be irrevocable by the Company once the Agent begins notifying any
Bank of the contents thereof.
4.3 Interest Payments. The Company shall pay interest to the Banks on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such Loan is paid in full, on each Interest Payment Date
and at maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, at the following rates per annum (subject, however, to the
provisions of Section 11.12):
(a) With respect to each Floating Rate Loan, at the Floating Rate.
(b) With respect to each CD Rate Loan, at the CD Rate, provided that if
any CD Rate Loan or any portion thereof shall, as a result of clause (b) of the
definition of CD Rate Interest Period, have an Interest Period of less than
thirty (30) days, such CD Rate Loan or portion thereof shall bear interest
during such Interest Period at the Floating Rate.
(c) With respect to each Eurodollar Rate Syndicated Loan, the
Syndicated Eurodollar Rate, provided that if any Eurodollar Rate Syndicated Loan
or any portion thereof shall, as a result of clause (c) of the definition of
Eurodollar Rate Interest Period, have an Interest Period of less than one month,
such Loan or portion thereof shall bear interest during such Interest Period at
the Floating Rate.
MASCOTECH, INC. CREDIT AGREEMENT
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(d) With respect to each Eurodollar Rate Dollar Bid-Option Loan, the
Bid-Option Eurodollar Rate, provided that if any Eurodollar Rate Bid-Option Loan
or any portion thereof shall, as a result of clause (c) of the definition of
Eurodollar Rate Interest Period, have an Interest Period of less than one month,
such Loan or portion thereof shall bear interest during such Interest Period at
the Floating Rate.
(e) With respect to each Absolute Rate Dollar Bid-Option Loan and
Foreign Currency Bid-Option Loan, the Bid-Option Absolute Rate quoted for such
Loan by the Bank making such Loan.
Notwithstanding the foregoing subsections (a) through (e), the Company shall
(subject to the provisions of Section 11.12) pay interest on demand at the
Overdue Rate on the outstanding principal amount of any Loan and any other
amount payable by the Company hereunder (other than interest) which is not paid
in full when due (whether at stated maturity, by acceleration or otherwise) for
the period commencing on the due date thereof until the same is paid in full.
4.4 Payment Procedures.
(a) All payments of any facility fees, closing fees, Letter of
Credit fees, Agent'sEfees, or other fees hereunder and of principal of, and
interest on, the Loans, other than Foreign Currency Bid-Option Loans, and of
reimbursement obligations in respect of Letters of Credit shall be made in
Dollars and in funds immediately available at the Agent'sEprincipal office in
Detroit, Michigan not later than 1:00 p.m. (Detroit time) on the date on which
such payment shall become due. All payments of principal of, and interest on,
the Foreign Currency Bid-Option Loans shall be made in the currencies in which
such Loans are denominated and in funds immediately available, freely
transferable and cleared at the office or branch from which the Loan was made
under Section 3.5(c) not later than 3:00 p.m. local time on the date on which
such payment shall become due. Promptly upon receipt of any payment of
principal of the Foreign Currency Bid-Option Loans the Bank receiving such
payment shall give written notice to the Agent by telex or telecopy of the
receipt of such payment, which notice shall be substantially in the form
attached hereto as ExhibitEI. Whenever any payment of principal of, or interest
on, the Loans or of any fee shall be due on a day which is not a Business Day,
the date for payment thereof shall be extended to the next succeeding Business
Day (unless as a result thereof, in respect of Eurodollar Rate Loans, such date
would fall in the next calendar month, in which case it shall be advanced to the
next preceding Business Day) and, in the case of a payment of principal,
interest thereon shall be payable for any such extended time.
(b) Payments of principal of or interest on Existing Loans shall
be promptly distributed by the Existing Agent to each Existing Bank ratably in
proportion to each Existing Bank's Existing Commitment. Payments of principal
of Syndicated Loans that comprise a Syndicated Borrowing, including any
Substitute Loan made by a Bank as part of any Fixed Base Rate Syndicated
Borrowing, shall be promptly distributed by the Agent to the Banks that made
such Syndicated Loans ratably in proportion to their respective shares of the
outstanding principal amount of such Syndicated Borrowing. Payments of interest
on Syndicated Loans that comprise a Syndicated Borrowing, including any
Substitute Loan made by a Bank as part of any Fixed Base Rate Syndicated
Borrowing, shall be promptly distributed by the Agent to the Banks that made
such Syndicated Loans so that each such Bank receives a portion of such payment
equal to the amount of interest then owing to such Bank on such Loans multiplied
by a fraction, the denominator of which is the total amount of interest then
owing to all such Banks on such Loans and the numerator of which is the amount
of such payment. Payments of principal of or interest on any Dollar Bid-Option
Loans that comprise a Dollar Bid-Option Borrowing shall be promptly distributed
by the Agent to the Banks that made such Dollar Bid-Option Loans ratably in
accordance with their respective Dollar Bid-Option Percentages.
(c) During any period when Dollar Bid-Option Loans are
outstanding, if the Agent cannot reasonably determine whether a particular
payment received by the Agent from the Company was
MASCOTECH, INC. CREDIT AGREEMENT
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intended to be applied to the principal of or interest on one or more
Dollar Bid-Option Borrowings or to the principal of or interest on Syndicated
Borrowings, or if the amount of any payment by the Company is insufficient to
pay all amounts then due and payable with respect to Dollar Bid-Option Loans
and Syndicated Loans (including Substitute Loans), the Agent shall first
apportion such payment between the Dollar Bid-Option Loans and the Syndicated
Loans (including Substitute Loans) (i) if such payment is of principal, ratably
in accordance with the aggregate principal amount of each such type of Loans on
which payment is then due, and (ii) if such payment is of interest, ratably in
accordance with the aggregate amount of interest that is then due on each
such type of Loans. After such apportionment, (i) the Agent shall distribute
the portion of the payment received and allocated to the Syndicated Loans
(including Substitute Loans) to the Banks as provided for payments of principal
of or interest on, as the case may be, Syndicated Loans under Section 4.4(b),
and (ii) the portion of the payment received and allocated to the Dollar
Bid-Option Loans on which a payment is then due shall first be allocated among
the different Dollar Bid-Option Borrowings of which such Dollar Bid-Option
Loans are a part (A) if such payment is of principal, ratably in accordance
with the aggregate principal amount of each such Dollar Bid-Option Borrowing,
and (B) if such payment is of interest, ratably in accordance with the
aggregate amount of interest that is then due on each such Dollar Bid-Option
Borrowing. After such allocation, the Agent shall distribute the amount
allocated to each Dollar Bid-Option Borrowing to the Banks that made the Dollar
Bid-Option Loans comprising such Dollar Bid-Option Borrowing ratably in
accordance with their respective Dollar Bid-Option Percentages.
(d) Any prepayments of Bid-Option Loans made under Section 4.2(d)
may be applied to any one or more Bid-Option Borrowings as the Company may
select; provided that such payments shall be applied by the Agent, in the case
of Dollar Bid-Option Loans, or made directly by the Company, in the case of
Foreign Currency Bid-Option Loans, to the Banks participating in any such
Bid-Option Borrowing ratably in accordance with their respective Dollar
Bid-Option Percentages or Foreign Currency Bid-Option Percentages, as the case
may be.
4.5 Computation of Interest and Fees. Facility fees, Agent fees and
Letter of Credit fees, and interest on the Floating Rate Loans and other amounts
due hereunder, other than Fixed Rate Loans, shall be computed on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. Interest
on the Fixed Rate Loans shall be computed on the basis of a year of 360 days and
actual days elapsed.
4.6 No Setoff or Deduction. All payments of principal of and interest
on the Loans and other amounts payable by the Company hereunder shall be made by
the Company without setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority.
4.7 Other Provisions Applicable to Foreign Currency Bid-Option Loans.
Foreign Currency Bid-Option Loans will be made by any Bank, if at all, in the
context of an international transaction, and the specification of payment in the
related Foreign Currency at a specific place pursuant to this Agreement is of
the essence. Such Foreign Currency shall be the currency of account and payment
of such Loans under this Agreement and the Bid-Option Notes. Notwithstanding
anything in this Agreement, the obligation of the Company in respect of such
Loans shall not be discharged by an amount paid in any other currency or at
another place, whether pursuant to a judgment or otherwise, to the extent the
amount so paid, on prompt conversion into the applicable Foreign Currency and
transfer to such Bank under normal banking procedure, does not yield the amount
of such Foreign Currency due under this Agreement and the Bid-Option Notes. In
the event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in payment of the amount of such
Foreign Currency due under this Agreement and the Bid-Option Notes, such Bank
shall have an independent cause of action against the Company for the currency
deficit.
MASCOTECH, INC. CREDIT AGREEMENT
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ARTICLE V.
CHANGE IN CIRCUMSTANCES
5.1 Impossibility; Interest Rate Inadequate or Unfair. (a) If before
the beginning of any Eurodollar Rate Interest Period or any CD Rate Interest
Period:
(i) the Agent is advised by either Reference Bank that deposits
in Dollars (in the applicable amounts) are not being offered to
such Reference Bank in the relevant market for such Eurodollar
Rate Interest Period or CD Rate Interest Period, as the case may
be, or
(ii) the Required Banks advise the Agent that the
Eurodollar Base Rate or the CD Base Rate will not adequately and
fairly reflect the cost to such Banks of maintaining, making or
funding, for such Eurodollar Rate Interest Period or CD Rate
Interest Period, Eurodollar Rate Loans or CD Rate Loans, as the
case may be, to which such Eurodollar Rate Interest Period or CD
Rate Interest Period applies,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, the obligations, if any, of the Banks
to make Eurodollar Rate Loans or CD Rate Loans, as the case may be, shall be
suspended. In the case of Eurodollar Rate Loans, unless the Company notifies
the Agent (i) not later than 11:00 a.m. (Detroit time) on the second Business
Day before the beginning of such Eurodollar Rate Interest Period that the
Company elects that the Borrowing shall be a CD Rate Borrowing or (ii) not
later than 3:00 p.m. (Detroit time) on the Business Day before the beginning of
such Eurodollar Rate Interest Period that the Company elects not to borrow on
such date, such Borrowing shall, subject to the provisions of Section 8.1, be a
Floating Rate Borrowing. In the case of CD Rate Loans, unless the Company
notifies the Agent not later than 3:00 p.m. (Detroit time) on the first
Business Day before the beginning of such CD Rate Interest Period that the
Company elects not to borrow on such date, such Borrowing shall, subject to the
provisions of Section 8.1, be a Floating Rate Borrowing. Promptly after the
Agent receives any such notice from the Company under this Section 5.1(a), the
Agent shall notify each Bank of the contents thereof. Any such notice from the
Company shall be irrevocable once the Agent begins notifying any Bank of the
contents thereof.
(b) If deposits in Dollars (in the applicable amounts) are not
being offered to a Reference Bank in the relevant market for any Eurodollar Rate
Interest Period or CD Rate Interest Period, by reason of circumstances affecting
such Reference Bank and not affecting the London or Nassau interbank market or
the United States market for certificates of deposit, as the case may be,
generally, the Agent shall, in consultation with the Company and with the
consent of the Required Banks, appoint another Bank to act as a Reference Bank
hereunder.
5.2 Illegality. If, after the date of this Agreement, the introduction
of, or any change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof or compliance by any
Bank (or its Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such authority shall make it unlawful or
impossible for such Bank (or its Applicable Lending Office) to honor its
binding legal obligations, if any, hereunder to make, maintain or fund any type
of Fixed Rate Loans, such Bank shall so notify the Agent, and the Agent shall
forthwith give notice thereof to the Company, whereupon until such Bank
notifies the Agent that the circumstances giving rise to such suspension no
longer exist, the
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obligation, if any, of such Bank to make such type of Fixed Rate Loans
shall be suspended. Before any Bank gives any notice of unlawfulness or
impossibility to the Agent under this Section 5.2, such Bank shall designate a
different Applicable Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. Upon receipt of such notice, the Company shall
prepay in full the then outstanding principal amount of each affected Fixed
Rate Loan of such Bank together with accrued interest thereon (a) on the last
day of the then current Interest Period applicable to such Loan if such Bank
may lawfully continue to maintain and fund such Loan to such day, or (b)
immediately if such Bank may not lawfully continue to fund and maintain such
Loan to such day. Concurrently with prepaying each such Fixed Rate Loan, the
Company shall borrow a Floating Rate Loan (or, if the Company so elects by at
least three Business Days' notice to the Agent and such Bank, a Fixed Base Rate
Syndicated Loan of an unaffected type) in an equal principal amount from such
Bank, for an Interest Period coinciding with the remaining term of the Interest
Period applicable to such Fixed Rate Loan, and such Bank shall make such a
Loan, provided that there has been no acceleration of the amounts due under the
Notes pursuant to Article IX.
5.3 Increased Cost; Yield Protection.
(a) If, after the date hereof, the introduction of, or any change
in, any applicable law, treaty, rule or regulation (whether domestic or foreign
and including, without limitation, the Federal Deposit Insurance Act, as
amended, and Regulation D of the Board of Governors of the Federal Reserve
System) or in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive of any such authority, central bank or
comparable agency (whether or not having the force of law),
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its obligation to make any
Loans, its Notes, any of its Loans or any of the Letters of Credit or
shall change the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest on any of
its Fixed Rate Loans or in respect of its obligation, if any, to make
any Loans or to participate in the risk of Letters of Credit (except
for changes in the rate of tax on the overall net income of such Bank
or its Applicable Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Applicable Lending Office is
located), or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System, but excluding (A) with respect to any
CD Rate Loan any reserve requirements to the extent included in
clause (ii) of subpart (a) of the definition of CD Base Rate when
calculating the CD Base Rate with respect to such CD Rate Loan,
and (B) with respect to any Eurodollar Rate Loan any reserve
requirements to the extent included in clause (b) of the definition
of Eurodollar Base Rate when calculating the Eurodollar Base
Rate with respect to such Eurodollar Rate Loan), special deposit
or similar requirement (including, without limitation, any deposit
insurance assessment in respect of deposits held outside the United
States, but excluding with respect to any CD Rate Loan any assessment
to the extent included in clause (b) of the definition of CD Base Rate
when calculating the CD Base Rate with respect to such CD Rate Loan),
against assets of, deposits with or for the account of, or credit
extended by, any Bank's Applicable Lending Office, or shall impose on
any Bank (or its Applicable Lending Office or the relevant interbank
market or the United States certificate of deposit market) any other
condition affecting its obligation, if any, to
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make Loans or to participate in the risk of Letters of Credit or
affecting its Loans or the Letters of Credit or affecting the
Company's obligations under the Notes in respect of such Loans,
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining its existing or future
Fixed Rate Loans or of participating in the risk of Letters of Credit, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under the Notes (in respect
of Fixed Rate Loans or Letters of Credit) by an amount deemed by such Bank to
be material, then such Bank may notify the Company (with a copy of any such
notice to be provided to the Agent) of any such fact of which it has knowledge
and demand compensation therefor; provided that, if such Bank fails to demand
such compensation (or notify the Company that it will or may demand such
compensation) promptly upon becoming aware of the facts entitling it to do so
or, if such Bank is contesting the cause of such increased cost or reduced sum
received or receivable, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Bank who is responsible
for the administration of the credit outstanding under this Agreement from such
Bank to the Company becoming aware of such facts, such Bank shall not be
entitled to such compensation for the period before the date on which it
actually demands (or notifies the Company that it will or may demand) such
compensation; provided, further, that if such Bank is contesting the cause of
such increased cost or reduced sum received or receivable, such Bank shall not
in any event be entitled to such compensation for any period prior to six
months before it notifies the Company that such Bank may or will demand such
compensation. The Company agrees to pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased cost or reduction
within 15 days after demand by such Bank. A certificate of such Bank setting
forth the basis for determining such additional amount or amounts necessary to
compensate such Bank shall be conclusive in the absence of manifest error.
