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EXHIBIT 10.a
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5-YEAR REVOLVING CREDIT AGREEMENT
dated as of June 28, 2000
among
ARVINMERITOR, INC.,
MERITOR AUTOMOTIVE CANADA, INC.
ARVIN FINANCE IRELAND
MERITOR HEAVY VEHICLE SYSTEMS LIMITED,
as the initial Foreign Subsidiary Borrowers,
THE OTHER FOREIGN SUBSIDIARY BORROWERS
FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BANK ONE, NA
(Main Office Chicago)
as Administrative Agent,
THE CHASE MANHATTAN BANK
as Syndication Agent
and
CITICORP USA, INC.
and
BANK OF AMERICA, N.A.
as Documentation Agents
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BANC ONE CAPITAL MARKETS, INC.
and
CHASE SECURITIES, INC.
as Joint Lead Arrangers and Joint Book Managers
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SIDLEY & AUSTIN
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Defined Terms...........................................................................................1
ARTICLE II
THE CREDITS
2.1. Commitments............................................................................................21
2.2. Repayment of Revolving Credit Loans; Evidence of Debt..................................................21
2.3. Procedures for Revolving Credit Borrowing..............................................................22
2.4. Termination or Reduction of Revolving Credit Commitment................................................22
2.5. Multicurrency Commitments..............................................................................23
2.6. Special Provisions for Non-Pro Rata Multicurrency Loans................................................25
2.7. Swing Line Loans.......................................................................................27
2.8. Facility, Utilization and Agent Fees...................................................................28
2.9. Optional and Mandatory Principal Payments on All Loans.................................................29
2.10. Conversion and Continuation of Outstanding Advances....................................................30
2.11. Interest Rates; Interest Payment Dates; Interest and Fee Basis.........................................31
2.12. Changes in Interest Rate, etc..........................................................................32
2.13. Rates Applicable After Default.........................................................................32
2.14. Pro Rata Payment, Method of Payment....................................................................32
2.15. Telephonic Notices.....................................................................................33
2.16. Notification of Advances, Interest Rates, Prepayments, Activation of Non-Pro Rata
Multicurrency Loans and Commitment Reductions.........................................................33
2.17. Lending Installations..................................................................................34
2.18. Non-Receipt of Funds by the Administrative Agent.......................................................34
2.19. Facility Letters of Credit.............................................................................34
2.20. Application of Payments with Respect to Defaulting Lenders.............................................39
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1. Yield Protection........................................................................................39
3.2. Changes in Capital Adequacy Regulations.................................................................40
3.3. Availability of Types of Advances.......................................................................40
3.4. Funding Indemnification.................................................................................41
3.5. Lender Statements; Survival of Indemnity................................................................41
3.6. Taxes...................................................................................................41
3.7. Substitution of Lender..................................................................................43
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advances and Letters of Credit..................................................................44
4.2. Each Advance............................................................................................46
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Corporate Existence and Standing........................................................................46
5.2. Authorization and Validity..............................................................................46
5.3. No Conflict; Government Consent.........................................................................47
5.4. Financial Statements....................................................................................47
5.5. Material Adverse Change.................................................................................47
5.6. Taxes...................................................................................................47
5.7. Litigation and Contingent Obligations...................................................................48
5.8. Subsidiaries............................................................................................48
5.9. ERISA...................................................................................................48
5.10. Accuracy of Information................................................................................48
5.11. Regulation U...........................................................................................48
5.12. Material Agreements....................................................................................48
5.13. Compliance With Laws...................................................................................48
5.14. Plan Assets; Prohibited Transactions...................................................................49
5.15. Environmental Matters..................................................................................49
5.16. Investment Company Act.................................................................................49
5.17. Public Utility Holding Company Act.....................................................................49
5.18. Foreign Subsidiary Borrowers...........................................................................49
ARTICLE VI
COVENANTS
6.1. Financial Reporting.....................................................................................50
6.2. Use of Proceeds.........................................................................................51
6.3. Notice of Default.......................................................................................51
6.4. Conduct of Business.....................................................................................51
6.5. Taxes...................................................................................................51
6.6. Insurance...............................................................................................52
6.7. Compliance with Laws....................................................................................52
6.8. Maintenance of Properties...............................................................................52
6.9. Inspection..............................................................................................52
6.10. Priority Indebtedness..................................................................................52
6.11. Merger.................................................................................................52
6.12. Sale of Assets.........................................................................................52
6.13. Conduct of Business; Investments and Acquisitions......................................................53
6.14. Liens..................................................................................................53
6.15. Transactions with Affiliates and Joint Ventures........................................................55
6.16. Contingent Obligations.................................................................................55
6.17. Sale and Leaseback.....................................................................................55
6.18. Subordinated Indebtedness; Restricted Payments.........................................................55
6.19. Additional Guarantees..................................................................................56
6.20. Debt Ratio.............................................................................................56
6.21. Financial Contracts....................................................................................56
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ARTICLE VII
DEFAULTS
7.1. Defaults................................................................................................56
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration............................................................................................58
8.2. Amendments..............................................................................................59
8.3. Preservation of Rights..................................................................................60
ARTICLE IX
GUARANTY
9.1. Guaranty................................................................................................60
9.2. No Subrogation..........................................................................................61
9.3. Amendments, etc. with respect to the Obligations; Waiver of Rights......................................61
9.4. Guarantee Absolute and Unconditional....................................................................62
9.5. Reinstatement...........................................................................................62
9.6. Payments................................................................................................62
ARTICLE X
GENERAL PROVISIONS
10.1. Survival of Representations............................................................................63
10.2. Governmental Regulation................................................................................63
10.3. Taxes..................................................................................................63
10.4. Headings...............................................................................................63
10.5. Entire Agreement.......................................................................................63
10.6. Several Obligations; Benefits of this Agreement........................................................63
10.7. Expenses; Indemnification..............................................................................63
10.8. Numbers of Documents...................................................................................64
10.9. Accounting.............................................................................................64
10.10. Severability of Provisions............................................................................64
10.11. Nonliability of Lenders...............................................................................64
10.12. Confidentiality.......................................................................................64
10.13. Nonreliance...........................................................................................65
ARTICLE XI
THE AGENTS
11.1. Appointment; Nature of Relationship....................................................................65
11.2. Powers.................................................................................................66
11.3. General Immunity.......................................................................................66
11.4. No Responsibility for Loans, Recitals, etc.............................................................66
11.5. Action on Instructions of Lenders......................................................................66
11.6. Employment of Agents and Counsel.......................................................................67
11.7. Reliance on Documents; Counsel.........................................................................67
11.8. Agents' Reimbursement and Indemnification..............................................................67
11.9. Notice of Default......................................................................................67
11.10. Rights as a Lender....................................................................................67
11.11. Lender Credit Decision................................................................................68
11.12. Successor Agents......................................................................................68
11.13. No Duties Imposed Upon Syndication Agent, Documentation Agent or Arranger.............................68
ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS; APPOINTED LENDERS
12.1. Setoff.................................................................................................69
12.2. Ratable Payments.......................................................................................69
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12.3. Application of Payments................................................................................69
12.4. Loan Conversion/Participations.........................................................................70
12.5. Appointed Lenders......................................................................................71
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns.................................................................................72
13.2. Participations.........................................................................................72
13.3. Assignments............................................................................................73
13.4. Dissemination of Information...........................................................................74
13.5. Tax Treatment..........................................................................................74
ARTICLE XIV
NOTICES
14.1. Notices................................................................................................74
14.2. Change of Address......................................................................................74
ARTICLE XV
COUNTERPARTS
15.1. Counterparts...........................................................................................75
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
16.1. CHOICE OF LAW..........................................................................................75
16.2. WAIVER OF JURY TRIAL...................................................................................75
16.3. Submission To Jurisdiction; Waivers....................................................................75
16.4. Acknowledgments........................................................................................76
16.5. Power of Attorney......................................................................................76
16.6. Judgment...............................................................................................76
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Exhibits
EXHIBIT A -- Form of Promissory Note
EXHIBIT B -- Pricing Schedule
EXHIBIT C -- Form of Compliance Certificate
EXHIBIT D -- Form of Company's Counsel's Opinion
EXHIBIT E -- Form of Foreign Subsidiary Borrower's Counsel's Opinion
EXHIBIT F -- Form of Written Money Transfer Instructions
EXHIBIT G -- Form of Joinder Agreement
EXHIBIT H -- Form of Assignment Agreement
EXHIBIT I -- List of Closing Documents
EXHIBIT J -- Appointment Agreement
SCHEDULES
Schedule 1 -- Commitments
Schedule 2 -- Eurocurrency Base Rate
Schedule 3 -- Foreign Subsidiary Borrowers
Schedule 4 -- Permitted Subsidiary Public Indebtedness
Schedule 5 -- Litigation
Schedule 6 -- Subsidiaries
Schedule 7 -- ERISA
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THIS 5-YEAR REVOLVING CREDIT AGREEMENT (this "AGREEMENT"), dated as of
June 28, 2000, among ARVINMERITOR, INC., an Indiana corporation (the "Company"),
the FOREIGN SUBSIDIARY BORROWERS (as hereinafter defined) from time to time
parties hereto (together with the Company, the "Borrowers"), the lenders from
time to time parties hereto (the "Lenders"), BANK ONE, NA, having its principal
office in Chicago, Illinois, as administrative agent for the Lenders (the
"ADMINISTRATIVE AGENT"), THE CHASE MANHATTAN BANK, as syndication agent for the
Lenders (the "SYNDICATION AGENT"), and CITICORP USA, INC. and BANK OF AMERICA,
N.A., as documentation agents for the Lenders (the "DOCUMENTATION AGENTS").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Activated Non-Pro Rata Multicurrency Commitment" means as to any
Multicurrency Lender, its Multicurrency Commitment to make Non-Pro Rata
Multicurrency Loans to the Borrowers for which such Multicurrency Lender is a
Designated Multicurrency Lender following the Activation Date with respect to
such Non-Pro Rata Multicurrency Loans under Section 2.6.1 hereof, as such amount
may be reduced from time to time as provided in Section 2.6, 13.3 and the other
applicable provisions hereof.