Each such Bank will designate a different Applicable Lending Office if such
designation would avoid the need for, or reduce the amount of such compensation
and would not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. In the event that the Company is required to compensate any Bank
for any increased cost to such Bank pursuant to this Section 5.3(a), the
Company shall have the right, upon at least five Business Days' prior notice to
such Bank through the Agent, to prepay in full any outstanding Fixed Rate Loans
that are related to such increased cost of such Bank, together with accrued
interest thereon to the date of prepayment; provided that prepayment of
such Fixed Rate Loans shall not relieve the Company of its obligation
to compensate such Bank in accordance with this Section 5.3(a), the amount
of which compensation shall be due at the time of such prepayment,
notwithstanding any other provision of this Section 5.3(a). Concurrently with
prepaying each such Fixed Rate Loan of such Bank, the Company shall borrow a
Floating Rate Loan (or, if the Company shall so elect in its notice of
prepayment, a Fixed Rate Loan of another type) in an equal principal amount
from such Bank for an Interest Period coinciding with the remaining term of the
Interest Period applicable to such Fixed Rate Loan, and such Bank shall make
such a Floating Rate Loan (or Fixed Rate Loan of the other type), provided that
there has been no acceleration of the amount due under the Notes pursuant to
Article IX. The Company shall pay compensation owing to any Bank(s) under this
Section 5.3(a) notwithstanding any subsequent replacement (pursuant to Section
11.13) of the Bank(s) making demand for such compensation.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or the Agent
with any guideline, request or directive of any such authority (whether or not
having the force of law), including any risk-based capital guidelines, affects
or would affect the amount of capital required or expected to be maintained by
such Bank or the Agent (or any corporation controlling such Bank or the Agent)
and such Bank or the Agent, as the case may be, determines that the amount of
such capital is increased by or based upon the existence of such Bank's or the
Agent's
MASCOTECH, INC. CREDIT AGREEMENT
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obligations or Loans hereunder and such increase has the effect of
reducing the rate of return on such Bank's or the Agent'sE(or such controlling
corporation's) capital as a consequence of such obligations or Loans hereunder
to a level below that which such Bank or the Agent (or such controlling
corporation) could have achieved but for such circumstances (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank or the Agent to be material, then such Bank or the Agent may notify
the Company of any such fact of which it has knowledge and the Company shall pay
to such Bank or the Agent, as the case may be, from time to time, upon request
by such Bank (with a copy of such request to be provided to the Agent) or the
Agent, additional amounts sufficient to compensate such Bank or the Agent (or
such controlling corporation) for any increase in the amount of capital and
reduced rate of return which such Bank or the Agent reasonably determines to be
allocable to the existence of such Bank's or the Agent'sEobligations or Loans
hereunder; provided that, if such Bank or the Agent fails to notify the Company
of any such fact promptly upon becoming aware thereof or, if such Bank or the
Agent is contesting the cause of such increase in the amount of capital or
reduced rate of return, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Bank who is responsible
for the administration of the credit outstanding under this Agreement from such
Bank to the Company becoming aware of any such fact, such Bank or the Agent, as
the case may be, shall not be entitled to such compensation for the period
before the date on which it actually notifies the Company of such fact;
provided, further, that if such Bank or the Agent is contesting the cause of
such increase in the amount of capital or reduced rate of return, such Bank or
the Agent, as the case may be, shall not in any event be entitled to such
compensation for any period prior to six months before it notifies the Company
that such Bank or the Agent, as the case may be, may or will demand such
compensation. A statement as to the amount of such compensation, prepared in
good faith and in reasonable detail by such Bank or the Agent, as the case may
be, and submitted by such Bank or the Agent to the Company, shall be conclusive
in the absence of manifest error in computation. The Company shall pay such
compensation for the periods covered by such notice notwithstanding any
replacement (pursuant to Section 11.13) of the Bank(s) making demand for such
compensation.
5.4 Substitute Loans. If (a) the obligation, if any, of any Bank to
make any type of Fixed Rate Loans has been suspended pursuant to Section 5.2 or
(b) any Bank has demanded compensation under Section 5.3(a) and the Company
shall, by at least five Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section 5.4 shall apply to such
Bank, then, unless and until such Bank notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(i) all Loans which would otherwise be made by such Bank as the
affected type of Fixed Rate Loans shall be made instead as Floating Rate
Loans, or if the Company shall so elect in the Notice of Borrowing, another
type of Fixed Rate Loan (whichever type is not affected by such
circumstances) for an Interest Period coincident with the related Fixed
Rate Borrowing, and
(ii) after each of its affected Fixed Rate Loans has been repaid,
all payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Substitute Loans instead.
5.5 Funding Losses. If the Company makes any payment of principal with
respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.8, 4.2, 5.1,
5.2, 5.3 or 5.4, Article IX or otherwise), or if the Company fails to borrow any
Fixed Rate Loan after the related Notice of Borrowing has been given to the
Agent, or if the Company fails to make any payment of principal or interest in
respect of a Fixed Rate Loan when due, the Company shall reimburse each Bank on
demand for any resulting loss or expense incurred by such Bank, including
without limitation any loss incurred in obtaining, liquidating or employing
deposits from third parties, whether or not such Bank shall have funded or
committed to fund such Loan. A statement as to the amount of such loss or
expense, prepared in good faith and in reasonable detail by such Bank and
submitted by such Bank to the Company,
MASCOTECH, INC. CREDIT AGREEMENT
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shall be conclusive and binding for all purposes absent manifest error
in computation. Calculation of all amounts payable to each Bank under this
Section 5.5 shall be made as though such Bank shall have actually funded or
committed to fund the relevant Fixed Rate Loan through the purchase of an
underlying deposit in an amount equal to the amount of such Loan and having a
maturity comparable to the related Interest Period; provided, however, that
such Bank may fund any Fixed Rate Loan in any manner it sees fit and the
foregoing assumption shall be utilized only for the purpose of calculation of
amounts payable under this Section 5.5.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Agent and the Banks that:
6.1 Corporate Existence and Power. Each of the Company and its
Domestic Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of its incorporation, and is duly
qualified as a foreign corporation in each State or other jurisdiction in the
United States of America in which the conduct of its operations or the ownership
of its properties requires such qualification and failure so to qualify would
materially and adversely affect the Company and its Subsidiaries taken as a
whole. All of such corporations have all requisite corporate power to own their
properties and to carry on their businesses, considered as a whole,
substantially as now owned and as now being conducted. The Company has full
power, authority and legal right to execute and deliver this Agreement and the
Notes, to perform and observe the terms and provisions hereof and thereof, and
to borrow hereunder.
6.2 Corporate Authority; No Violations; Governmental Filings; Etc. The
execution, delivery and performance by the Company of this Agreement, the
issuance of the Notes and the borrowings hereunder have been duly authorized by
all necessary corporate action and do not and will not violate the provisions of
any applicable law or regulation or of the certificate of incorporation or
by-laws of the Company or any Subsidiary or any order of any court, regulatory
body or arbitral tribunal and do not and will not result in the breach of, or
constitute a default or require any consent under, or create any lien, charge or
encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to, any indenture or other agreement or instrument to which the Company
or any Subsidiary is a party or by which the Company or any Subsidiary or its
property may be bound or affected. Neither the execution, delivery and
performance of this Agreement nor the issuance of the Notes nor any borrowing
hereunder requires, for the validity thereof, nor does the enforceability of
this Agreement or any of the Notes require, any filing with, or consent,
authorization or approval of, any state or federal agency or regulatory
authority, other than filings, consents or approvals which have been made or
obtained or which, in the case of any such borrowing, will be made or obtained
prior to the due date for such filing, consent or approval.
6.3 Binding Effect. This Agreement constitutes, and the Notes when
executed and delivered by the Company for value will constitute, the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms.
6.4 Litigation. There are no suits, proceedings, or actions at law or
in equity or by or before any governmental commission, board, bureau, or other
administrative agency, pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries or affecting the Company or any
of its Subsidiaries, which, in the reasonable opinion of the Company, either (i)
are likely to have a material adverse effect on the financial condition or
business of the Company and its Subsidiaries taken as a whole or (ii) will in
any manner affect the enforceability or validity of this Agreement or any Note.
MASCOTECH, INC. CREDIT AGREEMENT
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6.5 Taxes. The Company and each Subsidiary has filed (or has obtained
extensions of the time by which it is required to file) all United
States federal income tax returns, and all other tax returns which are required
to be filed and are material to the business, operations or financial position
of the Company and its Subsidiaries taken as a whole, and has paid all taxes
shown due pursuant to such returns or pursuant to any assessment received by
the Company or any Subsidiary, except such taxes, if any, as are being
contested in good faith and as to which, in the reasonable opinion of the
Company, adequate reserves have been provided in accordance with generally
accepted accounting principles. The Company does not know of any proposed tax
assessment against it or any Subsidiary or of any basis for one, except to the
extent any such assessment has been, in the reasonable opinion of the Company,
adequately provided for in the consolidated tax reserves of the Company and its
Subsidiaries in accordance with generally accepted accounting principles.
6.6 Financial Condition. The consolidated balance sheet of the Company
and its Consolidated Subsidiaries and consolidated statements of income,
shareholders' equity and cash flows of the Company and its Consolidated
Subsidiaries for the fiscal year ended December 31, 1995, certified by Coopers &
▇▇▇▇▇▇▇, independent certified public accountants, and the interim unaudited
consolidated balance sheet and interim unaudited consolidated statements of
income, shareholders' equity and cash flows of the Company and its Consolidated
Subsidiaries, as of or for the nine-month period ended on September 30, 1996,
copies of which have been furnished to the Banks, fairly present the
consolidated financial position of the Company and its Consolidated Subsidiaries
as at the dates thereof, and the consolidated results of operations of the
Company and its Consolidated Subsidiaries for the respective periods indicated,
all in accordance with generally accepted accounting principles consistently
applied (except as disclosed in the notes thereto and subject, in the case of
interim statements, to year-end audit adjustments). Except as disclosed in the
financial statements as of or for the nine-month period ended September 30,
1996, there has been no material adverse change in the consolidated operations
or condition, financial or otherwise, of the Company and its Consolidated
Subsidiaries considered as a whole, since December 31, 1995.
6.7 Compliance with ERISA. Each of the Company and each ERISA
Affiliate of the Company (a) has fulfilled its obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and (b) is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Code with respect to each Plan. Neither the Company nor any ERISA
Affiliate of the Company has (x) sought a waiver of the minimum funding standard
under Section 412 of the Code in respect of any Plan, (y) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Code, in each case securing an
amount greater than $10,000,000, or (z) incurred any liability under Title IV of
ERISA, other than a liability to the PBGC for premiums under Section 4007 of
ERISA, which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries.
6.8 Environmental Matters. In the ordinary course of its business, the
Company conducts appropriate reviews of the effect of Environmental Laws on the
business, operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates pertinent liabilities and costs
(including, without limitation, capital or operating expenditures required for
clean-up or closure of properties presently or previously owned or for the
lawful operation of its current facilities, required constraints or changes in
operating activities, and evaluation of liabilities to third parties, including
employees, together with
MASCOTECH, INC. CREDIT AGREEMENT
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pertinent costs and expenses). On the basis of this review, the Company has
reasonably concluded that Environmental Laws are not likely to have a material
adverse effect on the business, financial position or results of operations of
the Company and its Consolidated Subsidiaries, considered as a whole.
6.9 Compliance with Laws. The Company complies, and has caused each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder), except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings and the Company has
established appropriate reserves for liability for noncompliance therewith in
accordance with generally accepted accounting principles, (b) no officer of the
Company is aware that the Company or the relevant Subsidiary has failed to
comply therewith, or (c) the Company has reasonably concluded that failure to
comply is not likely to have a material adverse effect on the business,
financial position or results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole.
ARTICLE VII.
COVENANTS
Until all the Commitments and Letters of Credit have expired or been
terminated and all Loans and reimbursement and other obligations of the Company
hereunder have been paid in full, the Company covenants that:
7.1 Financial Statements. The Company will deliver to each of the
Banks:
(a) as soon as practicable and in any event within 46 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, (i) an unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries, as at the end of each such quarter, and (ii)
unaudited consolidated statements of income and cash flows of the Company and
its Consolidated Subsidiaries, for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in
each of the statements required by this subsection (a), in comparative form,
corresponding figures as of the end of and for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer or chief accounting
officer of the Company as having been prepared in all material respects in
accordance with generally accepted accounting principles and as to fairness of
presentation;
(b) as soon as practicable and in any event within 90 days after the
end of each fiscal year of the Company, (i) a consolidated balance sheet of the
Company and its Consolidated Subsidiaries, as at the end of such year, and (ii)
consolidated statements of income, shareholders' equity, and cash flows of the
Company and its Consolidated Subsidiaries for such year, setting forth in each
of the statements required by this subsection (b), in comparative form,
corresponding figures as of the end of and for the preceding fiscal year, and
all in reasonable detail and certified without material qualifications by
Coopers & ▇▇▇▇▇▇▇, or by other independent certified public accountants of
recognized national standing selected by the Company and reasonably acceptable
to the Agent;
(c) as soon as practicable and in any event within 30 days after
the sending or filing thereof, copies of all such financial statements and
reports as it shall send to its security holders and of all final prospectuses
under the Securities Act of 1933 (other than form S-8), reports on forms 10-Q,
10-K and 8-K and all similar regular and periodic reports filed by it (i) with
any federal department, bureau, commission or agency from time to time having
jurisdiction with respect to the sale of securities or (ii) with any securities
exchange;
(d) if and when the Company or any ERISA Affiliate of the Company
(i) gives or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) with
MASCOTECH, INC. CREDIT AGREEMENT
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46
respect to any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails
to make any payment or contribution to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of the Company setting forth
details as to such occurrence and action, if any, which the Company or
applicable ERISA Affiliate is required or proposes to take; provided that no
such certificate shall be required unless the aggregate unpaid actual or
potential liability of the Company and the ERISA Affiliates involved in all
events referred to in clauses (ii) through (vii) above of which officers of the
Company have obtained knowledge and have not previously reported under this
subparagraph (d) exceeds $15,000,000; and
(e) with reasonable promptness, such other information regarding
the financial condition of the Company or any of its Subsidiaries as any Bank
may from time to time reasonably request.
7.2 Certificates of No Default and Compliance.
(a) Concurrently with each delivery of the financial statements
pursuant to subsections (a) and (b) of Section 7.1, the Company will deliver to
the Agent (with a copy delivered to each Bank) a certificate, signed by the
chief accounting officer or chief financial officer of the Company (i) stating
that to the best of his knowledge after due inquiry, at the date of such
financial statements no Default had occurred and was continuing, or, if a
Default had occurred and was continuing, specifying the nature and period of
existence thereof and what action the Company has taken or proposes to take with
respect thereto; and (ii) setting forth as of the date of such financial
statements, in reasonable detail, the calculations employed to determine
compliance with Sections 7.5, 7.7, 7.8 and 7.9 and an explanation in reasonable
detail of any differences between generally accepted accounting principles as
then in effect and generally accepted accounting principles used in making such
calculations, as may be permitted under Section 1.2. The certificate will be
accompanied by a calculation of the ratio of (i) Senior Debt as of the end of
such fiscal quarter to (ii) EBITDA Minus Capital Expenditures as of the end of
such fiscal quarter (calculated on a pro forma basis as appropriate).
(b) Within 60 days after the end of each fiscal quarter of each
fiscal year of the Company (including the last fiscal quarter of each such
fiscal year), the Company will deliver to the Agent (with a copy delivered to
each Bank) a certificate, signed by the chief accounting officer, chief
financial officer, treasurer or assistant treasurer of the Company, setting
forth in reasonable detail the calculation of the Senior Leverage Ratio and the
Interest Coverage Ratio, as of the Determination Date and for the Determination
Period, respectively, with respect to the next forthcoming Application Period,
and identifying the Applicable Margin for such Application Period as a result of
such calculations.
(c) Within fifteen Business Days after any officer of the Company
obtains knowledge of a Default, the Company will, unless the same shall have
been cured within such fifteen Business Day period, give written notice to each
of the Banks thereof, specifying the nature thereof, the period of existence
thereof and what action the Company proposes to take with respect thereto.
MASCOTECH, INC. CREDIT AGREEMENT
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7.3 Preservation of Corporate Existence, Etc. The Company will preserve
and maintain its corporate existence, and qualify and remain qualified as a
validly existing corporation in good standing in each jurisdiction in which the
conduct of its operations or the ownership of its properties requires such
qualification and failure so to qualify would materially and adversely affect
the Company and its Subsidiaries taken as a whole.
7.4 Current Ratio. [Intentionally Omitted]
7.5 Total Leverage Ratio. The Company will not permit or suffer the
Total Leverage Ratio to be greater than (a) 3.75 to 1.0 as of the last day of
any fiscal quarter of the Company occurring during the period from January 1,
1997 through December 30, 1998, (b) 3.00 to 1.0 as of the last day of any fiscal
quarter of the Company during the period from December 31, 1998 through December
30, 1999, (c) 2.75 to 1.0 as of the last day of any fiscal quarter of the
Company during the period from December 31, 1999 through December 30, 2000 or
(d) 2.50 to 1.0 as of the last day of any fiscal quarter of the Company
thereafter.
7.6 Net Worth. [Intentionally Omitted].
7.7 Tangible Capital Funds. The Company will not permit or suffer
Tangible Capital Funds to at any time be less than the sum of (a) $450,000,000
plus (b) 66-2/3% of Net Income Minus Preferred Dividends for the period from
January 1, 1998 through the then latest fiscal year end of the Company; provided
that for purposes of this Section 7.7, Net Income shall exclude the pre-tax
amount attributable to recognition of the Deferred Trimas Gain and the Deferred
MSX Gain or any portion thereof as income.
7.8 Senior Debt Coverage Ratio.
(a) The Company will not permit or suffer the Senior Debt
Coverage Ratio to be greater than 5.00 to 1.00 at any time.
(b) In addition, if as of the last day of each of any two
consecutive fiscal quarters of the Company, the Total Leverage Ratio is equal to
or greater than 1.00 to 1.00, the Company will not permit or suffer the Senior
Debt Coverage Ratio to be greater than the Maximum Allowed Senior Debt Coverage
Ratio as of the Relevant Days immediately following both of such fiscal
quarters.
(c) As used in this Section 7.8, the term "Maximum Allowed Senior
Debt Coverage Ratio" means (i) 3.75 to 1.00 on the Relevant Day immediately
following the last day of any fiscal quarter of the Company ending during the
period from the Closing Date through June 30, 1997, (ii) 3.50 to 1.00 on the
Relevant Day immediately following the last day of any fiscal quarter of the
Company ending during the period from July 1, 1997 through December 31, 1998,
and (iii) 3.00 to 1.00 on the Relevant Day immediately following the last day of
any fiscal quarter of the Company ending after December 31, 1998. For purposes
of this Section 7.8, all Senior Debt which is repaid with cash received by the
Company from Masco Corporation for the purchase of preferred stock or
subordinated debt securities pursuant to the Securities Purchase Agreement
within forty-five days after the last day of any fiscal quarter of the Company
shall be deemed repaid as of the last day of such fiscal quarter, and during
such forty-five day period no Default shall be deemed to have occurred due to
noncompliance with this Section 7.8.
7.9 Subsidiary Indebtedness. The Company will not permit or suffer the
aggregate amount of Debt of its Subsidiaries (other than Debt owing to the
Company or any of its Subsidiaries) at any time to be greater than 15% of the
sum of (a) Senior Debt plus (b) the unused amount of the Commitments.
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7.10 Negative Pledge. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $25,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset
(or acquiring a corporation or other entity which owned such asset),
provided that such Lien attaches to such asset concurrently with or within
90 days after such acquisition;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Consolidated Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is
not secured by any additional assets;
(g) any Lien in favor of the holder of Debt (or any Person acting for
or on behalf of such holder) arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith by appropriate proceedings and the Company or such Consolidated
Subsidiary, as the case may be, has established appropriate reserves
against such claims in accordance with generally accepted accounting
principles;
(h) Liens incidental to the normal conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in the
aggregate materially detract (due to the amount of the liability secured by
such Liens or otherwise) from the value of the assets of the Company and
the Company's Consolidated Subsidiaries taken as a whole or in the
aggregate materially impair the use thereof in the operation of the
business of the Company and the Company's Consolidated Subsidiaries taken
as a whole; and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section; provided that (i) the aggregate outstanding principal amount of
Debt secured by all such Liens on Current Assets shall not at any time
exceed 20% of Current Assets and (ii) the aggregate outstanding principal
amount of Debt secured by all such Liens (including Liens referred to in
clause (i) of this proviso) shall not at any time exceed the sum of 5% of
Net Worth plus 20% of Current Assets, provided, further, that for purposes
of this Section 7.10(i), Current Assets shall not include any assets that
are classified as Current Assets solely because they are held for sale;
provided, however, that the restrictions set forth in this Section 7.10 shall
not apply to "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System), if and to the extent that the value
of the margin stock with respect to which the rights of the Company and its
Subsidiaries are
MASCOTECH, INC. CREDIT AGREEMENT
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restricted by this Section 7.10 would otherwise exceed 25% of the value
of all assets with respect to which the rights of the Company and its
Subsidiaries are restricted by this Section 7.10.
7.11 Dispositions of Assets; Mergers and Consolidations; Restricted
Transfers.
(a) The Company will not (i) directly or indirectly sell, lease,
transfer or otherwise dispose of all or substantially all of its assets or (ii)
merge or consolidate with any other Person unless the Company shall be the
continuing or surviving corporation of such merger or consolidation.
(b) The Company will not, and will not permit any Consolidated
Subsidiary to, directly or indirectly make a Restricted Transfer of its assets
to any Person if, immediately after giving effect thereto, the aggregate amount
of assets disposed of in all Restricted Transfers by the Company and its
Consolidated Subsidiaries in the twelve months then ended would exceed 15% of
the total assets of the Company and its Consolidated Subsidiaries as shown on
the most recent balance sheet delivered to the Banks under Section 7.1;
provided, for purposes of this Section 7.11(b), the aggregate amount of assets
disposed of in all Restricted Transfers by the Company and the Consolidated
Subsidiaries prior to the Closing Date shall be deemed to be equal to zero. For
purposes of this subsection (b), the term "Restricted Transfer" means a direct
or indirect sale, lease, transfer or other disposition of assets (other than
cash, margin stock, or the sale of inventory in the ordinary course of
business) to any Person (other than the Company or a Substantially-Owned
Consolidated Subsidiary) if, and to the extent that, in connection with such
transaction (and as a substantial part of the consideration incident thereto),
the Company or any Consolidated Subsidiary receives an equity ownership interest
in such Person or any right to receive payments which are specifically
contingent in amount or duration upon the earnings of such Person or any portion
of such Person's business.
(c) Notwithstanding any other provision of this Section 7.11, no
disposition of assets, merger, consolidation or Restricted Transfer referred to
in subsection (a) or (b) of this Section shall be permitted if, immediately
after giving effect thereto, any Default would exist.
7.12 Changes in Subordinated Debt. The Company will not (a) transfer,
convey, assign or deliver to any holder of any Subordinated Debt, or to any
trustee, paying agent or other fiduciary for the benefit of the holder of any
Subordinated Debt (including any defeasance), any cash, securities (other than
securities constituting Subordinated Debt) or other assets of the Company or any
Subsidiary in payment or on account of, or as provision for, principal, premium,
if any, or interest on any Subordinated Debt which is not required under the
instruments and agreements relating to such Subordinated Debt (provided that any
payment which is blocked by any creditors of the Company or any of its
Subsidiaries pursuant to the terms of the applicable instrument or agreement
shall not be deemed to be required) or (b) or amend, modify or waive any term or
provision of any instrument or agreement relating to any Subordinated Debt such
that it would not constitute "Subordinated Debt" as defined herein if (i) at the
time of any such transfer, conveyance, assignment, delivery, amendment,
modification or waiver there shall exist and be continuing, or if immediately
after giving effect thereto as a reasonably foreseeable result thereof on a pro
forma basis there would exist or would be caused thereby, an Event of Default or
Default, or (ii) unless the Agent is given at least five (5) Business Days (or
such shorter period of time acceptable to the Agent) prior notice thereof, any
such transfer, conveyance, assignment or delivery is made more than seven (7)
days in advance of a scheduled payment or prepayment on any Subordinated Debt or
in an amount in excess of the amount of such scheduled payment or prepayment.
7.13 Use of Proceeds. None of the proceeds of the Loans made under this
Agreement will be used in violation of any applicable law or regulation
including, without limitation, Regulation U of the Board of Governors of the
Federal Reserve System.
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7.14 Fiscal Year. The Company will not change its fiscal year from
beginning on JanuaryE1 of the calendar year and ending on December 31 of the
calendar year.
7.15 Compliance with Laws. The Company will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings, (b) no officer of the
Company is aware that the Company or the relevant Subsidiary has failed to
comply therewith or (c) the Company has reasonably concluded that failure to
comply is not likely to have a material adverse effect on the business,
financial position or results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole.
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES
The obligation of the Agent to issue any Letter of Credit, the obligation
of each Bank to make a Syndicated Loan on the occasion of each Syndicated
Borrowing hereunder, and the willingness of any Bank to consider, in its sole
discretion, making any Bid-Option Loan hereunder, is subject to the performance
by the Company of all its obligations under this Agreement and to the
satisfaction of the following further conditions:
8.1 Each Borrowing and Letter of Credit Issuance. In the case of each
Borrowing (other than a Floating Rate Borrowing deemed disbursed under Section
3.3(e)) and Letter of Credit Issuance hereunder:
(a) Receipt by the Agent of (i) in the case of each Borrowing,
the Notice of Borrowing from the Company containing any information required by
Section 3.2 or 3.4, as the case may be, and (ii) in the case of each Letter of
Credit Issuance, the Request for Letter of Credit Issuance from the Company as
required by Section 3.3, in each case signed by an officer or any other employee
of the Company previously designated to the Agent in writing by the Chairman,
President or any Vice President of the Company as having authority until further
notice to request a Borrowing or Letter of Credit Issuance under this Agreement,
and, in the case of each Letter of Credit Issuance, together with an application
for the related Letter of Credit and other related documentation requested by
and acceptable to the Agent appropriately completed and duly executed by such
designated officer or other employee and all fees required under Section 3.3(c);
(b) The fact that both before and at the conclusion of the
Borrowing or Letter of Credit Issuance: (i) in the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing and (ii) in
the case of any other Borrowing or any Letter of Credit Issuance, no Default
shall have occurred and be continuing;
(c) The fact that the representations and warranties contained in
this Agreement (except, in the case of a Refunding Borrowing, the
representations and warranties set forth in Section 6.4(i), Section 6.5, the
last sentence of Section 6.6, clause (a) of the first sentence of Section 6.7
and Sections 6.8 and 6.9) shall be true and correct in all material respects or,
with respect to such representations and warranties that include a materiality
standard, in all respects, on and as of the date of such Borrowing or Letter of
Credit Issuance with the same force and effect as if made on and as of such
date; and
MASCOTECH, INC. CREDIT AGREEMENT
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(d) Receipt by the Agent of such other opinions, documents,
evidence, materials and information with respect to the matters contemplated
hereby as the Agent or the Required Banks may reasonably request.
Each Borrowing by the Company and Letter of Credit Issuance pursuant to this
Agreement, including the first such Borrowing or Letter of Credit Issuance,
shall be deemed to be a representation and warranty by the Company on the date
of such Borrowing or Letter of Credit Issuance as to the facts specified in
clauses (b) and (c) of this Section 8.1.
8.2 Initial Borrowing or Letter of Credit Issuance. In the case of the
initial Borrowing or Letter of Credit Issuance pursuant to this Agreement:
(a) Receipt by the Agent for the account of each Bank of a duly
executed Syndicated Note and a duly executed Bid-Option Note, each dated on or
before the date of such Borrowing or Letter of Credit Issuance; and
(b) Receipt by the Agent of all the items, and completion of all
the matters, required by Section 8.3.