"Activation Date" is defined in Section 2.6.1 hereof.
"Activation Request" is defined in Section 2.6.1.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Adjusted Aggregate Ratable Outstandings" means with respect to each
Lender, the Aggregate Ratable Outstandings of such Lender, plus the amount of
any participating interests purchased by such Lender pursuant to Section 12.4,
minus the amount of any participating interests sold by such Lender pursuant to
Section 12.4.
"Administrative Agent" means Bank One in its capacity as administrative
agent for the Lenders pursuant to Article XI, and not in its individual capacity
as a Lender, and any successor Administrative Agent appointed pursuant to
Article XI and, for purposes of any Multicurrency Loan, any Person designated
pursuant to Section 2.5.1(e) hereof.
"Advance" means a Multicurrency Advance or a Revolving Credit Advance,
as the case may be.
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"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. The term
"control" (including the correlative terms "controlled" and "controlling") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock, by contract and otherwise; provided that under no
circumstance shall the Administrative Agent, the Syndication Agent or any of the
Lenders be deemed to be Affiliates of the Company or vice versa.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agents.
"Aggregate Activated Non-Pro Rata Multicurrency Commitments" means the
aggregate amount of the Activated Non-Pro Rata Multicurrency Commitments of all
the Lenders, which shall not exceed an amount, the U.S. Dollar Equivalent of
which is Two Hundred Million Dollars ($200,000,000).
"Aggregate Multicurrency Commitments" means the aggregate amount of the
Multicurrency Commitments of all the Lenders, which shall not exceed an amount,
the U.S. Dollar Equivalent of which is Five Hundred Million Dollars
($500,000,000), as such amount may be reduced by the Aggregate Activated Non-Pro
Rata Multicurrency Commitments pursuant to Section 2.4 or 2.6.
"Aggregate Multicurrency Outstandings" means as at any date of
determination with respect to any Lender, the U.S. Dollar Equivalent of an
amount in the applicable Available Foreign Currencies and in U.S. Dollars equal
to the sum of the aggregate unpaid principal amount of such Lender's
Multicurrency Loans and Multicurrency Swing Line Loans on such date and the
amount of such Lender's Multicurrency Commitment Percentage of the funded
participations in or obligations to purchase participations in Multicurrency
Loans, the Multicurrency Swing Line Loans and of the Facility Letter of Credit
Obligations with respect to Multicurrency Facility Letters of Credit for all
Borrowers.
"Aggregate Non-Pro Rata Multicurrency Outstandings" means as at any
date of determination with respect to any Lender, an amount in U.S. Dollars
equal to the sum of Aggregate Multicurrency Outstandings of such Lender with
respect to Non-Pro Rata Multicurrency Loans in favor of a particular Borrower in
a particular Available Foreign Currency on such date.
"Aggregate Pro Rata Multicurrency Outstandings" means, as at any date
of determination with respect to any Lender, an amount in U.S. Dollars equal to
the sum of the Aggregate Multicurrency Outstandings of such Lender with respect
to Pro Rata Multicurrency Loans on such date.
"Aggregate Ratable Outstandings" means as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate Revolving Credit Outstandings of such Lender on such date and (b)
the Aggregate Pro Rata Multicurrency Outstandings of such Lender on such date.
"Aggregate Revolving Credit Commitments" means the aggregate amount of
the Revolving Credit Commitments of all of the Lenders, which amount shall not
exceed Seven Hundred Fifty Million Dollars ($750,000,000), as such number may be
reduced by the Aggregate Activated Non-Pro Rata Multicurrency Commitments
pursuant to Section 2.6.
"Aggregate Revolving Credit Outstandings" means as at any date of
determination with respect to any Lender, the sum of the aggregate unpaid
principal amount of such Lender's Revolving Credit Loans and U.S. Swing Line
Loans on such date and the amount of such Lender's Revolving Credit Commitment
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Percentage of the funded participations in or obligations to purchase
participations in U.S. Swing Line Loans and the Facility Letter of Credit
Obligations with respect to U.S. Facility Letters of Credit.
"Agreement" means this credit agreement, as it may be amended,
restated, supplemented or otherwise modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect on June 1, 2000 in the United States; provided that, if
the Company notifies the Administrative Agent that the Company wishes to amend
any covenant contained in Article VI to eliminate the effect of any change in
generally accepted accounting principles on the calculation of such covenant (or
if the Administrative Agent notifies the Company that the Required Lenders wish
to amend Article VI for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect on June 1, 2000 in the United States until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Lenders.
"Agreement Currency" is defined in Section 16.6.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day and (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means the amounts set forth in the Pricing Schedule
on Exhibit B hereto.
"Appointed Lender" means, with respect to each Appointing Lender, each
Eligible Appointee designated by such Appointing Lender pursuant to Section
12.5.
"Appointing Lender" means, with respect to each Appointed Lender, the
Lender that designated such Appointed Lender pursuant to Section 12.5.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Arvin" means Arvin Industries, Inc., an Indiana corporation.
"Assignment" is defined in Section 13.3.1.
"Authorized Officer" means any of the Chairman and Chief Executive
Officer, Vice Chairman and President, Senior Vice President and Chief Financial
Officer, Vice President and Treasurer and any Assistant Treasurer of the Company
or any person designated by any such Person in writing to the Administrative
Agent from time to time, acting singly.
"Available Foreign Currencies" means British Pounds Sterling, Canadian
Dollars and euro and any other available and freely-convertible non-U.S. Dollar
currency selected by the Company and approved by the Administrative Agent and
the Syndication Agent.