8.3 Closing. On or prior to the Closing Date, the Company shall
furnish to the Banks the following items, and the following matters shall be
completed:
(a) An opinion of counsel for the Company, substantially in the
form of ExhibitEM hereto, and covering such other matters as any Bank may
reasonably request, dated the Closing Date;
(b) An opinion of Dickinson, Wright, Moon, Van DusenE& ▇▇▇▇▇▇▇,
special counsel for the Agent, substantially in the form of Exhibit N hereto,
dated the Closing Date;
(c) Certified copies of all corporate action taken by the Company
to authorize the execution, delivery and performance of this Agreement and the
Notes, and the Borrowings and Letter of Credit Issuances hereunder, and such
other corporate documents and other papers as any Bank may reasonably request,
including, without limitation, certified copies of the Company's articles of
incorporation and by-laws;
(d) A certificate of a duly authorized officer of the Company,
dated the Closing Date, as to the incumbency, and setting forth a specimen or
facsimile signature, of each of the persons (i) who has signed this Agreement on
behalf of the Company; (ii) who has signed the Notes on behalf of the Company;
and (iii) who will, until replaced by other persons duly authorized for that
purpose, act as the representatives of the Company for the purpose of
signing documents in connection with this Agreement and the transactions
contemplated hereby;
(e) A certificate of a senior officer of the Company to the
effect set forth in Section 8.1(b) and (c);
(f) The closing fees payable under Section 3.7, which shall be
paid to the Agent for the account of the Banks;
(g) A certificate, signed by the chief accounting officer or
chief financial officer of the Company, setting forth in reasonable detail the
calculations of the Senior Leverage Ratio as of December 31, 1996 and the
Interest Coverage Ratio for the period of four consecutive fiscal quarters of
the Company
MASCOTECH, INC. CREDIT AGREEMENT
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ending December 31, 1996, and identifying the Applicable Margin for
the period from the Closing Date to the beginning of the next Application Period
as a result of such calculations; and
(h) The Company shall pay all Existing Loans, all interest due
thereon and all fees and other liabilities owing pursuant to the Existing Credit
Agreement, other than the principal and interest due on the Existing Bid-Option
Loans.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.1 Events of Default. If any one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) The Company shall fail to pay when due any installment of
principal of any Note or shall fail to pay within five days of the due date
thereof any interest on any Note or any facility fee, closing fee, Letter
of Credit fee, or Agent'sEfee payable under this Agreement, or any
reimbursement obligation under Section 3.3 (unless satisfied by the deemed
disbursement of Floating Rate Loans); or
(b) The Company shall fail to observe or perform any covenant
contained in any of Sections 7.3, 7.5 to 7.12 inclusive and 7.14; or
(c) The Company shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clauses
(a) and (b) above) for thirty (30) days after written notice thereof has
been given to the Company by any Bank or the Agent; or
(d) Any representation or warranty of the Company or any officer
of the Company to the Banks contained herein or in any certificate,
statement or report furnished to the Banks hereunder shall prove to have
been incorrect or misleading in any material respect on the date when made
or deemed made, provided that, if any representation and warranty deemed to
have been made by the Company pursuant to the last sentence of Section 8.1
as to the satisfaction of the condition of borrowing set forth in clause
(b)(i) of Section 8.1 shall have been incorrect solely by reason of the
existence of an Event of Default of which the Company was not aware when
such representation and warranty was deemed to have been made and which was
cured before or promptly after the Company became aware thereof, then such
representation and warranty shall be deemed not to have been incorrect in
any material respect; or
(e) The Company or any Significant Subsidiary shall fail to pay at
maturity, or within any applicable period of grace, any Debt (other than a
Loan and other than Acquired Debt in an aggregate outstanding principal
amount not exceeding $15,000,000) having an aggregate principal amount in
excess of $5,000,000, and such failure has not been waived, or shall fail
to observe or perform any term, covenant or agreement (other than such a
term, covenant or agreement to or for the benefit of a Bank or Affiliate
thereof restricting the sale, pledge or other disposition by the Company or
any Significant Subsidiary of "margin stock" having a value in excess of
25% of the value of the assets referred to in Section 221.2(g)(2)(i) of
Regulation U unless the Board of Governors of the Federal Reserve System or
its staff advises the Agent in writing that the existence of this
subsectionE(e) without this parenthetical exception would not in such
circumstances render this Agreement "secured directly or indirectly by
margin stock" within the meaning of its
MASCOTECH, INC. CREDIT AGREEMENT
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RegulationEU), contained in any agreement (other than this Agreement)
by which it is bound evidencing or securing indebtedness for borrowed
money (other than Acquired Debt in an aggregate outstanding principal
amount not exceeding $15,000,000) for such period of time as would cause
or permit the holder or holders (or any Persons acting for or on behalf of
such holder or holders) thereof or of any obligations issued thereunder to
accelerate the maturity thereof or of any such obligations in an aggregate
principal amount in excess of $5,000,000, and such failure has not been
waived; provided that for purposes of this subsection (e), a failure by
the Company or any Significant Subsidiary to observe or perform any term,
covenant or agreement in respect of the industrial revenue bonds
identified on ScheduleE2 attached hereto, or to pay on the due date
therefor the debt outstanding thereunder, shall not be deemed a Default or
contribute to the $5,000,000 aggregate limitation set forth above, so long
as the Company or such Significant Subsidiary satisfies all obligations to
pay premium, if any, principal of, and interest when due on such bonds
(whether or not related to an acceleration of maturity) within five days
after the due date therefor; or
(f) The Company or any Significant Subsidiary shall (i) apply for
or consent to the appointment of a receiver, custodian, trustee, liquidator
or the like of itself or of a significant portion of its assets; (ii) be
unable or admit in writing its inability to pay its debts as they mature;
(iii) make a general assignment for the benefit of creditors; (iv) be
adjudicated a bankrupt or insolvent; or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any insolvency law, or
any answer admitting the material allegations of a petition filed against
it in any bankruptcy, reorganization or insolvency proceedings, or a
resolution of either the shareholders or the Board of Directors of such
corporation shall be adopted for the purpose of effecting any of the
foregoing; or
(g) A proceeding shall be instituted without the application,
approval or consent of the Company or any Significant Subsidiary in any
court of competent jurisdiction seeking, in respect of the Company or such
Significant Subsidiary, adjudication in bankruptcy, dissolution, winding
up, reorganization, a composition or arrangement with creditors, a
readjustment of debts, the appointment of a receiver, custodian, trustee,
liquidator or the like of the Company or such Significant Subsidiary or of
a significant portion of its assets, or other like relief in respect of
the Company or such Significant Subsidiary under any insolvency or
bankruptcy law, and the same shall continue undismissed or unstayed and in
effect for any period of sixty consecutive days; or
(h) Final judgment for the payment of money in excess of
$1,000,000 in amount shall be rendered by a court of record against the
Company or any Significant Subsidiary and the Company or such Significant
Subsidiary shall not discharge the same or provide for its discharge, or
procure a stay of execution thereof, within sixty days from the date of
entry thereof, and within said period of sixty days or such longer period
during which execution of such judgment shall have been stayed, move to
vacate said judgment or appeal therefrom and cause the execution thereof to
be stayed pending determination of such motion or during such appeal; or
(i) The Company or any ERISA Affiliate of the Company shall fail
to pay when due an amount or amounts aggregating in excess of $1,000,000
which it shall have become liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Benefit Liabilities in excess of $25,000,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA by
the Company or any ERISA Affiliate of the Company, any plan administrator
or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Material Plan and such proceeding shall not
have been dismissed within thirty days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or
MASCOTECH, INC. CREDIT AGREEMENT
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(j)(i) Any Person or "group" (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended), other than any
Person in the Masco Group or any group that includes any Person in the
Masco Group (A) shall have acquired beneficial ownership of 25% or more of
the capital stock having ordinary voting power in the election of directors
of the Company or (B) shall obtain the power (whether or not exercised) to
elect a majority of the Company's directors or (ii) the Board of Directors
of the Company shall not consist of a majority of Continuing Directors;
"Continuing Directors" shall mean the directors of the Company on the
Closing Date and each other director, if such other director's nomination
for election to the Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors;
then, and in each such case, the Agent may and, upon being directed to do so by
the Required Banks, shall, by written notice to the Company, (i) immediately
terminate the Commitments, (ii) declare the principal of and interest accrued
on all the Notes, all unpaid reimbursement obligations in respect of drawings
under Letters of Credit, and all other amounts owing under this Agreement to be
immediately due and payable or (iii) demand immediate delivery of cash
collateral, and the Company agrees to deliver such cash collateral upon demand,
in an amount equal to the maximum amount that may be available to be drawn at
any time prior to the stated expiry of all outstanding Letters of
Credit, or any one or more of the foregoing, whereupon the Commitments shall
terminate forthwith and all such amounts, including such cash collateral, shall
become immediately due and payable without presentment or demand for payment,
notice of non-payment, protest or further notice or demand of any kind, all of
which are expressly waived by the Company; provided, however, that in the case
of the occurrence of any event described in the foregoing clauses (f) and (g)
the Commitments shall automatically terminate forthwith and all such amounts,
including such cash collateral, shall automatically become immediately due and
payable without action upon the part of the Required Banks and without the
requirement of any such notice, and without presentment, demand, protest or
other notice of any kind, all of which are hereby waived. Such cash collateral
delivered in respect of outstanding Letters of Credit shall be deposited in a
special cash collateral account to be held by the Agent as collateral security
for the payment and performance of the Company's obligations under this
Agreement and the Notes to the Banks and the Agent.
9.2 Remedies. The Agent may and, upon being directed to do so by the
Required Banks, shall, in addition to the remedies provided in Section 9.1,
exercise and enforce any and all other rights and remedies available to it or
the Banks, whether arising under this Agreement, the Notes or under applicable
law, in any manner deemed appropriate by the Agent, including suit in equity,
action at law, or other appropriate proceedings, whether for the specific
performance (to the extent permitted by law) of any covenant or agreement
contained in this Agreement or in the Notes or in aid of the exercise of any
power granted in this Agreement or the Notes.
9.3 Set Off. Upon the failure of the Company to pay any indebtedness
under this Agreement or the Notes at its maturity (whether at stated maturity,
by acceleration or otherwise) or, in the case of such indebtedness other than
principal of the Loans, when due (after allowing for any grace period provided
with respect thereto under Section 9.1(a)), each Bank may at any time and from
time to time, without notice to the Company (any requirement for such notice
being expressly waived by the Company) set off and apply against any and all of
the obligations of the Company now or hereafter existing under this Agreement
and the Notes, whether owing to such Bank or any other Bank or the Agent, any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Company and any property of the Company from
time to time in possession of such Bank, regardless of whether or not such Bank
shall have made any demand hereunder or any indebtedness owing by such Bank may
be contingent and unmatured. The rights of the Banks under this Section 9.3 are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which the Banks may have.
MASCOTECH, INC. CREDIT AGREEMENT
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ARTICLE X.
THE AGENTS AND THE BANKS
10.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto. The provisions of this Article X are solely for
the benefit of the Agent and the Banks, and the Company shall not have any
rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Company.
10.2 Agent and Affiliates. The Agent in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent. The Agent and its Affiliates may (without having to account therefor to
any Bank) accept deposits from, lend money to, and generally engage in any kind
of banking, trust, financial advisory or other business with the Company or any
Subsidiary of the Company as if it were not acting as Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
10.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Bank, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement action under the Notes), the Agent shall
not be required to exercise any discretion or take any action, but may request
instructions from the Required Banks. The Agent shall in all cases be fully
protected from liability to the Banks in acting, or in refraining from acting,
pursuant to the written instructions of the Required Banks or, when expressly
required by this Agreement, all the Banks, which instructions and any action or
omission pursuant thereto shall be binding upon all of the Banks; provided,
however, that the Agent shall not be required to act or omit to act if, in the
judgment of the Agent, such action or omission may expose the Agent to personal
liability or is contrary to this Agreement, any Note, or applicable law.
10.4 Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof.
The Agent may employ agents (including, without limitation, collateral agents)
and may consult with legal counsel (who may be counsel for the Company),
independent public accountants and other experts selected by it and shall not be
liable to the Banks, except as to money or property received by it or its
authorized agents, for the negligence or misconduct of any such agent selected
by it with reasonable care or for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
10.5 Default. The Agent shall not be deemed to have knowledge of the
occurrence of any Default, unless the Agent has received written notice from a
Bank or the Company specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice, the
Agent shall give written notice thereof to the Banks.
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10.6 Liability of Agent. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Banks for any action taken
or not taken by it or them in connection herewith with the consent or at the
request of the Required Banks or, when expressly required by this Agreement, all
the Banks or in the absence of its or their own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (a) any recital, statement, warranty or representation contained in
this Agreement or any Note, or in any certificate, report, financial statement
or other document furnished in connection with this Agreement, (b) the
performance or observance of any of the covenants or agreements of the Company,
(c) the satisfaction of any condition specified in Article VIII, except as to
the delivery to the Agent of documents that appear on their face to conform to
the requirements of Article VIII (other than requirements of any Bank under
Section 8.3(c) that are not known to the Agent), or (d) the validity,
effectiveness, legal enforceability, value or genuineness of this Agreement, the
Notes, or any other instrument or document furnished in connection herewith.
10.7 Nonreliance on Agent and Other Banks. Each Bank acknowledges and
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Company and the Company's Subsidiaries and
its own decision to enter into this Agreement, and that it will, independently
and without reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decision in taking or not taking action under this
Agreement. The Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement, the Notes or any
other documents referred to or provided for herein or to inspect the properties
or books of the Company and, except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any information concerning the affairs, financial condition or
business of the Company or any of its Subsidiaries which may come into the
possession of the Agent or any of its Affiliates.
10.8 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Company, but without limiting any obligation of the
Company to make such reimbursement), ratably according to their respective
Commitment Percentages from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever (including,
without limitation, fees and disbursements of counsel) which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or the transactions contemplated hereby or any action taken or
omitted by the Agent under this Agreement; provided, however, that no Bank shall
be liable for any portion of such claims, damages, losses, liabilities, costs or
expenses resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including, but not limited to, reasonable fees and expenses of counsel)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Company, but without
limiting the obligation of the Company to make such reimbursement; provided,
however, that no Bank shall be liable for any portion of such expenses incurred
as a result of the Agent's gross negligence or willful misconduct. Each Bank
agrees to reimburse the Agent promptly upon demand for its ratable share of any
amounts owing to the Agent by the Banks pursuant to this Section; provided that
no Bank shall be responsible for failure of any other Bank to make such share
available to the Agent. If the indemnity furnished to the Agent under this
Section shall, in the reasonable judgment of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity from the Banks
(other than for the Agent's gross negligence or willful misconduct) and cease,
or not commence, to take any action until such additional indemnity is
furnished.
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10.9 Resignation of Agent. The Agent may resign as such at any time
upon thirty days' prior written notice to the Company and the Banks. In the
event of any such resignation, the Required Banks shall, by an instrument in
writing delivered to the Company and the Agent, appoint a successor, which shall
be (a) a Bank or (b) a commercial bank organized under the laws of the United
States or any State thereof and having a combined capital and surplus of at
least $500,000,000. If a successor is not so appointed or does not accept such
appointment before the Agent'sEresignation becomes effective, the resigning
Agent may appoint a temporary successor to act until such appointment by the
Required Banks is made and accepted or if no such temporary successor is
appointed as provided above by the resigning Agent, the Required Banks shall
thereafter perform all the duties of the Agent hereunder until such appointment
by the Required Banks is made and accepted. Any successor to the Agent shall
execute and deliver to the Company and the Banks an instrument accepting such
appointment and thereupon such successor Agent, without further act, deed,
conveyance or transfer shall become vested with all of the properties, rights,
interests, powers, authorities and obligations of its predecessor hereunder with
like effect as if originally named as Agent hereunder. Upon request of such
successor Agent, the Company and the resigning Agent shall execute and deliver
such instruments of conveyance, assignment and further assurance and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in such successor Agent all such properties, rights, interests,
powers, authorities and obligations. The provisions of this Article X shall
thereafter remain effective for such resigning Agent with respect to any
actions taken or omitted to be taken by such Agent while acting as the Agent
hereunder.
10.10 Sharing of Payments. The Banks agree among themselves that, in the
event that any Bank shall obtain payment in respect of any Loan or Letter of
Credit reimbursement obligation owing to such Bank under this Agreement through
the exercise of a right of set-off, banker's lien, counterclaim or otherwise in
excess of its ratable share as provided for in this Agreement, such Bank shall
promptly purchase from the other Banks participations in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all of the Banks share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Banks further agree among themselves that if payment to a Bank
obtained by such Bank through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise as aforesaid shall be rescinded or must otherwise be
restored, each Bank which shall have shared the benefit of such payment shall,
by repurchase of participations theretofore sold, return its share of that
benefit to each Bank whose payment shall have been rescinded or otherwise
restored, together with interest thereon at the per annum rate, if any, at which
such Bank whose payment shall have been restored is liable with respect to such
restored payment. The Company agrees that any Bank so purchasing such
a participation may, to the fullest extent permitted by law, exercise all
rights of payment, including set-off, banker's lien or counterclaim, with
respect to such participation as fully as if such Bank were a holder of such
Loan or other obligation in the amount of such participation. The Banks further
agree among themselves that, in the event that amounts received by the Banks
and the Agent hereunder are insufficient to pay all such obligations when due,
the fees and other amounts owing to the Agent in such capacity shall be paid
therefrom before payment of obligations owing to the Banks under this
Agreement. Except as otherwise expressly provided in this Agreement, if any
Bank or the Agent shall fail to remit to the Agent or any other Bank an amount
payable by such Bank or the Agent to the Agent or such other Bank pursuant to
this Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Agent or such other Bank at a rate
per annum equal to the rate at which borrowings are available to the payee in
its overnight federal funds market.
10.11 Withholding Tax Exemption. Each Bank that is not organized and
incorporated under the laws of the United States or any State thereof agrees to
file with the Agent and the Company, in duplicate, (a) on or before the later of
(i) the Closing Date and (ii) the date such Bank becomes a Bank under this
Agreement and (b) thereafter, for each taxable year of such Bank (in the case of
a Form 4224) or for each third taxable year of such Bank (in the case of any
other form) during which interest or fees arising under this
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Agreement and the Notes are received, unless not legally able to do so
as a result of a change in United States income tax law enacted, or treaty
promulgated, after the date specified in the preceding clause (a), on or prior
to the immediately following due date of any payment by the Company hereunder,
a properly completed and executed copy of either Internal Revenue Service Form
4224 or Internal Revenue Service Form 1001 and Internal Revenue Service Form
W-8 or Internal Revenue Service Form W-9 and any additional form necessary for
claiming complete exemption from United States withholding taxes (or such other
form as is required to claim complete exemption from United States withholding
taxes), if and as provided by the Code or other pronouncements of the United
States Internal Revenue Service, and such Bank warrants to the Company that the
form so filed will be true and complete; provided that such Bank's failure to
complete and execute such Form 4224 or Form 1001, or Form W-8 or Form W-9, as
the case may be, and any such additional form (or any successor form or forms)
shall not relieve the Company of any of its obligations under this Agreement,
except as otherwise provided in this Section 10.11
10.12 The Co-Agents. Each Co-Agent, in such capacity, shall have no
authority, duties, responsibilities, obligations, liabilities or functions under
this Agreement or the Notes.
ARTICLE XI.
MISCELLANEOUS
11.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Company (except
with respect to waivers by the Required Banks or all the Banks) and the Required
Banks and, to the extent any rights or duties of the Agent may be affected
thereby, the Agent, provided, however, that no such amendment, modification,
termination, waiver or consent shall, without the consent of the Agent and all
of the Banks, (i) subject to Section 3.10, authorize or permit the extension of
time for, or any reduction of the amount of, any payment of the principal of, or
interest (including the Applicable Margin) on, any Loan, or any fees or other
amount payable hereunder, or (ii) except as expressly authorized hereunder,
amend, extend or terminate the respective Commitment of any Bank, or (iii)
modify the provisions of this Section regarding the taking of any action under
this Section, or the definition of Required Banks, or (iv) modify the several
nature of the obligations of the Banks hereunder, modify the sharing provisions
among the Banks in Section 10.10, modify the first sentence of SectionE11.6 or
modify any other provision of this Agreement which by its terms requires the
consent of all the Banks.