"Available Non-Pro Rata Multicurrency Commitment" means as at any date
of determination with respect to any Designated Multicurrency Lender for a
particular Borrower and an applicable Available Foreign Currency, the excess, if
any of (a) the amount of such Lender's Activated Non-Pro Rata Multicurrency
Commitment in effect on such date over (b) the Aggregate Multicurrency
Outstandings of such Multicurrency Lender in the applicable Available Foreign
Currency on such date.
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"Available Pro Rata Multicurrency Commitment" means at any date of
determination with respect to any Multicurrency Lender, the lesser of (a) the
excess, if any, of (i) the U.S. Dollar Equivalent of such Multicurrency Lender's
Multicurrency Commitment with respect to Pro Rata Multicurrency Loans in effect
on such date over (ii) the Aggregate Multicurrency Outstandings of such
Multicurrency Lender with respect to Pro Rata Multicurrency Loans on such date
and (b) the Available Revolving Credit Commitment of such Lender on such date.
"Available Revolving Credit Commitment" means at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit Commitment
in effect on such date over (b) the Aggregate Ratable Outstandings of such
Lender on such date.
"Bank Book" means the ArvinMeritor, Inc. $1,500,000,000 Senior
Unsecured Credit Facilities Confidential Information Memorandum dated June 2000.
"Bank One" means Bank One, NA, having its principal place of business
in Chicago, Illinois, in its individual capacity, and its successors.
"Borrowers" is defined in the preamble hereto.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.3, 2.5, 2.7 or 2.19 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to the issuance of any Facility
Letter of Credit, the date an Issuer issues such Facility Letter of Credit.
"Business Day" means (a) when such term is used in respect of a day on
which a Loan denominated in an Available Foreign Currency is to be made, a
payment is to be made in respect of such Loan, an Exchange Rate is to be set in
respect of such Available Foreign Currency or any other dealing in such
Available Foreign Currency is to be carried out pursuant to this Agreement, such
term shall mean a London Banking Day which is (i) in the case of an Available
Foreign Currency other than euro, also a day on which banks are open for general
banking business in the city which is the principal financial center of the
country of issuance of such Available Foreign Currency and (ii) in the case of
euro, a "Target Settlement Day" (as defined in Annex I to Schedule 2 hereof);
(b) when such term is used to describe a day on which a borrowing, payment or
interest rate determination is to be made in respect of a Eurodollar Loan, such
day shall be a London Banking Day; and (c) when such term is used in any context
in this Agreement (including as described in the foregoing clauses (a) and (b)),
such term shall mean a day which, in addition to complying with any applicable
requirements set forth in the foregoing clauses (a) and (b), is a day other than
a Saturday, Sunday or other day on which commercial banks in Chicago, Illinois
are authorized or required by law to close.
"Calculation Period" is defined in Section 2.11(e).
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
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"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a limited liability
company, membership interests, (iv) in the case of a partnership, partnership
interests (whether general or limited) and (v) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"Change in Control" means any event or series of events by which:
(i) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of thirty
percent (30%) or more of the voting power of the then outstanding
Capital Stock of the Company entitled to vote generally in the election
of the directors of the Company;
(ii) during any period of twelve (12) consecutive calendar
months, the board of directors of the Company shall cease to have as a
majority of its members individuals who either: (a) were directors of
the Company on the first day of such period, or (b) were elected or
nominated for election to the board of directors of the Company at the
recommendation of or other approval by at least a majority of the
directors then still in office at the time of such election or
nomination who were directors of the Company on the first day of such
period, or whose election or nomination for election was so approved;
or
(iii) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of
its property to any person, or any corporation consolidates with or
merges into the Company, in either event pursuant to a transaction in
which the outstanding Capital Stock of the Company is reclassified or
changed into or exchanged for cash, securities or other Property.
"Chase" means The Chase Manhattan Bank, in its individual capacity, and
its successors.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Combined Commitment" means the sum of (1) the aggregate of the
Commitments hereunder (which, after the Commitments have been terminated, shall
be based on the aggregate Commitments immediately prior to such termination) and
(2) (a) prior to the "Conversion Date" (as defined in the 364-Day Credit
Agreement), the aggregate "Commitments" under and as defined in the 364-Day
Credit Agreement (which, after such "Commitments" have been terminated, other
than as a result of a conversion pursuant to Section 2.2.2 thereof, shall be
based on the aggregate of such "Commitments" immediately prior to such
termination) and (b) from and after the "Conversion Date" (as defined in the
364-Day Credit Agreement), the "Aggregate Outstandings" of all "Lenders" in each
case under and as defined in the 364-Day Credit Agreement.
"Combined Utilized Amount" means the sum of (1) the Aggregate Ratable
Outstandings of all the Lenders plus the Aggregate Non-Pro Rata Multicurrency
Outstandings of all the Lenders hereunder
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excluding any amounts attributable to outstanding Multicurrency Swing Line Loans
or any Lender's funded participations in or obligations to purchase
participations in Multicurrency Swing Line Loans, and (2) the "Aggregate
Outstandings" of all the "Lenders" under and as defined in the 364-Day Credit
Agreement.
"Commitment" means, for each Lender, such Lender's Revolving Credit
Commitment and Multicurrency Commitment, including any Activated Non-Pro Rata
Multicurrency Commitments, and "Commitments" means the aggregate of all the
Lenders' Commitments.
"Committed Outstandings Percentage" means as of any date with respect
to any Lender, the percentage which the Adjusted Aggregate Ratable Outstandings
of such Lender constitutes of the Adjusted Aggregate Ratable Outstandings of all
Lenders.
"Company" is defined in the preamble hereto.
"Company Guaranty" means the guarantee contained in Article IX.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes
liable upon, the obligation or liability of any other Person, or agrees to
maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor of such other Person against
loss and shall include, without limitation, the contingent liability of such
first Person under any letter of credit for which such first Person is in any
way liable, but shall exclude any contingent liability with respect to trade
letters of credit used to finance inventory or equipment obtained in the
ordinary course of business.
"Conversion/Continuation Notice" is defined in Section 2.10.1.
"Conversion Event" means either (a) a Default under Article VII has
occurred and (i) for any Non-Pro Rata Multicurrency Loans, the applicable
Designated Multicurrency Lenders have requested that a Conversion Event shall
occur with respect to such Loans, (ii) for any Pro-Rata Multicurrency Loans, the
Administrative Agent has requested that a Conversion Event shall occur with
respect to such Loans, (iii) for any Multicurrency Swing Line Loans, the Swing
Line Bank has requested that a Conversion Event shall occur with respect to such
Loans or (iv) for any Multicurrency Facility Letter of Credit, the Issuer has
requested that a Conversion Event shall occur with respect to such Multicurrency
Facility Letters of Credit or the Reimbursement Obligations with respect
thereto, or (b) the Commitments shall have been terminated and/or the Loans
shall have been declared immediately due and payable pursuant to Section 8.1(b).
"Conversion Sharing Percentage" means on any date with respect to any
Lender and any Loans of such Lender outstanding in any currency other than U.S.
Dollars, the percentage of such Loans such that, after giving effect to the
conversion of such Loans to U.S. Dollars and the purchase and sale by such
Lender of participating interests as contemplated by Section 12.4, the Committed
Outstandings Percentage of such Lender will equal such Lender's Revolving Credit
Commitment Percentage on such date (calculated immediately prior to giving
effect to any termination or expiration of the Revolving Credit Commitments on
the date of any Conversion Event).
"Converted Loans" is defined in Section 12.4(a).
"Debt Ratio" means, as of the last day of any fiscal quarter commencing
with the fiscal quarter ending September 30, 2000, the ratio of (a) Total Debt
to (b) EBITDA for the four consecutive fiscal quarters then ended on such date.
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"Deactivation Date" is defined in Section 2.6.4.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (a) on any Borrowing Date
fails to make available to the Administrative Agent such Lender's Loans required
to be made to a Borrower on such Borrowing Date or (b) shall not have made a
payment to an Issuer pursuant to Section 2.19.5. Once a Lender becomes a
Defaulting Lender, such Lender shall continue as a Defaulting Lender until such
time as such Defaulting Lender makes available to the Administrative Agent, the
amount of such Defaulting Lender's Loans and/or to an Issuer, such payments
requested by an Issuer together with all other amounts required to be paid to
the Administrative Agent and/or the Issuers pursuant to this Agreement.
"Designated Financial Officer" means, with respect to any Borrower, its
chief financial officer, treasurer, assistant treasurer or controller.
"Designated Multicurrency Lender" means, with respect to any
Multicurrency Loan to any Borrower, a Multicurrency Lender that is designated by
the Company (having provided the Company with such documentation as the Company
reasonably requests to avoid withholding tax), and accepted by such Lender, as a
Multicurrency Lender with respect to such Borrower pursuant to Section 2.5.4 (it
being understood that for Pro Rata Multicurrency Loans, each Lender shall be a
Designated Multicurrency Lender).
"Designated Office" has the meaning set forth in the definition of
Multicurrency Lender.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Facility Termination Date.
"Documentation Agent" means each of Bank of America, N.A. and Citicorp
USA, Inc., in their respective capacities as documentation agents for the
Lenders pursuant to Article XI, and not in their individual capacities as
Lenders, and any successor Documentation Agent appointed pursuant to Article XI.
"Dollars", "U.S. Dollars" and "$" means dollars in lawful currency of
the United States of America.
"EBITDA" means for any period, the sum of (a) the consolidated net
income (or loss) of the Company and its Subsidiaries for such period determined
in conformity with Agreement Accounting Principles, plus (b) to the extent
deducted in determining net income, income taxes, depreciation and amortization
expense and Interest Expenses. For any calculation of EBITDA for a four
fiscal-quarter period prior to September 30, 2001, EBITDA for any fiscal quarter
prior to the Merger shall be calculated on a pro forma basis.
"Effective Date" means the date on which the conditions precedent set
forth in Sections 4.1 and 4.2 are satisfied.
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"Eligible Appointee" means a special purpose corporation that (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Moody's.
"Environmental Laws" means, with respect to any Person, any and all
federal, state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (a) the protection of the environment, (b)
the effect of the environment on human health, (c) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (d) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof, in each case, applicable to such Person or its
Property.
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
"euro" means the Euro referred to in the Council Regulation E.C. No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the European Economic and Monetary Union.
"Eurocurrency Advance" means a Multicurrency Advance which bears
interest at the Eurocurrency Rate.
"Eurocurrency Base Rate" means, with respect to each Interest Period
pertaining to a Multicurrency Loan, the Eurocurrency Base Rate determined for
such Interest Period and the currency in which such Multicurrency Loan is
denominated in the manner set forth in Schedule 2, as such Schedule 2 is amended
or modified from time to time, in accordance with the provisions of Schedule 2.
"Eurocurrency Loan" means a Multicurrency Loan which bears interest at
the Eurocurrency Rate.
"Eurocurrency Rate" means with respect to a Multicurrency Advance for
the relevant Interest Period, the sum of (a) the quotient of (i) the
Eurocurrency Base Rate applicable to such Interest Period, divided by (ii) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (b) the Applicable Margin.
"Eurodollar Advance" means a Revolving Credit Advance which bears
interest at a Eurodollar Rate.
"Eurodollar Base Rate" means, the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. Dollars appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period; provided that, (i) if Reuters Screen FRBD is not available to
the Administrative Agent for any reason, the applicable Eurodollar Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the
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applicable Eurodollar Rate for the relevant Interest Period shall instead be the
rate determined by the Administrative Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. Dollars with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
"Eurodollar Loan" means a Revolving Credit Loan which bears interest at
a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin.
"Exchange Rate" means with respect to any non-U.S. Dollar currency on
any date, the rate at which such currency may be exchanged into U.S. Dollars, as
set forth on such date on the relevant Reuters currency page at or about 11:00
a.m. Detroit time, on such date. In the event that such rate does not appear on
any Reuters currency page, the "Exchange Rate" with respect to such non-U.S.
Dollar currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the Company or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such non-U.S. Dollar currency are then being conducted, at or
about 10:00 a.m. Detroit time, on such date for the purchase of U.S. Dollars
with such non-U.S. Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such spot rate can
reasonably be quoted, the Administrative Agent may use any reasonable method as
it deems applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Existing Credit Agreements" means each of (a) that certain Credit
Agreement dated as of August 21, 1997 among Meritor, the foreign Subsidiaries of
Meritor parties thereto as borrowers, the lenders parties thereto, Bank One,
Michigan (formerly NBD Bank), as documentation agent, and Morgan Guaranty Trust
Company, as administrative agent, (b) that certain Multicurrency Credit
Agreement dated as of August 28, 1997 among Arvin, Arvin Finance Ireland, the
lenders parties thereto, Bank One (formerly The First National Bank of Chicago)
as administrative agent, and Bank of America, N.A. (formerly Bank of America
National Trust and Savings Association), as syndication agent and (c) that
certain Amended and Restated Credit Agreement dated as of March 28, 2000 among
Arvin, the lenders parties thereto, Bank One, as syndication agent and Bank of
America, N.A., as administrative agent, as each of the foregoing agreements has
been amended from time to time.
"Facility Letter of Credit" means a Letter of Credit issued by an
Issuer pursuant to Section 2.19.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of a
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and, without duplication, (b) the aggregate
undrawn face amount of the outstanding Facility Letters of Credit.
"Facility Termination Date" means the earliest to occur of (a) June 27,
2005, (b) the date on which the Commitments are terminated pursuant to Article
VIII and (c) if the Merger has not occurred prior thereto, July 31, 2000.
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"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Detroit
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"Fixed Rate" means the Eurodollar Rate, the Eurocurrency Rate or any
other fixed rate of interest.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means a Revolving Credit Advance which bears
interest at the Floating Rate.
"Floating Rate Loan" means a Revolving Credit Loan which bears interest
at the Floating Rate.
"Foreign Plan" means an employee pension benefit plan (as defined in
Section 3(2) of ERISA) which is (i) maintained or contributed to for the benefit
of employees of the Company or any Subsidiary, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) thereof and (iii) under applicable local law, is
required to be funded through a trust or other funding vehicle.
"Foreign Subsidiary Borrower" means each Subsidiary of the Company
organized under the laws of a jurisdiction outside the United States listed as a
Foreign Subsidiary Borrower in Schedule 3 as amended from time to time in
accordance with Section 8.2.2.
"Foreign Subsidiary Opinion" means with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Agents and the Lenders concluding that such Foreign
Subsidiary Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on the opinion request attached hereto as Exhibit
E, with such assumptions, qualifications and deviations therefrom as the
Administrative Agent and the Syndication Agent shall approve (such approval not
to be unreasonably withheld).
"Governmental Authority" means any nation or government, any state, or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor" means the Company.
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"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens on property
now or hereafter owned or acquired by such Person, (d) obligations which are
evidenced by notes, acceptances, or other instruments (other than Financial
Contracts), to the extent of the amounts actually borrowed, due, payable or
drawn, as the case may be, (e) Capitalized Lease Obligations, (f) all
obligations in respect of standby Letters of Credit, whether drawn or undrawn,
contingent or otherwise, (g) Receivables Facility Attributed Indebtedness in
excess of $200,000,000 and (h) Contingent Obligations with respect to any of the
foregoing to the extent (and only to the extent) that (1) such Contingent
Obligation relates to other Indebtedness that is not consolidated Indebtedness
of the Company and its Subsidiaries and (2) the other Indebtedness to which such
Contingent Obligation relates is outstanding and then only as to principal or
like amounts actually borrowed, due, payable or drawn, as the case may be.
"Interest Expenses" means, with respect to any period, the aggregate of
all interest expense reported by the Company and its Subsidiaries in accordance
with Agreement Accounting Principles during such period, net of any interest
income received by the Company and its Subsidiaries during such period from
Investments. As used in this definition, the term "interest" shall include,
without limitation, all interest, fees and costs payable with respect to the
obligations under this Agreement (other than fees and costs which may be
capitalized as transaction costs in accordance with Agreement Accounting
Principles) and the interest portion of Capitalized Lease payments during such
period, all as determined in accordance with Agreement Accounting Principles.