(b) Any such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Bank that
is in default of any of its obligations, covenants or agreements under this
Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction from
the Banks to the Agent, and, for purposes of determining the Required Banks at
any time when any Banks are in default under this Agreement, the Commitments and
Loans of such defaulting Banks shall be disregarded; provided that no action of
a type described in the proviso in Section 11.1(a) shall be binding on a
defaulting Bank without its written consent thereto.
11.2 Notices.
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(a) Except as otherwise provided in subsection 11.2(c) hereof,
all notices and other communications to or upon the parties hereto shall be
deemed to have been duly given or served if sent in writing (including
telecommunications) to the party to which such notice or other communication is
required or permitted to be given or served under this Agreement, to the address
or telex or telecopy number set forth below the name of such party on the
signature pages hereof, or at such other address or telex or telecopy number as
the parties hereto may hereafter specify to the others in writing. If for
purposes of receiving Invitations for Bid-Option Quotes and information
regarding Notices of Bid-Option Rate Borrowings, a Bank wishes to receive such
communications at an address or telex or telecopy number different from its
address or telex or telecopy number for other purposes under this Agreement, the
Agent shall communicate with such Bank for such purposes at such
different address, telex or telecopy number following the Agent's receipt of a
written notice from such Bank requesting that the Agent do so. All mailed
notices or other communications shall be by registered or certified mail,
postage prepaid, with return receipt requested. All notices or other
communications sent by means of telecopy, telex or other wire transmission
shall be made with request for assurance of receipt in a manner typical with
respect to communications of that type. Written notices or other
communications shall be deemed delivered upon receipt if delivered by hand, 3
Business Days after mailing if mailed, or 1 Business Day after deposit with an
overnight courier service if delivered by overnight courier. Notices or other
communications provided by any of the other means referred to above shall be
deemed delivered upon receipt. Notwithstanding the foregoing, all notices to
the Agent shall be effective only when actually received by the Agent, and all
notices from the Agent to any Bank regarding such Bank's obligation to fund
Loans or to make payment under Section 3.3(d) shall be effective only when
actually received by such Bank.
(b) Notices by the Company to the Agent with respect to
terminations or reductions of the Commitments pursuant to SectionE3.8, requests
for Loans and Letter of Credit Issuances pursuant to SectionE3.2, 3.3 or 3.4,
and notices of prepayment pursuant to Section 4.2 shall be irrevocable and
binding on the Company.
(c) Any notice to be given by the Agent or any Bank to the Agent
or any Bank hereunder, may be given by telephone, and shall be promptly
confirmed in writing upon the request of the recipient. Any such notice so
given by telephone shall be deemed effective upon receipt thereof by the party
to whom such notice is to be given.
11.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing
on the part of the Agent or any Bank, nor any delay or failure on the part of
the Agent or any Bank in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver of such right, power or privilege or
otherwise prejudice the Agent's or such Bank's rights and remedies hereunder;
nor shall any single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or privilege. No right or
remedy conferred upon or reserved to the Agent or any Bank under this Agreement,
or any Note, is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to every other right or
remedy granted hereunder or thereunder or now or hereafter existing under any
applicable law. Every right and remedy granted by this Agreement or by
applicable law to the Agent or any Bank may be exercised from time to time and
as often as may be deemed expedient by the Agent or any Bank and, unless
contrary to the express provisions of this Agreement, or the Notes, irrespective
of the occurrence or continuance of any Default.
11.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, including, without limitation, under Sections 5.3, 5.5
and 11.5, representations and warranties of the Company made herein or in any
certificate, report, financial statement or other document furnished by or on
behalf of the Company pursuant to this Agreement shall be deemed to be material
and to have been relied upon by the Banks, notwithstanding any investigation
heretofore or hereafter made by any Bank or on such Bank's behalf, and shall
survive the repayment in full of the Loans and the termination of the
Commitments.
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11.5 Expenses and Indemnification.
(a) The Company shall pay, or reimburse the Agent or any Bank, as
the case may be, for (i) all reasonable out-of-pocket expenses of the Agent,
including reasonable fees and disbursements of special counsel for the Agent, in
connection with the preparation of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default, (ii) all reasonable costs and
expenses of the Agent or such Bank, including reasonable fees and disbursements
of counsel, in connection with any action or proceeding relating to a court
order, injunction or other process or decree restraining or seeking to restrain
the Agent from paying any amount under, or otherwise relating in any way to, any
Letter of Credit and any and all costs and expenses which it may incur relative
to any payment under any Letter of Credit, provided, that the Company shall not
be liable under this clause (ii) to the extent, but only to the extent, any such
costs and expenses of the Agent or any Bank are caused by the Agent's or such
Bank's breach of this Agreement or gross negligence, and (iii) if an Event of
Default occurs, all reasonable expenses incurred by the Agent or such Bank,
including reasonable fees and disbursements of counsel (including in-house
counsel), in connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom. The Company shall indemnify each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of this
Agreement or the Notes.
(b) The Company shall indemnify each Bank and the Agent, and
their respective officers, directors, employees and agents, and hold each Bank
and the Agent, and their respective officers, directors, employees and agents,
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind (including, without limitation, the reasonable fees and
disbursements of counsel for any Bank or the Agent or any such Person in
connection with any investigative, administrative or judicial proceeding,
whether or not such Bank, the Agent or any such Person, as the case may be,
shall be designated a party thereto) which may be incurred by any Bank, by the
Agent or by any such Person, substantially relating to or arising out of any
actual or proposed use of proceeds of Loans or Letters of Credit for the purpose
of acquiring assets or capital stock of any other Person; provided that none of
the Agent, any Bank or any such Person shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
(c) The Company hereby further indemnifies and agrees to hold the
Banks and the Agent, and their respective officers, directors, employees and
agents harmless from and against any and all claims, damages, losses,
liabilities, costs and expenses of any kind or nature whatsoever which the Banks
or the Agent or any such Person may incur or which may be claimed against any of
them by reason of or in connection with any Letter of Credit, and neither any
Bank nor the Agent or any of their respective officers, directors, employees or
agents shall be liable or responsible for: (i) the use which may be made of any
Letter of Credit or for any acts or omissions of any beneficiary in connection
therewith; (ii) the validity, sufficiency or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (iii) payment by
the Agent to the beneficiary under any Letter of Credit against presentation of
documents which do not comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Company shall not be liable hereunder to the Banks
and the Agent and such other Persons and the Agent shall be liable to the
Company to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Agent'sEwrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and
conditions of such Letter of Credit, or
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(B) the Agent's payment under any Letter of Credit to the extent, but
only to the extent, that such payment constitutes gross negligence or willful
misconduct of the Agent. The inclusion of any event in clauses (i) - (vii) of
Section 3.3(f) shall not by itself preclude a finding that such event
constitutes gross negligence or willful misconduct of the Agent. It is
understood that in making any payment under a Letter of Credit the Agent will
rely on documents presented to it under such Letter of Credit as to any and all
matters set forth therein without further investigation and regardless of any
notice or information to the contrary, and such reliance and payment against
documents presented under a Letter of Credit substantially complying with the
terms thereof shall not be deemed gross negligence or willful misconduct of the
Agent in connection with the payment.
11.6 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, provided that
the Company may not, without the prior written consent of all the Banks, assign
its rights or obligations hereunder or under the Notes, and the Banks shall not
be obligated to make any Loan hereunder to any Person other than the Company,
and the Agent shall not be obligated to issue any Letter of Credit for the
account of any Person other than the Company or any Consolidated Subsidiary of
the Company.
(b) The Agent from time to time in its sole discretion may appoint
agents for the purpose of servicing and administering this Agreement and the
transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under this Agreement, the Notes or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Company provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Company hereby consents to
the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(c) Any Bank may sell a participation interest to any financial
institution(s), and such financial institution(s) may further sell a
participation interest (undivided or divided) to any financial institution(s),
in its Commitment and the Loans and risk of the Letters of Credit and such
Bank's or such participating financial institution's, as the case may be, rights
and benefits under this Agreement and the Notes, and to the extent of that
participation, such participant or participants shall have the same rights and
benefits against the Company under Section 9.3 as it or they would have had if
such participant or participants were the Bank making the Loans to the Company
hereunder, provided, however, that in purchasing such participation interest(s)
each such participant shall be deemed to have agreed to share with the Banks the
proceeds thereof as provided in Section 10.10 as fully as if such participant
were a Bank hereunder; and provided further, however, that (i) the obligations
under this Agreement of each Bank selling a participation interest hereunder
shall remain unmodified and fully effective and enforceable against such Bank,
(ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain
the holder of its Notes for all purposes of this Agreement, (iv) the Company,
the Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement, and (v) such Bank shall not grant to its participant(s) any rights
to consent or withhold consent to any action taken by such Bank or the Agent
under this Agreement other than action requiring the consent of all of the
Banks hereunder. Each Bank shall give the Company prior written notice of each
sale by such Bank of a participation interest under this Section 11.6(c). Each
participant shall be entitled to the benefits of Sections 5.3 and 5.5 with
respect to its participation interest as if it were a Bank; provided that no
participant shall be entitled to receive any greater amount pursuant to such
Sections 5.3 and 5.5 than the Bank that originally sold such participation
interest would have been entitled to receive in respect of such participation
interest had no such sale taken place.
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(d) Any Bank may, with the prior written consent of the Company
and the Agent (which consent in each case will not unreasonably be withheld, and
which consent in the case of the Company may not be withheld if there is any
Event of Default under Section 9.1(a), (f) or (g)) assign to one or more banks
or other financial institutions all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Syndicated Loans owing to it, its share of the risk of Letters
of Credit, and the Syndicated Notes held by it); provided, however, that (i)
each such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations (other than any Bid-Option Loan or Bid-Option Note), (ii)
the amount of the Commitment of any assignee Bank as of any date, after giving
effect to each assignment to such assignee that is effective on such date, shall
in no event be less than $10,000,000, (iii) except in the case of an assignment
of all of a Bank's rights and obligations under this Agreement, (A) the amount
of the Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to each such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $5,000,000, or such lesser amount as the Company and the
Agent may consent to and (B) after giving effect to each such assignment, the
amount of the Commitment of the assigning Bank shall in no event be less than
$10,000,000, (iv) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register (as hereinafter
defined), an Assignment and Acceptance in the form of ExhibitEK hereto (an
"Assignment and Acceptance"), together with the Notes subject to such assignment
and a processing and recordation fee of $3,000, and (v) any Bank may without the
consent of the Company or the Agent, and without paying any fee, assign to any
Affiliate of such Bank that is a bank or financial institution all of its rights
and obligations under this Agreement. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in such Assignment
and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (ii) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all of
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(e) By executing and delivering an Assignment and Acceptance, (i)
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (A) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any instrument or other document furnished pursuant hereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any instrument or other document furnished pursuant hereto;
and (B) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under this
Agreement or any instrument or other document furnished pursuant hereto, and
(ii) the assignee thereunder confirms to the assignor thereunder and the other
parties hereto as follows: (A) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 6.6 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (B) such assignee will, independently and
without reliance upon the Agent, such assigning Bank or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (C) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (D) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Bank and agrees that shall be bound by all the terms and provisions of
this Agreement.
MASCOTECH, INC. CREDIT AGREEMENT
-56-
63
(f) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and the Commitment of, and principal amount
of the Loans owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes, absent
demonstrable error, and the Company, the Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee and, unless such assignment is of only a
portion of such assigning Bank's rights and obligations hereunder, the Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and the Agent and the Company have given their written
consent under Section 11.6(d) (if required), (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company. Within five Business Days
after its receipt of such notice, the Company, at its own expense, shall execute
and deliver to the Agent (in exchange for the surrendered Notes unless such
assignment is of only a portion of such assigning Bank's rights and obligations
hereunder) a new Syndicated Note to the order of such assignee and a new
Bid-Option Note to the order of such assignee. Such new Syndicated Note and
Bid-Option Note shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibits A and B
hereto, respectively.
(h) If any Reference Bank makes an assignment of all of its
Commitment and Syndicated Loans to an unaffiliated institution pursuant to
subsection (d) above, or if the Fixed Rate Loans of any Reference Bank are
repaid pursuant to Section 5.2 or 5.3, the Agent shall, with the consent of the
Required Banks and the Company, appoint another Bank to act as
Reference Bank hereunder. No assignee of any Bank shall be entitled to receive
any greater payment under SectionE5.3 than such Bank would have been entitled
to receive with respect to the rights assigned or otherwise transferred, unless
such assignment is made by reason of the provisions of Section 5.2 or 5.3
requiring such Bank to designate a different lending office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(i) Each Bank may assign to one or more banks or other financial
institutions any Bid-Option Note held by it. Any such Bank assigning a
Bid-Option Note shall for all purposes of this Agreement be deemed to be the
holder of such Note, and no assignee under this Section 11.6(i) shall as a
result of such assignment become a "Bank" under this Agreement.
(j) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Bank from its obligations
under this Agreement.
11.7 Confidentiality. Each Bank agrees that all documentation and
other information made available by the Company to such Bank under the terms of
this Agreement shall (except (a) to the extent required by legal or governmental
process or otherwise by law, or (b) if such documentation and other information
is publicly available or hereafter becomes publicly available other than by
action of such Bank, or was theretofore known to such Bank independent of any
disclosure thereto by the Company, or (c) to the extent of necessary disclosure
to such Bank's accountants, attorneys or regulators, or (d) in any litigation or
similar proceedings related to this Agreement, the Notes or any Letter of
Credit) be held in the strictest
MASCOTECH, INC. CREDIT AGREEMENT
-57-
64
confidence by such Bank and disclosed only to those officers, employees
and agents of such Bank or of any Affiliate of such Bank involved in the
administration of the credit from time to time outstanding from such Bank to
the Company or otherwise involved in servicing, maintaining or further
developing the relationship between such Bank and the Company, each of which
officers, employees and agents shall, except as permitted under this Section
11.7 generally with respect to such Bank, hold such documentation and other
information in the strictest confidence and to be used only in connection with
this Agreement; provided that (i) such Bank may disclose such documentation and
other information, and all other information that has been delivered to such
Bank by or on behalf of the Company prior to the Closing Date in connection
with such Bank's credit evaluation of the Company and its Subsidiaries, to any
other financial institution to which such Bank sells or proposes to sell a
participation or other interest in any of its Loans hereunder (or under any
other credit agreement with the Company), if such other financial institution,
prior to such disclosure, agrees for the benefit of the Company to comply with
the provisions of this Section 11.7 (including the provisions of this Section
11.7 allowing further disclosure to other financial institutions to whom a sale
of a participation or other interest is proposed), or to any Federal Reserve
Bank and (ii) such Bank may disclose the provisions of this Agreement and the
Notes and the amounts, maturities and interest rates of its Loans and the
amounts of Letters of Credit (and similar information relating to any other
credit agreement with the Company) to any purchaser or potential purchaser of
any interest of such Bank in any Loan to the Company.
11.8 Counterparts; Effectiveness of Telecopied Signatures. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart. Delivery of
a telecopied signature on this Agreement shall be as effective against the
signer as delivery of its original signature.
11.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
11.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
11.11 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or any event or condition which with notice or lapse
of time, or both, could become such a Default if such action is taken or such
condition exists.
11.12 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by the Company exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Bank
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of the Loans outstanding hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to the Company
if such principal and all other obligations of the Company to the Banks have
been paid in full.
MASCOTECH, INC. CREDIT AGREEMENT
-58-
65
11.13 Substitution of Banks.
(a) Upon five Business Days' written notice in the form of
Exhibit L delivered to the Agent and the applicable Bank, the Company may
replace any one or more of the Banks. Upon the date of its effectiveness, such
notice shall terminate the Commitment of such Bank entirely, provided that the
Company shall prepay each Loan of such Bank (if any) in full on the effective
date of such termination, together with accrued interest thereon, all amounts
due pursuant to Sections 5.3 and 5.5, all accrued facility fees with respect to
such Bank and all other amounts owing to such Bank hereunder to such effective
date.