"Interest Period" means with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three, or six months
thereafter, as selected by the relevant Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter,
as selected by the relevant Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar
Loan or Multicurrency Loan that would otherwise extend beyond
the Facility Termination Date shall end on the Facility
Termination Date; and
(iii) any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan that begins on the last Business
Day of a calendar month (or on a day for which there
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is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade and loans to employees in the ordinary course of business) or contribution
of capital by such Person; stocks, bonds, mutual funds, partnership interests,
notes, debentures or other securities owned by such Person; and any deposit
accounts and certificate of deposits owned by such Person.
"Issuer" means (i) Bank One and (ii) any Lender (other than Bank One)
reasonably acceptable to the Administrative Agent, and (iii) any Lending
Installation or Affiliate of Bank One or such Lender as may be agreed upon, in
each case in Bank One's or such Lender's, Lending Installation's or Affiliate's
separate capacity as an issuer for any Facility Letter of Credit pursuant to
Section 2.19.1 hereof; provided, however, that notwithstanding the foregoing,
the Issuer of any Multicurrency Facility Letter of Credit requested by a
Borrower in an Available Foreign Currency shall be a Designated Multicurrency
Lender for the requesting Borrower in the applicable Available Foreign Currency.
"Joinder Agreement" means the Joinder Agreement to be entered into by
each Foreign Subsidiary Borrower subsequent to the date hereof pursuant to
Section 8.2.2, substantially in the form of Exhibit G hereto.
"Joint Book Managers" means Chase Securities, Inc. and Banc One Capital
Markets, Inc. in their capacities as joint lead arrangers and joint book
managers.
"Joint Venture" means an association of economically independent
business entities (the "Venturers") for a common commercial purpose of defined
scope and duration, by contract or through equity interests in a business
entity, and by means of which the Venturers pool resources and share risks,
rewards and control.
"Judgment Currency" is defined in Section 16.6.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and, to the extent permitted
by Section 13.3, assigns.
"Lending Installation" means, with respect to a Lender or an Agent, any
office, branch, subsidiary or affiliate of such Lender or Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.19.7.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's Revolving Credit
Loans and Multicurrency Loans and, in the case of the Swing Line Bank, any Swing
Line Loans.
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"Loan Documents" means this Agreement and the other documents and
agreements contemplated hereby and executed by any Borrower in favor of the
Administrative Agent or any Lender (excluding any Financial Contracts between a
Borrower and the Administrative Agent or any Lender).
"Loans to be Converted" is defined in Section 12.4.
"London Banking Day" means any day on which banks in London are open
for general banking business, including dealings in foreign currency and
exchange.
"Margin Stock" means margin stock as defined in Regulations U.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property or financial condition of the Company (or, prior to the
Merger, each of Arvin and Meritor) and its Subsidiaries taken as a whole (ii)
the ability of the Borrowers to pay the Obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agents or the Lenders thereunder.
"Material Foreign Plan" means (i) any Foreign Plan the fair market
value of the assets of which, as of the date of the last valuation, exceed
$10,000,000 or (ii) any Foreign Plan where the difference between the present
value of the accrued benefits under such Foreign Plan and the fair market value
of the assets of which exceeds $10,000,000.
"Material Liabilities" is defined in Section 7.1.5.
"Merger" means (a) the merger of Meritor with and into Newco, to be
immediately followed by (b) the merger of Arvin with and into Newco, in each
case, pursuant to the terms and conditions of the Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of
Reorganization, dated as of April 6, 2000, among Arvin, Meritor and Newco, as
amended prior to the date hereof.
"Meritor" means Meritor Automotive, Inc., a Delaware corporation.
"Moody's Bond Rating" means for any day, the rating of the Company's
senior long-term unsecured debt by (i) Moody's Investors Service, Inc.
("MOODY'S") in effect at 11:00 A.M., Detroit time, on such day or (ii) if
Moody's shall cease to publish such a rating in respect of the Company, either
of Duff & Phelps Credit Rating Co. or Fitch, Inc. as determined by the Company.
"Multicurrency Advance" means a borrowing hereunder (or continuation or
a conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and for the same Interest Period.
"Multicurrency Commitment" means, as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to the Borrowers for which such
Multicurrency Lender is a Designated Multicurrency Lender in an aggregate amount
in Dollars or in Available Foreign Currencies as designated on Schedule 1 (or
otherwise established pursuant to Section 13.3) of which the U.S. Dollar
Equivalent does not exceed at any time outstanding the amount set forth opposite
such Multicurrency Lender's name in Schedule 1 under the heading "Multicurrency
Commitment" or as otherwise established pursuant to Section 13.3, as such amount
may be reduced from time to time as provided in Sections 2.5.3, 2.6, 13.3 and
the other applicable provisions hereof.
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"Multicurrency Commitment Percentage" means as to any Designated
Multicurrency Lender and any Multicurrency Loan or Multicurrency Facility Letter
of Credit to any Borrower at any time, the percentage which such Designated
Multicurrency Lender's Multicurrency Commitment with respect to such Borrower
then constitutes of the aggregate Multicurrency Commitments of all Designated
Multicurrency Lenders with respect to such Borrower (or, if the Multicurrency
Commitments have terminated or expired, the percentage which (a) the Aggregate
Multicurrency Outstandings of such Designated Multicurrency Lender with respect
to such Borrower at such time constitutes of (b) the Aggregate Multicurrency
Outstandings of all Designated Multicurrency Lenders with respect to such
Borrower at such time).
"Multicurrency Facility Letter of Credit" means any Facility Letter of
Credit for the account of the Company in any Available Foreign Currency or a
Foreign Subsidiary Borrower in Dollars or in any Available Foreign Currency.
"Multicurrency Lender" means each Lender having an amount greater than
zero set forth opposite such Lender's name on Schedule 1 hereto under the
heading "Multicurrency Commitment"; provided, however, that upon written request
of the Company (given by notice to the Administrative Agent), each Multicurrency
Lender which has agreed to be a Designated Multicurrency Lender with respect to
any Borrower shall promptly cause a subsidiary, branch or affiliate of such
Multicurrency Lender legally authorized to make Multicurrency Loans to such
Borrower (a "Designated Office") to become a party to this Agreement as a
Multicurrency Lender with respect to such Foreign Subsidiary Borrower, in each
case if and to the extent required under applicable law to assure that
Non-Excluded Taxes are not required to be withheld or paid by such Borrower in
respect of Multicurrency Loans made to such Borrower and shall furnish to such
Borrower such forms, certifications, opinions and statements as may be
reasonably requested by such Borrower (and any material expense of such
Multicurrency Lender in connection with such forms, certifications, opinions and
statements shall be paid by such Borrower) to confirm that such Designated
Office is entitled to receive payments from such Borrower under this Agreement
without deduction or withholding of any Non-Excluded Taxes. The identification
of a Designated Office shall be effected by delivering a letter to the
Administrative Agent, the applicable Foreign Subsidiary Borrower and the Company
signed by such Multicurrency Lender and such Designated Office and referring to
this Agreement and naming such Designated Office and listing the address and
contact information for such Designated Office and the applicable Foreign
Subsidiary Borrower, whereupon such Designated Office shall, on behalf of such
Multicurrency Lender, fulfill such Multicurrency Lender's obligations and enjoy
such Multicurrency Lender's rights, as a Multicurrency Lender with respect to
Multicurrency Loans and Multicurrency Letters of Credit to such Foreign
Subsidiary Borrower, and the term "Multicurrency Lender" shall, when the context
requires, be deemed to refer to and include such Designated Office; provided,
further, however, that such designation shall not relieve any Multicurrency
Lender of its obligations under this Agreement, and in the event of any failure
by the Designated Office to make Multicurrency Loans to such Borrower (or to
issue or honor drawings on Multicurrency Facility Letters of Credit) in
accordance with the terms of this Agreement, such Multicurrency Lender shall
make, or shall cause another Designated Office of such Multicurrency Lender to
make, Multicurrency Loans to such Borrower (or to issue or honor drawings on
Multicurrency Facility Letters of Credit) in accordance with its Multicurrency
Commitment hereunder, in either case, only if and to the extent it can legally
and reasonably do so, pursuant to arrangements which enable payments in respect
of such Multicurrency Loans to be made without deduction or withholding of any
Non-Excluded Taxes and provided that doing so shall not impose on any such
Multicurrency Lender any additional costs or legal or regulatory burdens deemed
by such Multicurrency Lender in its reasonable judgment to be material.