(b) If the Company shall terminate the Commitment of any Bank
pursuant to the provisions of subsection (a) of this Section 11.13, the Company
shall designate another bank or other banks (which may be one of the Banks) (in
either case, an "Additional Bank") to be parties to this Agreement,
provided, that (i) without the consent of the Agent, the total number of
Additional Banks (other than those that were already Banks) may not exceed the
total number of Banks whose Commitments are terminated pursuant to Section
11.13(a) plus three, (ii) the amount of the Commitment of any Additional Bank
may not be less than $10,000,000, (iii) the amount of the Commitment(s) of the
Additional Bank(s) (or, if any such Additional Bank already is a Bank, the added
portion of such Bank's Commitment) shall in the aggregate equal the amount of
the Commitment so terminated and (iv) the Company or the Additional Bank, and
not the Bank being terminated pursuant to subsection (a) of this Section 11.13,
shall pay the processing and recordation fee required under Section 11.6(d)(iv).
Any Additional Bank shall become a party to this Agreement and be considered a
Bank hereunder for all purposes if (i) it shall agree in writing to be bound by
all of the terms and provisions of this Agreement, such agreement to specify the
amount of the Commitment of such Additional Bank and to be otherwise in form and
substance satisfactory to the Agent, (ii) it shall make Syndicated Loans to the
Company in principal amounts which bear the same ratio to the amounts of the
Syndicated Loans of other Banks (including other Additional Banks) then
outstanding or to be concurrently outstanding as the amount of the Commitment of
such Additional Bank bears to the then aggregate amount of the Commitments of
such other Banks (including other Additional Banks), and (iii) a copy of such
agreement and of evidence satisfactory to the Agent of the making of such Loans
shall be furnished to the Agent.
11.14 Collateral. Each of the Banks represents to the Agent and each of
the other Banks that it, in good faith, is not relying upon any "margin
stock"(as defined in Regulation U) as collateral in the extension or maintenance
of the credit provided for in this Agreement.
11.15 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
11.16 Integration and Severability. This Agreement and the Notes embody
the entire agreement and understanding among the Company, the Agent, and the
Banks, and supersede all prior agreements and understandings, relating to the
subject matter hereof and thereof. In case any one or more of the obligations
of the Company under this Agreement or any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Company shall not in any way be affected or
impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement or any Note in any other
jurisdiction.
11.17 WAIVER OF JURY TRIAL. THE BANKS, THE AGENT, THE CO-AGENTS AND THE
COMPANY, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM
MASCOTECH, INC. CREDIT AGREEMENT
-59-
66
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM RELATED HERETO
OR THERETO. NONE OF THE BANKS, THE AGENT, THE CO-AGENTS OR THE COMPANY SHALL
SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
Closing Date, notwithstanding the date and year first above written.
"COMPANY":
MASCOTECH, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Vice President-
Controller and Treasurer
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
"AGENT":
NBD BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇.
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇.
Its: First Vice President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Michigan Banking Division
Telex: 230729
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-60-
67
"CO-AGENTS":
COMERICA BANK
By: /s/
-------------------------------
Its: Account Officer
THE BANK OF NEW YORK
By: /s/
-------------------------------
Its:
---------------------------
NATIONSBANK, N.A.
By: /s/
-------------------------------
Its: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Vice President
MASCOTECH, INC. CREDIT AGREEMENT
-61-
68
"COMMITMENT": "BANKS":
$97,500,000 NBD BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Its: First Vice President
Domestic and Eurodollar
Lending Offices
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Michigan Banking Division
Telex: 230729
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-62-
69
$70,000,000 COMERICA BANK
By: /s/
-------------------------------
Its: Account Officer
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
--------------------------
Telex: 170363
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-63-
70
$55,000,000 THE BANK OF NEW YORK
By: /s/
-------------------------------
Its: Vice President
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Telex: TRT177363
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-64-
71
$45,000,000 NATIONSBANK, N.A.
By: /s/
-------------------------------
Its: Vice President
Domestic and Eurodollar
Lending Office:
NationsBank ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-65-
72
$45,000,000 BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Vice President
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-66-
73
$40,000,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/
-------------------------------
Its: Assistant Vice President
Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic and Eurodollar
Lending Office:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
---------------------------
MASCOTECH, INC. CREDIT AGREEMENT
-67-
74
$32,500,000 MICHIGAN NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Commercial Relationship
Manager
--------------------------
Domestic and Eurodollar
Lending Office:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-68-
75
$27,500,000 THE ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Manager, Corporate Banking
-----------------------------
Domestic and Eurodollar
Lending Office:
Grand Cayman Branch
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-69-
76
$25,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/
----------------------------------
Its: Vice President
-----------------------------
Domestic and Eurodollar
Lending Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
----------------------------
Telex: 177615 or 620106
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-70-
77
$25,000,000 NATIONAL CITY BANK
By: /s/
----------------------------------
Its: Vice President
-----------------------------
Domestic and Eurodollar
Lending Office:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention:___________________________
Telex: 212537
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-71-
78
$22,500,000 CIBC INC.
By: /s/
----------------------------------
Its: Director CIBC Wood Gundy
Securities Corp., As Agent
-----------------------------
Domestic and Eurodollar
Lending Office (Borrowing Notices):
Atlanta Agency
Two Paces Ferry West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Other Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Atlanta Agency
Two Paces Ferry West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Klu ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-72-
79
$22,500,000 THE FUJI BANK, LTD.
By: /s/ ▇▇▇▇▇ ▇. Chinniei
----------------------------------
▇▇▇▇▇ ▇. Chinniei
Its: Joint General Manager
-----------------------------
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Telex: 253114
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-73-
80
$17,500,000 KEYBANK, NATIONAL ASSOCIATION
By: /s/
----------------------------------
Its: Assistant Vice President
-----------------------------
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Telex:
------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-74-
81
$17,500,000 CORESTATES BANK
By: /s/
----------------------------------
Its: Vice President
-----------------------------
Domestic and Eurodollar
Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Telex: ▇▇-▇▇▇-▇▇▇▇
-----------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-75-
82
$17,500,000 FLEET NATIONAL BANK
By: /s/
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
Domestic and Eurodollar
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telex:
------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-76-
83
$15,000,000 THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: First Vice President and
Assistant General Manager
----------------------------
Domestic and Eurodollar
Lending Office:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MASCOTECH, INC. CREDIT AGREEMENT
-77-
84
EXHIBIT A
SYNDICATED NOTE
February 28, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
For value received, MASCOTECH, INC., a Delaware corporation (the
"Company"), promises to pay to the order of ___________________________________
(the "Bank"), the unpaid principal amount of each Syndicated Loan made by the
Bank to the Company pursuant to the Credit Agreement referred to below, on the
last day of the Interest Period relating to such Loan. The Company further
promises to pay interest on the aggregate unpaid principal amount of such
Syndicated Loans on the dates and at the rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in
Dollars in immediately available funds at the Agent's principal office in
Detroit, Michigan.
Presentment, demand for payment, notice of non-payment, protest and
further notice or demand of any kind in connection with this Syndicated Note
are hereby expressly waived by the Company and each endorser or guarantor
hereof.
This Syndicated Note evidences one or more Syndicated Loans made under the
Credit Agreement, dated as of February 28, 1997, as amended, supplemented or
otherwise modified from time to time (the "Credit Agreement"), by and among the
Company, the banks (including the Bank) party thereto, NBD Bank, as Agent, and
Comerica Bank, The Bank of New York, NationsBank, N.A. and Bank of America
Illinois, as Co-Agents, to which reference is hereby made for a statement of
the circumstances under which this Syndicated Note is subject to prepayment and
under which its due date may be accelerated. Capitalized terms used but not
defined in this Syndicated Note shall have the respective meanings ascribed
thereto in the Credit Agreement.
This Syndicated Note is made under, and shall be governed by and construed
in accordance with, the laws of the State of Michigan applicable to contracts
made and to be performed entirely within such State and without giving effect
to choice of law principles of such State.
MASCOTECH, INC.
By:______________________________
Its:___________________________
85
EXHIBIT B
BID-OPTION NOTE
February 28, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
For value received, MASCOTECH, INC., a Delaware corporation (the
"Company"), promises to pay to the order of ___________________________________
(the "Bank"), the unpaid principal amount of each Bid-Option Loan made by the
Bank to the Company pursuant to the Credit Agreement referred to below, on the
last day of the Interest Period relating to such Loan. The Company further
promises to pay interest on the aggregate unpaid principal amount of such
Bid-Option Loans on the dates and at the rates provided for in the Credit
Agreement. All such payments of principal and interest with respect to Dollar
Bid-Option Loans shall be made in Dollars in immediately available funds at the
Agent's principal office in Detroit, Michigan. All such payments of principal
and interest with respect to Foreign Currency Bid-Option Loans shall be made in
the currencies in which such Loans are denominated and in funds immediately
available, freely transferrable and cleared at the office or branch of the Bank
from which such Loans were made.
Presentment, demand for payment, notice of non-payment, protest and
further notice or demand of any kind in connection with this Bid-Option Note
are hereby expressly waived by the Company and each endorser or guarantor
hereof.
This Bid-Option Note evidences one or more Bid-Option Loans made under the
Credit Agreement, dated as of February 28, 1997, as amended, supplemented or
otherwise modified from time to time (the "Credit Agreement"), by and among the
Company, the banks (including the Bank) party thereto, NBD Bank, as Agent, and
Comerica Bank, The Bank of New York, NationsBank, N.A. and Bank of America
Illinois, as Co-Agents, to which reference is hereby made for a statement of
the circumstances under which this Bid-Option Note is subject to prepayment and
under which its due date may be accelerated. Capitalized terms used but not
defined in this Bid-Option Note shall have the respective meanings ascribed
thereto in the Credit Agreement.
This Bid-Option Note is made under, and shall be governed by and construed
in accordance with, the laws of the State of Michigan applicable to contracts
made and to be performed entirely within such State and without giving effect
to choice of law principles of such State.
MASCOTECH, INC.
By:______________________________
Its:___________________________
86
EXHIBIT C
NOTICE OF SYNDICATED BORROWING
[Date]
To each Bank party to the
referenced Credit Agreement
c/o NBD Bank,
as Agent for the Banks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
MASCOTECH, INC., a Delaware corporation (the "Company"), hereby requests a
Syndicated Borrowing pursuant to Section 3.2 of the Credit Agreement, dated as
of February 28, 1997, as amended, supplemented or otherwise modified (the
"Credit Agreement"), by and among the Company, the Banks and Co-Agents party
thereto, and NBD Bank, as Agent. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
The Syndicated Borrowing is to be made on _____________, 19__, in the
amount of $_______________. The Syndicated Loans comprising such Borrowing
shall be made as __________________________________ [insert either CD Rate,
Eurodollar Rate or Floating Rate] Loans. [The Interest Period shall be
___________________ [insert permitted Interest Period for a CD Rate Borrowing
or Eurodollar Rate Borrowing].] Such Syndicated Borrowing shall be evidenced
by the Company's Syndicated Notes.
MASCOTECH, INC.
By:__________________________________
Its:______________________________
87
EXHIBIT D
REQUEST FOR LETTER OF CREDIT ISSUANCE
[Date]
To each Bank party to the
referenced Credit Agreement
c/o NBD Bank,
as Agent for the Banks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
MASCOTECH, INC., a Delaware corporation (the "Company"), hereby requests a
Letter of Credit Issuance pursuant to Section 3.3 of the Credit Agreement,
dated as of February 28, 1997, as amended, supplemented or otherwise modified
(the "Credit Agreement"), by and among the Company, the Banks and Co-Agents
party thereto, and NBD Bank, as Agent. Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
The Letter of Credit is to be issued on ________________, 19__, shall be
for the account of ________*, shall be in the maximum amount of $_____________,
shall be to and for the benefit of __________________, shall have a stated
expiry date of _______________, 19__, and shall contain the further terms and
conditions set forth in the attached letter of credit application of the Agent.
MASCOTECH, INC.
By:______________________________
Its:__________________________
________________
* Specify the Company or identify a Consolidated Subsidiary.
88
EXHIBIT E
BID-OPTION QUOTE REQUEST
[Date]
NBD Bank,
as Agent for the Banks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
MASCOTECH, INC., a Delaware corporation (the "Company"), hereby requests
offers to make Bid-Option Loans comprising the Bid-Option Borrowing(s)
described below pursuant to Section 3.4(b) of the Credit Agreement, dated as of
February 28, 1997, as amended, supplemented or otherwise modified (the "Credit
Agreement"), by and among the Company, the Banks and Co-Agents party thereto,
and NBD Bank, as Agent. Capitalized terms used but not defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement.
Date of Bid-Option Borrowing(s): ________, 19__
Type of Bid-Option Borrowing(s): [Dollar: ____________ [Absolute Rate]
[Eurodollar Rate] [Foreign Currency: _____ [desired currency]]
Aggregate Amount of each Bid-Option Borrowing: (a) _______________*
(b) _______________
(c) _______________
Interest Period: (a) ______________**
(b) ______________
(c) ______________
MASCOTECH, INC.
By:_______________________________________
Its:___________________________________
*Must be (a) $25,000,000 or a larger multiple of $5,000,000, in the case of
Dollar Bid-Option Borrowings, or (b) not less than the Dollar Equivalent of
$5,000,000, in the case of Foreign Currency Bid-Option Borrowings.
**Must comply with the definition of the term "Bid-Option Interest Period."
89
EXHIBIT F
INVITATION FOR BID-OPTION QUOTES
[Date]
To: [Name of Bank]
Attention: ____________________
Reference is made to the Credit Agreement, dated as of February 28, 1997,
as amended, supplemented or otherwise modified (the "Credit Agreement"), by and
among MASCOTECH, INC., a Delaware corporation, the Banks and Co-Agents party
thereto, and NBD Bank, as Agent. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.4(c) of the Credit Agreement, NBD Bank, as Agent, is
pleased on behalf of the Company to invite you to submit Bid-Option Quotes to
the Company for the Bid-Option Borrowing(s) described below.
Date of Bid-Option Borrowing(s): ________, 19__
Type of Bid-Option Borrowing(s): [Dollar: __________ [Absolute Rate]
[Eurodollar Rate] [Foreign Currency: _____ [desired currency]]
Aggregate Amount of Each
Bid-Option Borrowing: Interest Period:
(a) ____________________ (a) ________________
(b) ____________________ (b) ________________
(c) ____________________ (c) ________________
Please respond to this invitation by no later than [9:00 a.m.]* [10:00
a.m.]** [2:00 p.m.]*** (Detroit time) on _________________, 19__. ****
NBD BANK, as Agent
By: ______________________________________
Its: _________________________________
* Absolute Rate Dollar Bid-Option Borrowings.
** Eurodollar Rate Dollar Bid-Option Borrowings.
*** Foreign Currency Bid-Option Borrowings.
**** The proposed date of Borrowing in the case of Absolute Rate Dollar
Bid-Option Borrowings. The fourth Business Day prior to the proposed date
of Borrowing in the case of Eurodollar Rate Dollar Bid-Option Loans. The
third Business Day prior to the proposed date of Borrowing in the case of
Foreign Currency Bid-Option Borrowings.
90
EXHIBIT G
BID-OPTION QUOTE
[Date]
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Michigan Banking Division
Reference is made to the Credit Agreement, dated as of February 28, 1997,
as amended, supplemented or otherwise modified, by and among MASCOTECH, INC., a
Delaware corporation, the Banks and Co-Agents party thereto, and NBD Bank, as
Agent. Capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto in such Agreement.
In response to your Invitation for Bid-Option Quotes dated _____, 19__,
_________________________ (the "Bank"), hereby makes the following offer[s] to
make [a] Bid-Option Loan[s]:
1. Quoting Bank: ____________________________
Contact Person: _________________________
2. Date of proposed Borrowing: __________, 19__(1)
3. Quotes:
Type of Bid-Option
Loans: Absolute Rate
Dollar, Eurodollar Bid-Option Absolute
Rate Dollar or Foreign Rate or Bid-Option
Currency (also specify Principal Eurodollar Rate Interest
the foreign currency)(2) Amount(3) Margin(4) Period(5)
----------------------- --------- ------------------- -----------
91
(a) _______________________ _________ ___________________ ___________
(b) _______________________ _________ ___________________ ___________
(c) _______________________ _________ ___________________ ___________
4. The aggregate amount of Bid-Option Loans which may be accepted by the
Company pursuant to this Bid-Option Quote shall not exceed $_________.6
The Bank acknowledges and agrees that this Bid-Option Quote (a) is
irrevocable and (b) subject to the terms and conditions of the Credit
Agreement, obligates it to make a Bid-Option Loan for which any quote is
accepted, in whole or in part.