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"Multicurrency Loans" means, with respect to a Multicurrency Lender,
such Lender's loan made pursuant to Section 2.5, including any Non-Pro Rata
Multicurrency Loans made pursuant to Sections 2.5 and 2.6. Unless specifically
stated otherwise herein, the provisions of this Agreement applicable to
Multicurrency Loans shall apply equally to Pro Rata Multicurrency Loans and
Non-Pro Rata Multicurrency Loans.
"Multicurrency Swing Line Loan" means any Swing Line Loan made
available to the Company in an Available Foreign Currency or to a Foreign
Subsidiary Borrower in Dollars or an Available Foreign Currency.
"Net Worth" means the consolidated shareholder's equity of the Company
and its Subsidiaries, including minority interests, calculated in accordance
with Agreement Accounting Principles; provided, that for purposes of this
definition Net Worth shall not be increased or decreased as a result of any
change in the Company's net worth accounts pursuant to Statement of Financial
Accounting Standards No. 52 and/or 133, promulgated by the Financial Accounting
Standards Board of the Financial Accounting Foundation.
"Newco" means Mu Sub, Inc., an Indiana corporation and a Wholly-Owned
Subsidiary of Meritor, and the predecessor in interest to the Company.
"Non-Excluded Taxes" is defined in Section 3.6.1.
"Non-Multicurrency Lender" means each Lender which is not a
Multicurrency Lender.
"Non-Pro Rata Multicurrency Loans" means Multicurrency Loans that are
not Pro Rata Multicurrency Loans which shall include, without limitation, Loans
made in an Available Foreign Currency or in U.S. Dollars to a Foreign Subsidiary
Borrower organized under the laws of Canada or the United Kingdom (whether in
such currencies or on a eurocurrency basis, as appropriate), or such other
Non-Pro Rata Multicurrency Loans as may arise following the addition of a new
Foreign Subsidiary Borrower hereunder.
"Notice of Assignment" is defined in Section 13.3.1.
"Obligations" means collectively, the unpaid principal of and interest
on the Loans and all other obligations and liabilities of the Company and each
Foreign Subsidiary Borrower under this Agreement and the other Loan Documents
owing to the Agents, any Lender, the Swing Line Bank, any Issuer, the Joint Book
Managers, any Affiliate of the foregoing or any indemnitee hereunder (including,
without limitation, the Facility Letter of Credit Obligations and interest
accruing at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest accruing
at the then applicable rate provided in this Agreement or any other applicable
Loan Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Company or any Foreign Subsidiary Borrower, as the case may be, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, the other Loan Documents or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Agents or to the Lenders that are required to be
paid by any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
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"Off-Balance Sheet Liabilities" of a Person means, without duplication, (a)
any Receivables Facility Attributed Indebtedness and repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of
Receivables or notes receivable or any other obligation of the Company or such
transferor to purchasers/transferees of interests in Receivables or notes
receivables or the agent for such purchasers/transferees), (b) any liability
under any sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person, (c) any liability under any financing
lease or so-called "synthetic" lease transaction, or (d) any obligations arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries.
"Originators" means the Company and/or any of its Subsidiaries in their
respective capacities as parties to any Receivables Purchase Documents, as
sellers or transferors of any Receivables and Related Security in connection
with a Permitted Receivables Transfer.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last Business Day of each March, June, September
and December occurring after the date hereof, commencing September 30, 2000.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Receivables Transfer" means (i) a sale or other transfer by an
Originator to a SPV of Receivables and Related Security for fair market value
and without recourse (except for limited recourse typical of such structured
finance transactions), and/or (ii) a sale or other transfer by a SPV to (a)
purchasers of or other investors in such Receivables and Related Security or (b)
any other Person (including a SPV) in a transaction in which purchasers or other
investors purchase or are otherwise transferred such Receivables and Related
Security, in each case pursuant to and in accordance with the terms of the
Receivables Purchase Documents.
"Permitted Related Party Transactions" means (a) Permitted Receivables
Transfers (b) transactions between one or more Wholly-Owned Subsidiaries of the
Company; (c) transactions between the Company and one or more Wholly-Owned
Subsidiaries of the Company; and (d) transactions between (i) any
non-Wholly-Owned Subsidiary of the Company, any Affiliate of the Company (other
than Wholly-Owned Subsidiaries) or any Joint Venture in which the Company or any
of its Subsidiaries is a Venturer, on the one hand and (ii) the Company or any
Wholly-Owned Subsidiary of the Company, on the other hand, where the net benefit
derived from such transaction is derived by the Company or such Wholly-Owned
Subsidiary as the transferee in such transaction.
"Permitted Strategic Transactions" means one or more transactions: (a)
entered into between (i) the Company or one of its Wholly-Owned Subsidiaries, on
the one hand and (ii) any non-Wholly-Owned Subsidiary, Affiliate (other than
Wholly-Owned Subsidiaries) or Joint Venture, on the other hand, (b) where the
principal factor for the Company or the Wholly-Owned Subsidiary entering into
such a transaction is to provide for a more tax-efficient structure or to
accomplish strategic objectives and (c) where such transaction or transactions
are not materially adverse to the interests of the Lenders in their capacities
as Lenders under this Agreement.
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"Person" means any natural person, corporation, firm, joint venture, limited
liability company, partnership, association, enterprise, trust or other entity
or organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means a defined benefit pension plan under ERISA with respect to
which the Company or any Subsidiary could be held liable by the PBGC for the
Unfunded Liabilities upon termination.
"Prime Rate" means the rate of interest announced from time to time by Bank
One or its parent (which is not necessarily the lowest rate charged to any
customer) changing when and as said rate changes.
"Priority Indebtedness" means, collectively, and without duplication, (a)
any and all Indebtedness of any Subsidiary of the Company, (b) any and all
Indebtedness of the Company and its Subsidiaries that is secured by any Lien,
and (c) Receivables Facility Attributed Indebtedness in excess of $200,000,000;
provided, that, there shall be excluded from the calculation of Priority
Indebtedness (i) Indebtedness of the Foreign Subsidiary Borrowers under this
Agreement and (ii) Indebtedness of any Subsidiary of the Company owing to any of
the Borrowers.
"Projections" is defined in Section 5.4.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Multicurrency Loans" means Multicurrency Loans for which each
Lender shall constitute a Designated Multicurrency Lender hereunder which shall
include, without limitation, Loans made in any Available Foreign Currency in
favor of the Company, or in any Available Foreign Currency or U.S. Dollars in
favor of any Foreign Subsidiary Borrower organized under the laws of the
Republic of Ireland (whether in such currencies or on a eurocurrency basis, as
appropriate), or such other Pro Rata Multicurrency Loans as may arise following
the addition of a new Foreign Subsidiary Borrower hereunder.
"Purchasers" is defined in Section 13.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement providing
for payments which are related to fluctuations of interest rates, exchange rates
or forward rates, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants.
"Receivable(s)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Company and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"Receivables and Related Security" means the Receivables and the related
security and collections with respect thereto which are sold or transferred by
any Originator or SPV in connection with any Permitted Receivables Transfer.
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"Receivables Facility Attributed Indebtedness" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
"Receivables Purchase Documents" means any series of receivables purchase or
sale agreements generally consistent with terms contained in comparable
structured finance transactions pursuant to which an Originator or Originators
sell or transfer to SPVs all of their respective right, title and interest in
and to certain Receivables and Related Security for further sale or transfer to
other purchasers of or investors in such assets (and the other documents,
instruments and agreements executed in connection therewith), as any such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, or any replacement or substitution therefor.
"Receivables Purchase Facility" means the securitization facility made
available to the Company, pursuant to which the Receivables and Related Security
of the Originators are transferred to one or more SPVs, and thereafter to
certain investors, pursuant to the terms and conditions of the Receivables
Purchase Documents.
"Register" is defined in Section 13.3.3.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Reimbursement Obligations" means, at any time, the aggregate of the
obligations of the Borrowers to the Lenders and the Issuers in respect of all
unreimbursed payments or disbursements made by the Issuers and the Lenders under
or in respect of the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means (a) at any time prior to the termination of the
Revolving Credit Commitments, Lenders the Revolving Credit Commitment
Percentages of which aggregate greater than fifty percent (50%); and (b) at any
time after the termination of the Revolving Credit Commitments,
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Lenders whose Aggregate Ratable Outstandings aggregate greater than fifty
percent (50%) of the Aggregate Ratable Outstandings of all Lenders; provided
that for purposes of this definition the Aggregate Ratable Outstandings of each
Lender shall be adjusted up or down so as to give effect to any participations
purchased or sold pursuant to Section 12.4.
"Requirement of Law" means as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority (including Regulations T,
U and X), in each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.
"Reserve Requirement" means, with respect to an Interest Period for
Eurodollar Loans, Eurocurrency Loans or other Multicurrency Loans, to the extent
applicable, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements prescribed
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D) maintained by a member bank of such System.
"Restricted Payment" means (i) any dividend or other distribution, direct or
indirect, on account of any equity interests of the Company now or hereafter
outstanding, except a dividend payable solely in the Company's Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any equity interests of the
Company or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other equity interests of the
Company (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any equity interests of the Company, or any of its
Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
"Revolving Credit Advance" means a borrowing hereunder (or continuation or
conversion thereof) consisting of the several Revolving Credit Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
the Company of the same Type and, in the case of Fixed Rate Advances, for the
same Interest Period.
"Revolving Credit Commitment" means, as to any Lender at any time, its
obligation to make Revolving Credit Loans to the Company in an aggregate amount
not to exceed at any time outstanding the U.S. Dollar amount set forth opposite
such Lender's name in Schedule 1 under the heading "Revolving Credit Commitment"
or as otherwise established pursuant to Section 13.3, as such amount may be
reduced from time to time pursuant to Section 2.4, 2.6.1, 13.3 and the other
applicable provisions hereof.
"Revolving Credit Commitment Percentage" means as to any Lender at any time,
the percentage which such Lender's Revolving Credit Commitment then constitutes
of the Aggregate Revolving Credit Commitments of all Lenders (or, if the
Revolving Credit Commitments have terminated or expired, the percentage which
(a) the Aggregate Revolving Credit Outstandings of such Lender at such time then
constitutes of (b) the Aggregate Revolving Credit Outstandings of all Lenders at
such time).
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"Revolving Credit Loans" means, with respect to a Lender, such Lender's loan
made available to the Company pursuant to Section 2.1.
"Rules" is defined in Section 3.1.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"S&P Bond Rating" means for any day, the rating of the Company's senior long
term unsecured debt by (a) Standard & Poor's Rating Group ("S&P") in effect at
11:00 A.M., Detroit time, on such day or (b) if S&P shall cease to publish such
a rating in respect of the Company, either Duff & Phelps Credit Rating Co. or
Fitch, Inc. as determined by the Company.
"SPV" means any special purpose entity established for the purpose of
purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Substantial Portion" means, with respect to the Property of the Company and
its Subsidiaries, Property which exceeds any of the following thresholds: (a)
such Property represents more than 25% of the consolidated assets of the Company
and its Subsidiaries as would be shown in the consolidated financial statements
of the Company and its Subsidiaries as at the beginning of the twelve-month
period ending with the month in which such determination is made, or (b) such
Property is responsible for more than 25% of the consolidated net sales of the
Company and its Subsidiaries as reflected in the financial statements referred
to in clause (a) above, or (c) such Property accounts for more than 25% of the
consolidated net income of the Company and its Subsidiaries as reflected in the
financial statements referred to in clause (a) above.
"Swing Line Bank" means Bank One pursuant to the terms of Section 2.7
hereof; provided, however, if with respect to any Swing Line Loans requested by
a Borrower in an Available Foreign Currency with respect to which Bank One is
not a Designated Multicurrency Lender, the "Swing Line Bank" shall be a
Designated Multicurrency Lender for the requesting Borrower in the applicable
Available Foreign Currency reasonably acceptable to Bank One, who agrees to
serve as the "Swing Line Bank" with respect to Swing Line Loans made in such
Available Foreign Currency on terms and conditions acceptable to Bank One.
"Swing Line Commitment" means the commitment of the Swing Line Bank, in its
discretion, to make Swing Line Loans up to a maximum principal amount equal to
the U.S. Dollar Equivalent of $112,500,000 at any one time outstanding.
"Swing Line Loan" means a Loan made available to any Borrower by the Swing
Line Bank pursuant to Section 2.7 hereof and shall include all U.S. Swing Line
Loans and Multicurrency Swing Line Loans.
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"Syndication Agent" means Chase in its capacity as syndication agent for the
Lenders pursuant to Article XI, and not in its individual capacity as a Lender,
and any successor Syndication Agent appointed pursuant to Article XI.
"364-Day Credit Agreement" means that certain 364-Day Credit Agreement of
even date herewith among the Company, the lenders from time to time parties
thereto, Bank One, NA, having its principal office in Chicago, Illinois, as
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, and
Citicorp USA, Inc. and Bank of America, N.A., as Documentation Agents, as the
same may be amended, restated, supplemented or otherwise modified and as in
effect from time to time.
"Total Debt" means, as of the end of any fiscal quarter of the Company, all
Indebtedness of the Company and its Subsidiaries as at such date, determined on
a consolidated basis.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Fixed Rate Advance, Eurocurrency Advance or Eurodollar Advance.
"Unfunded Liabilities" means with regard to any Plan, the excess of the
current value of the Plan's benefits guaranteed under ERISA over the current
value of the Plan's assets allocable to such benefits.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"U.S. Dollar Equivalent" means with respect to an amount denominated in any
currency other than U.S. Dollars, the equivalent in U.S. Dollars of such amount
determined at the Exchange Rate on the date of determination of such equivalent.
In making any determination of the U.S. Dollar Equivalent for purposes of
calculating the amount of Loans to be borrowed from the respective Lenders on
any Borrowing Date, the Administrative Agent shall use the relevant Exchange
Rate in effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other Loan
Documents.
"U.S. Facility Letter of Credit" means any Letter of Credit for the account
of the Company in U.S. Dollars.
"U.S. Swing Line Loan" means any Swing Line Loan made available to the
Company in U.S. Dollars.
"Venturer" has the meaning given that term in the definition of Joint
Venture above.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (b) any partnership, limited liability company, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
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ARTICLE II
THE CREDITS
2.1. Commitments. From and including the date of this Agreement and prior
to the Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Revolving Credit Loans to the
Company from time to time so long as after giving effect thereto and to any
concurrent repayment of Loans (i) the Available Revolving Credit Commitment of
each Lender is greater than or equal to zero and (ii) the Aggregate Ratable
Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments. Subject to the terms of this Agreement, the Company may borrow,
repay and reborrow Revolving Credit Loans at any time prior to the Facility
Termination Date. The Revolving Credit Loans may be Floating Rate Loans or
Eurodollar Loans, or a combination thereof selected in accordance with Section
2.3 and 2.10. The Commitments to lend hereunder shall expire on the Facility
Termination Date.