[Name of Bank]
By: ______________________________________
Its: _________________________________
(1). As specified in the related Invitation for Bid-Option Quotes.
(2). As specified in the related Invitation for Bid-Option Quotes.
(3). The Dollar Equivalent of the principal amount (a) must be (i) in the case
of Dollar Bid-Option Loans, $5,000,000 or a larger multiple thereof, or (2)
in the case of Foreign Currency Bid-Option Loans, not less than $1,000,000,
and (b) may not exceed the Dollar Equivalent of the aggregate amount of the
related Bid-Option Borrowing specified in the related Invitation for
Bid-Option Quotes.
(4). Specify rate of interest per annum (rounded up to the nearest 1/10,000th of
1%) or applicable margin, which may be positive or negative, expressed as a
percentage (rounded up to the nearest 1/10,000th of 1%), as the case may
be.
(5). As specified in the related Invitation for Bid-Option Quotes.
(6). Must be at least equal to the minimum amount specified in note 3 above.
92
EXHIBIT H
NOTICE OF DISBURSEMENT OF
FOREIGN CURRENCY BID-OPTION LOAN
[Date]
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Reference is made to the Credit Agreement, dated as of February 28,
1997, as amended, supplemented or otherwise modified (the "Credit Agreement"),
by and among MASCOTECH, INC., a Delaware corporation, the Banks and Co-Agents
party thereto, and NBD Bank, as Agent. Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 3.5(c) of the Credit Agreement, ________________
hereby notifies you of its disbursement of a Foreign Currency Bid-Option Loan
on ______________, 19___. Such Loan is denominated in __________ [specify
currency] and is in the original principal amount of ___________.* The
Interest Period applicable to such Loan is _______________.
[Name of Bank]
By: ______________________________________
Its: _________________________________
* Specify amount in the currency in which the Loan is denominated.
93
EXHIBIT I
NOTICE OF RECEIPT OF
FOREIGN CURRENCY BID-OPTION LOAN PAYMENT
[Date]
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Reference is made to the Credit Agreement, dated as of February 28, 1997,
as amended, supplemented or otherwise modified (the "Credit Agreement"), by and
among MASCOTECH, INC., a Delaware corporation, the Banks and Co-Agents party
thereto, and NBD Bank, as Agent. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 4.4(a) of the Credit Agreement, _______________ hereby
notifies you of its receipt of payment in the amount of __________* of the
principal of the Foreign Currency Bid-Option Loan disbursed by it on
___________, 19__ in the original principal amount of __________*. After
application of such payment, the outstanding principal balance of such Loan is
_____________.
[Name of Bank]
By: ______________________________________
Its: _________________________________
* Specify amount in the currency in which the Loan is denominated.
94
EXHIBIT K
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of February 28, 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among MASCOTECH, INC., the Banks and Co-Agents party thereto, and
NBD BANK, as agent for the Banks (in such capacity, the "Agent"). Capitalized
terms used but not defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns (without recourse) to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement (other than the Bid-Option Loans and Bid-Option Notes) as of the
Effective Date (as hereinafter defined) equal to the percentage interest
specified on Schedule 1 of all of the Assignor's outstanding rights and
obligations under the Credit Agreement. After giving effect to such sale and
assignment, the Assignee's Commitment and the amount of the Syndicated Loans
owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or any instrument or other document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any instrument or other document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the performance or observance by the Company of
any of its obligations under the Credit Agreement or any instrument or other
document furnished pursuant thereto; and (iv) [attaches the Syndicated Note
held by the Assignor and] requests that the Agent arrange for the Company to
issue a new Syndicated Note and a new Bid-Option Note payable to the order of
the Assignee.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 6.6 thereof and copies of the financial statements delivered pursuant
to Section 7.1 of the Credit Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, any Co-Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes the
Agent to take
95
such action as agent on its behalf and to exercise such powers and discretion
and discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with thehe
terms of the Credit Agreement all of the obligations that are required to be it
performed by it as a Bank; and (v) if the Assignee is organized under the laws
of a jurisdiction outside of the United States, attaches the forms prescribedhe
by the Internal Revenue Service of the United States certifying as to theee's
Assignee's status for purposes of determining exemption from United Statesg
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes and such other documents as are necessary to
indicate that all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon consent hereto by the Company and the Agent and such acceptance
and recording by the Agent, as of the Effective Date, (i) the Assignee shall be
a party to the Credit Agreement and have the rights and obligations of a Bank
thereunder with a Commitment in the amount indicated for the Assignee on
Schedule 1 and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement
and the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, commitment fees and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and
the Syndicated Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
Schedule 1 to this Assignment and Acceptance by telecopier shall be effective
as delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1
to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
96
EXHIBIT L
NOTICE OF SUBSTITUTION OF BANKS
[Date]
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
[Terminated Bank]
___________________________
___________________________
Attention: ________________
Reference is made to the Credit Agreement, dated as of February 28, 1997,
as amended, supplemented or otherwise modified (the "Credit Agreement"), by and
among MASCOTECH, INC., a Delaware corporation, the Banks and Co-Agents party
thereto, and NBD Bank, as Agent. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 11.13(a) of the Credit Agreement, the Company hereby
terminates the Commitment of ___________________ (the "Terminated Bank")
effective _____________, 19__.* On such date, the Company shall prepay each
Loan of such Bank in full, together with accrued interest thereon, all amounts
due pursuant to Sections 5.3 and 5.5 of the Credit Agreement, all accrued
facility fees with respect to such Bank and all other amounts owing to such
Bank under the Credit Agreement to such date.
Pursuant to Section 11.13(b) of the Credit Agreement, the Company hereby
designates ______________ [and __________] to replace the Terminated Bank.
MASCOTECH, INC.
By: ______________________________________
Its: __________________________________
* Must be not less than five Business Days after notice.
97
EXHIBIT M
February __, 1997
To the Banks, Co-Agents and Agent
party to the Credit Agreement described
herein, in care of
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of February 28, 1997
(the "Credit Agreement"), by and among MASCOTECH, INC., a Delaware corporation,
the banks (the "Banks") and the co-agents (the "Co-Agents") party thereto, and
NBD Bank, as agent (in such capacity, the "Agent") for the Banks. I am Vice
President and Corporate Counsel for the Company, and in the capacity of counsel
for the Company I have been requested by the Company to give my opinion pursuant
to Section 8.3(a) of the Credit Agreement. For purposes of this opinion, the
terms used in this opinion which are not defined herein shall have the
respective meanings set forth in the Credit Agreement.
I have examined the Credit Agreement and the Notes, the Convertible
Subordinated Debentures referred to in the definition of the term "Subordinated
Debt" in the Credit Agreement and the indenture governing the issuance of such
Convertible Subordinated Debentures (the "Subordinated Debt Documents"), and
certified copies of the Company's certificate of incorporation, by-laws and
board of directors' resolutions authorizing the Company's participation in the
transactions contemplated by the Credit Agreement. I have also examined copies
of all such documents and records of the Company and all such other documents
and records, and have made such investigations of law, as I have deemed
necessary and relevant as a basis for my opinion.
Based upon the foregoing, it is my opinion that:
(a) The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware and is duly authorized to
do business and is in good standing in the State of Michigan.
(b) The Company has all requisite corporate power and authority to conduct
its business substantially as now being conducted and to own its properties.
(c) The Company has full power, authority and legal right to execute and
deliver
98
To the Banks, Co-Agents and Agent
February __, 1997
Page 2
the Credit Agreement and the Notes, to perform and observe the terms and
provisions thereof, and to borrow thereunder. The execution, delivery and
performance by the Company of its obligations under the Credit Agreement and the
Notes and the borrowings thereunder have been duly authorized by the proper
corporate proceedings and do not contravene any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
any Subsidiary, or any order of any court, regulatory body or arbitral tribunal
or any judgment, order or decree, or, to my knowledge after due inquiry, any
agreement or instrument, binding on the Company or any Subsidiary, or, to my
knowledge after due inquiry, result in the creation of any lien, charge or
encumbrance upon any of their respective property or assets pursuant to any
agreement or instrument to which any of them is a party or binding upon any of
them.
(d) The Credit Agreement and the Notes constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms.
(e) There are, to my knowledge after due inquiry, no suits, proceedings or
actions at law or in equity or by or before any governmental commission, board,
bureau, or other administrative agency pending or threatened against or
affecting the Company or any Subsidiary, (i) in which there is a reasonable
possibility of an adverse decision which is likely to materially and adversely
affect the financial condition or business of the Company and its Subsidiaries,
taken as a whole, or (ii) which will in any manner affect the enforceability or
validity of the Credit Agreement or any Note.
(f) No approval, consent or authorization of or filing or registration with
any state or federal agency or regulatory authority is necessary for the
execution or delivery by the Company of the Credit Agreement or the issuance of
the Notes, for the validity or enforceability of the Credit Agreement or the
Notes, or for the performance by the Company of any of the terms or conditions
thereof or for any borrowing by the Company thereunder.
(g) The Notes represent Senior Indebtedness as that term is defined in the
Subordinated Debt Documents.
The opinion expressed in paragraph (d) above is subject to the
qualifications that the enforcement of the rights and remedies set forth in the
Credit Agreement and the Notes is subject to the effect of applicable
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally, and to general principles of equity, whether
applied in a proceeding at law or in equity.
99
To the Banks, Co-Agents and Agent
February __, 1997
Page 3
Very truly yours,
▇▇▇▇▇ ▇. Liner
Vice President and Corporate Counsel
MascoTech, Inc.
100
EXHIBIT N
February 28, 1997
To the Banks, Co-Agents and Agent
party to the Credit Agreement described
herein, in care of
NBD Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
RE: MASCOTECH, INC. CREDIT AGREEMENT
DATED AS OF FEBRUARY 28, 1997
Ladies and Gentlemen:
We have acted as special counsel for the Agent (as defined below) in
connection with the Credit Agreement, dated as of February 28, 1997 (the
"Credit Agreement"), by and among MascoTech, Inc. (the "Company"), the banks
(the "Banks") and co-agents (the "Co-Agents") party thereto, and NBD Bank, as
agent (in such capacity, the "Agent") for the Banks, providing, among other
things, for the extension to the Company of a bank credit in the principal sum
of the Dollar Equivalent of $575,000,0000. Capitalized terms not otherwise
defined herein are used with the respective meanings ascribed thereto in the
Credit Agreement.
In connection with this opinion we have examined: (a) a copy of the
Certificate of Incorporation of the Company certified to _______ __, 1997 by
the Secretary of State of Delaware and to ________ __, 1997 by an officer of
the Company, (b) a copy of the Bylaws of the Company certified to _______ __,
1997 by an officer of the Company, (c) copies of Certificates of Good Standing
of the Company under the laws of the States of Delaware and Michigan dated,
respectively, _________ __, 1997 and _____________ __, 1997, (d) a copy of
resolutions of the Board of Directors of the Company authorizing the execution,
delivery and performance of the Credit Agreement and the Notes, certified as
true and correct by an officer of the Company, (e) a certificate of incumbency
and specimen signatures of authorized officers of the Company, in the form
being delivered to the Agent pursuant to Section 8.3(d) of the Credit
Agreement, (f) a certificate of a senior officer of the Company, in the form
being delivered to the Agent pursuant to Section 8.3(e) of the Credit
Agreement, (g) a certificate of the chief ____ officer of the Company, in the
form being delivered to the Agent pursuant to Section 8.3(g) of the Credit
Agreement, and (h) the Credit Agreement and the Notes. We have also examined
the opinion of ▇▇. ▇▇▇▇▇ ▇. Liner, Vice President and Corporate Counsel of the
Company, dated February __, 1997, addressed to you and delivered to the Agent
pursuant to Section 8.3(a) of the Credit Agreement. We have made no
independent investigation of any of the foregoing matters
101
To the Banks, Co-Agents and Agent
September 2, 1997
Page 2
or of any other matters.
Based solely on such information, it is our opinion that: (a) the
documents referred to above and delivered by the Company are substantially
responsive to the requirements of the Credit Agreement; and (b) while we have
not independently considered the matters covered by the opinion of Mr. Liner
furnished pursuant to Section 8.3(a) of the Credit Agreement to the extent
necessary to enable us to express the conclusions stated therein, such opinion
is in substantially acceptable legal form and is substantially responsive to
the requirements of the Credit Agreement.
Very truly yours,
102
EXHIBIT O
TERMS OF SUBORDINATION
These terms of subordination refer to the Credit Agreement dated as of
February 28, 1997 by and among MascoTech, Inc., the banks party thereto, the
co-agents referred to therein and NBD Bank, as agent.
In addition to Debt of the Company which qualifies as Subordinated
Debt pursuant to clauses (b) and (c) of the definition of Subordinated Debt in
the Credit Agreement, Subordinated Debt under the Credit Agreement shall also
include, without duplication, all Indebtedness (as hereinafter defined)
constituting Debt now outstanding or hereafter created, issued, guaranteed,
incurred or assumed by the Company which is subordinate to the payment of
principal, premium, if any, and interest on the Notes by provisions not less
favorable in any material respect to the holders of the Notes than the
provisions (a) of the Indenture dated as of November 1, 1986, by and between the
Company and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Trustee, as amended
and supplemented by Agreement of Appointment and Acceptance of Successor Trustee
dated as of August 4, 1994 among MascoTech, Inc., ▇▇▇▇▇▇ Guaranty Trust Company
of New York and The First National Bank of Chicago and the Supplemental
Indenture dated as of August 5, 1994 between MascoTech, Inc. and The First
National Bank of Chicago as Trustee a copy of which has been supplied to the
Agent and in the form in which it has been supplied to the Agent prior to the
Closing Date, and any Indebtedness of the Company that may be issued thereunder,
would be to the holders of "Senior Indebtedness", as that term is defined in
such Indenture, or (b) described below:
1. Defined Terms.
All capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. All the following
terms shall have the meanings described below:
"Article" means Sections 1 through 13, inclusive, of this Exhibit O.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Cash Equivalents" means, at any time: (i) any evidence of Indebtedness
with a
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maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) certificates of deposit, time deposits,
Eurodollar time deposits and bankers' acceptances with a maturity of 180 days or
less of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of 180 days or less issued
by a corporation that is not an Affiliate of the Company organized under the
laws of any state of the United States or the District of Columbia and rated at
least A-1 by S&P or at least P-1 by Moody's or at least an equivalent rating
category of another nationally recognized securities rating agency; and (iv)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the government of the
United States of America or issued by any agency thereof and backed by the full
faith and credit of the United States of America, in each case maturing within
180 days from the date of acquisition; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
"Credit Agreement" means (a) the Credit Agreement dated as of February __,
1997, by and among the Company, the banks party thereto, the co-agents referred
to therein and NBD Bank, as agent (the "MascoTech Credit Agreement"), together
with all amendments, documents and instruments from time to time delivered in
connection with the MascoTech Credit Agreement (including, without limitation,
any guaranty agreements and security documents), and as the MascoTech Credit
Agreement and such other agreements, documents and instruments may be amended,
amended and restated, renewed, extended, restructured, supplemented or otherwise
modified from time to time, and (b) any credit agreement, loan agreement, note
purchase agreement, indenture or other agreement, document or instrument
refinancing, refunding or otherwise replacing the MascoTech Credit Agreement or
any other agreement deemed a Credit Agreement under clause (a) hereof or this
clause (b), whether or not with the same agent, trustee, representative lenders
or holders, and irrespective of any changes in the terms and conditions thereof.
Without limiting the generality of the foregoing, the term "Credit Agreement"
shall include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement, including any
agreement (i) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding or deleting borrowers or guarantors
thereunder, so long as borrowers and issuers include one or more of the Company
and its Subsidiaries and their respective successors and assigns or (iii)
increasing the amount of Indebtedness incurred thereunder or available to be
borrowed thereunder.
"Designated Senior Indebtedness" means (a) all Senior Indebtedness under
the
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Credit Agreement and (b) any other Senior Indebtedness which is specifically
designated by the Company in the instrument evidencing such Senior Indebtedness
as "Designated Senior Indebtedness".
"Indebtedness" means, with respect to any Person, without duplication, (a)
all liabilities of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities incurred in the ordinary course of business, but including,
without limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit, banker's acceptances or other similar
credit transaction, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all capitalized lease
obligations of such Person, (e) all Indebtedness referred to in the preceding
clauses (a) to (d) of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligations being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of Indebtedness referred to in this
definition by such Person, (g) all redeemable capital stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
currency exchange contracts, interest rate swaps and other interest rate
protection obligations of such Person and i) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) through (h) above. For purposes hereof, (x) the
"maximum fixed repurchase price" of any redeemable capital stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such redeemable capital stock as if such redeemable capital stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant hereto, and if such price is based upon, or measured by, the fair
market value of such redeemable capital stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
redeemable capital stock, and (y) Indebtedness is deemed to be incurred pursuant
to a revolving credit facility each time an advance is made thereunder.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Non-Payment Default" means any event (other than a Payment Default) the
occurrence of which entitles one or more Persons to accelerate the maturity of
any
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Designated Senior Indebtedness.
"Payment Blockage Period" has the meaning set forth in Section 4.
"Payment Default" means any default in the payment of principal of (or
premium, if any, on) or interest on Designated Senior Indebtedness beyond any
applicable grace period with respect thereto.
"S & P" means Standard and Poor's Corporation and its successors.
"Securities" means any instrument or other document evidencing any of the
Subordinated Indebtedness at any time.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on any Indebtedness of the Company, whether outstanding on the date hereof or
hereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. Without limiting the
generality of the foregoing, "Senior Indebtedness" shall also include all
obligations of the Company, whether outstanding on the date hereof or thereafter
created, incurred or assumed, under or in respect of the Credit Agreement,
whether for principal, interest (including, without limitation, interest
accruing after the filing of a petition initiating any proceeding under any
state or federal bankruptcy law whether or not such interest is an allowable
claim), reimbursement of amounts drawn under letters of credit issued or
arranged for pursuant thereto, guarantees in respect thereof, and all charges,
fees, expenses (including reasonable fees and expenses of counsel) and other
amounts in respect of the Credit Agreement incurred by or owing to the Banks,
the Co-Agents or the Agent under the Credit Agreement or their representative,
agent or trustee, and all other obligations of the Company incurred under or in
respect of the Credit Agreement, including, without limitation, any interest
rate protection obligations and in respect of premiums, indemnities or
otherwise, and all indebtedness under the Credit Agreement which is disallowed,
avoided or subordinated pursuant to Section 548 of the Federal Bankruptcy Code
or any applicable state fraudulent conveyance law. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (a) Indebtedness evidenced by
the Securities, (b) Indebtedness that is expressly subordinate or junior in
right of payment to any Senior Indebtedness of the Company, (c) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of the Federal Bankruptcy Code, is by its terms without recourse to the Company,
(d) any repurchase, redemption or other obligation in respect of redeemable
capital stock, (e) to the extent it might constitute Indebtedness, amounts owing
for goods, materials or services purchased in the ordinary course of business or
consisting of trade payables or other current liabilities (other than any
current liabilities owing under the Credit Agreement or the current portion
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of any long-term Indebtedness which would constitute Senior Indebtedness but for
the operation of this clause (e)), (f) to the extent it might constitute
Indebtedness, amounts owed by the Company for compensation to employees or for
services rendered to the Company, (g) to the extent it might constitute
Indebtedness, any liability for federal, state, local or other taxes owed or
owing by the Company, (h) Indebtedness of the Company to a Subsidiary of the
Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries and (i) that portion of any Indebtedness (other than owing pursuant
to the Credit Agreement), which at the time of issuance is issued in violation
of the Subordinated Indebtedness.
"Subordinated Indebtedness" means all indebtedness, obligations and
liabilities of the Company or any of its Subsidiaries to any of the holders of
the Securities issued pursuant hereto, whether now existing or hereafter
arising, including without limitation any extensions, renewals, increases or
other modifications thereof, all principal, interest and fees and costs under or
in any way arising therefrom, and all indebtedness, obligations and liabilities
of the Company or any of its Subsidiaries to any such holder under the Federal
Bankruptcy Code or under any similar state law.
"Subordinated Indenture" means the indenture pursuant to which the
Securities are issued.
"Trustee" means any Person acting as the trustee for the holders of the
Securities and any successor trustee.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended), as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
2. Subordinated Indebtedness Subordinated to Senior Indebtedness.
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The Company covenants and agrees, and each holder of any Subordinated
Indebtedness, by its acceptance thereof, likewise covenants and agrees, for the
benefit of the holders, from time to time, of Senior Indebtedness that, to the
extent and in the manner hereinafter set forth, the Subordinated Indebtedness is
hereby expressly made subordinate and subject in right of payment as provided
herein to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness.
3. Payment over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or its assets, or
(b) any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents of all amounts due on or in respect
of all Senior Indebtedness, or provision shall be made for such payment, before
the holders of any Subordinated Indebtedness are entitled to receive any payment
or distribution of any kind or character (other than any payment or distribution
in the form of equity securities or subordinated securities of the Company or
any successor obligor with respect to the Senior Indebtedness provided for by a
plan of reorganization or readjustment that, in the case of any such
subordinated securities, are subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding to substantially the same
extent as, or to a greater extent than, the Subordinated Indebtedness is so
subordinated as provided in this Article (such equity securities or subordinated
securities hereinafter being "Permitted Junior Securities")); and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than a payment or
distribution in the form of Permitted Junior Securities), by set-off or
otherwise, to which the holders of the Subordinated Indebtedness or the Trustee
would be entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in
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full in cash or Cash Equivalents of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or any holder of any Subordinated Indebtedness shall
have received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, in respect of the
Subordinated Indebtedness before all Senior Indebtedness is paid in full or
payment thereof provided for in cash or Cash Equivalents, then and in such event
such payment or distribution (other than a payment or distribution in the form
of Permitted Junior Securities) shall be received and held in trust for the
benefit of the holders of Senior Indebtedness and paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full
in cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in the
Subordinated Indenture shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purpose of this
Article if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in the Subordinated Indenture under which the
Securities are issued.
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4. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 3 shall be applicable, upon (1) the occurrence
of a Payment Default and (2) receipt by the Trustee of written notice of such
occurrence, then no payment or distribution of any assets of the Company of any
kind or character shall be made by the Company on account of the Subordinated
Indebtedness or on account of the purchase or redemption or other acquisition of
any Subordinated Indebtedness unless and until such Payment Default shall have
been cured or waived in writing or shall have ceased to exist or such Senior
Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents, after which the Company shall resume making any and all required
payments in respect of the Subordinated Indebtedness, including any missed
payments.
(b) Unless Section 3 shall be applicable, upon (1) the occurrence
of a Non-Payment Default and (2) receipt by the Company or the Trustee from the
representative of holders of such Designated Senior Indebtedness of written
notice of such occurrence, then no payment or distribution of any assets of the
Company of any kind or character shall be made by the Company on account of any
Subordinated Indebtedness or on account of the purchase or redemption or other
acquisition of any Subordinated Indebtedness for a period ("Payment Blockage
Period") commencing on the earlier of the date of receipt by the Company or the
date of receipt by the Trustee of such notice from such representative unless
and until (subject to any blockage of payments that may then be in effect under
paragraph (a) of this Section) (x) more than 179 days shall have elapsed since
receipt of such written notice by the Company or the Trustee, whichever was
earlier, (y) such Non-Payment Default shall have been cured or waived in writing
or shall have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or (z) such Payment Blockage Period shall have been terminated
by written notice to the Company or the Trustee from such representative
initiating such Payment Blockage Period, after which, in the case of clause (x),
(y) or (z), the Company shall resume making any and all required payments in
respect of any Subordinated Indebtedness, including any missed payments.
Notwithstanding any other provision of this Agreement, only one Payment Blockage
Period may be commenced within any consecutive 360-day period, and no event of
default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period
initiated by or on behalf of such Designated Senior Indebtedness shall be, or be
made, the basis for the commencement of a second Payment Blockage Period whether
or not within a period of 360 consecutive days unless such event of default
shall have been cured or waived for a period of not less than 90 consecutive
days subsequent to the commencement of such initial Payment Blockage Period (it
being acknowledged that any subsequent action, or any breach of any financial
covenant for a period commencing after the date of commencement of such Payment
Blockage Period, that, in either case, would give rise to a Non-Payment
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Default pursuant to any provision under which a Non-Payment Default previously
existed or was continuing shall constitute a new Non-Payment Default for this
purpose; provided that, in the case of a breach of a particular financial
covenant, the Company shall have been in compliance for at least one full period
of not less than 90 consecutive days commencing after the date of commencement
of such Payment Blockage Period). In no event will a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the Trustee of the notice
and there must be a 181-consecutive day period in any 360-day period during
which no Payment Blockage Period is in effect.
(c) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the holder of any Subordinated
Indebtedness prohibited by the foregoing provisions of this Section, then and in
such event such payment shall be received and held in trust for the benefit of
the holders of Senior Indebtedness and paid over and delivered forthwith to the
Company.
5. Payment Permitted If No Default.
Nothing contained herein or in any instrument evidencing the
Subordinated Indebtedness shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 3 or under the conditions
described in Section 4, from making payments at any time of principal of (and
premium, if any, on) or interest on the Subordinated Indebtedness.
6. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Indebtedness, the holders of the Subordinated Indebtedness shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any, on) and
interest on the Subordinated Indebtedness shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the holders of the
Subordinated Indebtedness or the Trustee would be entitled except for the
provisions in this Article, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the holders of the Subordinated
Indebtedness, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
7. Provisions Solely to Define Relative Rights.
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The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the holders of the Subordinated
Indebtedness on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in the Subordinated
Indenture or in any Securities is intended to or shall (a) impair, as between
the Company and the holders of the Subordinated Indebtedness, the obligation of
the Company, which is absolute and unconditional, to pay to the holders of the
Securities the principal of (and premium, if any, on) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under the Subordinated Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness.
8. Trustee to Effectuate Subordination.
Each holder of any Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
9. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of the Subordinated Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a)
of this Section 9, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the holders of
the Securities, without incurring responsibility to the holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the holders of the Subordinated
Indebtedness to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
or payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange,
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release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for
the collection of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company or any other Person.
10. Notice to Trustee
(a) The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of the Subordinated Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts, subject to Sections 3.15(a) through 3.15(d) of the Trust Indenture
Act of 1939, exist; provided, however, that, if the Trustee shall not have
received the notice as provided for in this Section 10 at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any, on) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
(b) The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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11. Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to Sections 3.15(a) through 3.15(d) of the
Trust Indenture Act of 1939, and the holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which any insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
12. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in the Subordinated Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall
apply to the fees and expenses, and other claims of and payments to, the Trustee
in its capacity as trustee under the Subordinated Indenture.
13. No Suspension of Remedies.
Nothing in this Article shall limit the right of the Trustee or the
holders of Securities to take any action to accelerate the maturity of the
Securities or to pursue any rights or remedies hereunder or under applicable
law, provided that the right to receive payment on the Subordinated Indebtedness
is subject to the provisions of Sections 3 and 4.
14. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under the
Subordinated Indenture by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of the Subordinated Indenture and
not in violation of this Article for the payment of principal of (and premium,
if any, on) and interest on the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article, and none of the holders of the Subordinated Indebtedness
shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness or any other creditor of the Company.
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SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest of Assignor's Commitment
assigned: $____________%
Assignee's Commitment: $_____________
Aggregate outstanding principal amount
of Syndicated Loans assigned: $_____________
Effective Date (if other than date of
acceptance by Agent): ______________
[NAME OF ASSIGNOR], as Assignor
By ______________________________
Its:
Dated: ____________________, 19__
[NAME OF ASSIGNEE], as Assignee
By ______________________________
Its:
Domestic Lending Office:
Eurodollar Lending Office:
Consented to and Consented to this ___ day
accepted this ___ day of ___________________, 19__
of ____________, 19__
NBD Bank, as Agent MascoTech, Inc.
By: ___________________________ By: _____________________________
Its: ______________________ Its: ________________________
115
SCHEDULE ▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Industrial Development Revenue Bonds (ND Tech
Project)
116
SCHEDULE 1
Applicable Margin for Eurodollar Rate Syndicated Loans and Letters of Credit
APPLICABLE MARGIN Interest Coverage Interest Coverage Interest Coverage
FOR EURODOLLAR RATE Ratio equal to or Ratio equal to or Ratio equal to or Interest Coverage
SYNDICATED LOANS Interest Coverage greater than 2.00:1.00 greater than greater than Ratio equal to or
AND LETTERS OF Ratio less than and less than 3.00:1.00 and less 4.25:1.00 and less greater than
CREDIT CHART 2.00:1.00 3.00:1.00 than 4.25:1.00 than 5.25:1.00 5.25:1.00
Senior Leverage
Ratio greater than
1.15:1.00 1.00% 0.75% 0.625% 0.50% 0.40%
Senior Leverage
Ratio equal to or
less than 1.15:1.00
and greater than
0.80:1.00 0.80% 0.625% 0.50% 0.40% 0.325%
Senior Leverage
Ratio equal to or
less than 0.80:1.00
and greater than
0.55:1.00 0.675% 0.50% 0.40% 0.325% 0.25%
Senior Leverage
Ratio equal to or
less than 0.55:1.00 0.55% 0.40% 0.325% 0.25% 0.25%
PAGE 1 of 3
117
SCHEDULE 1 (CONTINUED)
Applicable Margin for CD Rate Loans
Interest Coverage Interest Coverage Interest Coverage
Ratio equal to or Ratio equal to or Ratio equal to or Interest Coverage
APPLICABLE MARGIN Interest Coverage greater than 2.00:1.00 greater than greater than Ratio equal to or
FOR CD RATE LOANS Ratio less than and less than 3.00:1.00 and less 4.25:1.00 and less greater than
CHART 2.00:1.00 3.00:1.00 than 4.25:1.00 than 5.25:1.00 5.25:1.00
Senior Leverage
Ratio greater than
1.15:1.00 1.125% 0.875% 0.750% 0.625% 0.525%
Senior Leverage
Ratio equal to or
less than 1.15:1.00
and greater than
0.80:1.00 0.925% 0.750% 0.625% 0.525% 0.450%
Senior Leverage
Ratio equal to or
less than 0.80:1.00
and greater than
0.55:1.00 0.800% 0.625% 0.525% 0.450% 0.375%
Senior Leverage
Ratio equal to or
less than 0.55:1.00 0.675% 0.525% 0.450% 0.375% 0.375%
PAGE 2 of 3
118
SCHEDULE 1 (CONTINUED)
Applicable Margin for Facility Fees
Interest Coverage Interest Coverage Interest Coverage
Ratio equal to or Ratio equal to or Ratio equal to or Interest Coverage
APPLICABLE MARGIN Interest Coverage greater than 2.00:1.00 greater than greater than Ratio equal to or
FOR FACILITY FEES Ratio less than and less than 3.00:1.00 and less 4.25:1.00 and less greater than
CHART 2.00:1.00 3.00:1.00 than 4.25:1.00 than 5.25:1.00 5.25:1.00
Senior Leverage
Ratio greater than
1.15:1.00 0.25% 0.225% 0.225% 0.20% 0.175%
Senior Leverage
Ratio equal to or
less than 1.15:1.00
and greater than
0.80:1.00 0.225% 0.225% 0.20% 0.175% 0.15%
Senior Leverage
Ratio equal to or
less than 0.80:1.00
and greater than
0.55:1.00 0.225% 0.20% 0.175% 0.15% 0.125%
Senior Leverage
Ratio equal to or
less than 0.55:1.00 0.20% 0.175% 0.150% 0.125% 0.125%
PAGE 3 of 3