2.2. Repayment of Revolving Credit Loans; Evidence of Debt.
2.2.1. The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender in U.S. Dollars the then
unpaid principal amount of each Revolving Credit Loan of such Lender on the
Facility Termination Date and on such other dates and in such other amounts as
may be required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay to the Administrative Agent for the account of each Lender
interest in U.S. Dollars on the unpaid principal amount of the Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 2.11.
2.2.2. Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing Indebtedness of the Company to such Lender
resulting from each Revolving Credit Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
2.2.3. The Administrative Agent shall maintain an account in its books and
records, with a subaccount for each Lender, in which shall be recorded (a) the
amount of each Revolving Credit Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (b) the amount of any principal or interest
due and payable or to become due and payable from the Company to each Lender
hereunder in respect of the Revolving Credit Loans and (c) both the amount of
any sum received by the Administrative Agent hereunder from the Company in
respect of the Revolving Credit Loans and each Lender's share thereof.
2.2.4. The books and records of the Administrative Agent and of each Lender
maintained pursuant to Sections 2.2.2 and 2.2.3 shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain any such books and records
or any error therein, shall not in any manner affect the obligation of the
Company to repay (with applicable interest) the Revolving Credit Loans made to
the Company by such Lender in accordance with the terms of this Agreement.
2.2.5. Any Lender may request that the Loans made by it each be evidenced
by a promissory note in substantially the form of Exhibit A to evidence such
Lender's Revolving Credit Loans. In such event, the Company shall prepare,
execute and deliver to such Lender a promissory note for such Revolving Credit
Loans payable to the order of such Lender. Thereafter, the Revolving Credit
Loans evidenced by such
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promissory note and interest thereon shall at all times (including, if
requested, after assignment pursuant to Section 13.3) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein.
2.3. Procedures for Revolving Credit Borrowing. The Company may borrow
under the Revolving Credit Commitments from time to time prior to the Facility
Termination Date on any Business Day, provided that the Company shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 a.m., Detroit time) (a) three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or (b) on the
requested Borrowing Date, otherwise, specifying in each case (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, Floating Rate Loans or a combination thereof and (iv)
if the borrowing is to be entirely or partly of Eurodollar Loans, the amount of
such Type of Loan and the length of the initial Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments shall be in an amount equal to
(A) in the case of Floating Rate Loans, $5,000,000 or a whole multiple of
$5,000,000 in excess thereof (or, if the then aggregate Available Revolving
Credit Commitments of all the Lenders are less than $5,000,000, such lesser
amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a whole multiple
of $5,000,000 in excess thereof. Upon receipt of any such notice from the
Company, the Administrative Agent shall promptly notify each Lender thereof. Not
later than 12:00 noon, Detroit time, on each requested Borrowing Date each
Lender shall make an amount equal to its Revolving Credit Commitment Percentage
of the principal amount of the Revolving Credit Loans requested to be made on
such Borrowing Date available to the Administrative Agent at its Detroit office
specified in Section 14.1 or such other office notified by the Administrative
Agent to the Lenders in U.S. Dollars and in immediately available funds. The
Administrative Agent shall on such date credit the account of the Company on the
books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.4. Termination or Reduction of Revolving Credit Commitment. The Company
may permanently reduce the Aggregate Revolving Credit Commitments, in whole or
in part, ratably among the Lenders in integral multiples of $10,000,000, upon at
least three Business Days' written notice to the Administrative Agent, which
notice shall specify the amount of any such reduction, provided, however, that
the Aggregate Revolving Credit Commitments may not be reduced below the
aggregate principal amount of the outstanding Revolving Credit Loans,
Multicurrency Loans, Swing Line Loans and Facility Letters of Credit and the
reduction of any Lender's Revolving Credit Commitment shall also reduce such
Lender's Multicurrency Commitment with respect to Pro Rata Multicurrency Loans
by a proportionate amount. In addition, all accrued facility fees shall be
payable on the effective date of any termination of the Revolving Credit
Commitments.
2.5. Multicurrency Commitments. Subject to the terms and conditions
hereof, each Designated Multicurrency Lender with respect to any Borrower
severally agrees to make revolving credit loans (each a "MULTICURRENCY LOAN") to
the Company in any Available Foreign Currency or to any Foreign Subsidiary
Borrower in any Available Foreign Currency or in U.S. Dollars, as the case may
be, from time to time prior to the Facility Termination Date so long as after
giving effect thereto and any concurrent repayment or prepayment of Loans (a)
the Available Pro Rata Multicurrency Commitment and the Available Non-Pro Rata
Multicurrency Commitment, as applicable, of each Multicurrency Lender is greater
than or equal to zero, (b) the Aggregate Multicurrency Outstandings of all
Lenders does not exceed an amount of which the U.S. Dollar Equivalent (as at
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the date of such Multicurrency Loan) equals the Aggregate Multicurrency
Commitments, (c) the Aggregate Multicurrency Outstandings of all the Lenders
solely with respect to all Non-Pro Rata Multicurrency Loans does not exceed an
amount of which the U.S. Dollar Equivalent (as at the date of such Non-Pro Rata
Multicurrency Loan) equals the Aggregate Activated Non-Pro Rata Multicurrency
Commitments, and (d) the Aggregate Ratable Outstandings of all Lenders do not
exceed the Aggregate Revolving Credit Commitments. Prior to the Facility
Termination Date, any Borrower may use the Multicurrency Commitments by
borrowing, repaying the Multicurrency Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
2.5.1. Repayment of Multicurrency Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay to the Administrative Agent (at
a funding or payment office as may be specified by the Administrative Agent, in
consultation with the Company) for the account of each applicable Designated
Multicurrency Lender (or, at the option of the Administrative Agent, in
consultation with the Company, with respect to any Non-Pro Rata Multicurrency
Loans, directly to each relevant Designated Multicurrency Lender with prior
notice to such Designated Multicurrency Lender), in the applicable Available
Foreign Currency or U.S. Dollars, as the case may be, for such Multicurrency
Loan, the then unpaid principal amount of each Multicurrency Loan of such
Designated Multicurrency Lender to such Borrower on the Facility Termination
Date and on such other date(s) and in such other amounts as may be required from
time to time pursuant to this Agreement. Each Borrower hereby further agrees to
pay interest for the account of the applicable Designated Multicurrency Lenders
in the applicable Available Foreign Currency or U.S. Dollars, as the case may
be, on the unpaid principal amount of the Multicurrency Loans advanced to it and
from time to time outstanding until payment thereof in full at the rates per
annum, and on the dates, set forth in Section 2.11.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Borrower
to such Multicurrency Lender resulting from each Multicurrency Loan of such
Multicurrency Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Multicurrency Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain an account in its books and
records, with a subaccount therein for each Multicurrency Lender, in which shall
be recorded (i) the amount of each Multicurrency Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Multicurrency Lender hereunder in respect of the
Multicurrency Loans and (iii) both the amount of any sum received by the
Administrative Agent hereunder from each Borrower in respect of the
Multicurrency Loans and each Multicurrency Lender's share thereof.
(d) The entries made on the Administrative Agent's books and records and
the accounts of each Multicurrency Lender maintained pursuant to this Section
2.5.1 shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of each Borrower therein
recorded; provided, however, that the failure of any Multicurrency Lender or the
Administrative Agent to maintain any such account, or any error therein, shall
not in any manner affect the obligation of such Borrower to repay (with
applicable interest) the Multicurrency Loans made to such Borrower by such
Multicurrency Lender in accordance with the terms of this Agreement.
(e) The Administrative Agent agrees, in consultation with the Company
and to the extent it may lawfully do so, to designate a subsidiary, branch or
affiliate of the Administrative Agent to act as the administrative agent in
connection with any Multicurrency Loan (including as a funding or payment
office), to the extent required under applicable law to assure that Non-Excluded
Taxes are not required to be withheld or paid by any Borrower in respect of
Multicurrency Loans made to such Borrower and shall furnish to the Company such
forms, certifications, opinions and statements as may be reasonably requested by
the Company (and any material expense of the Administrative Agent in connection
with such forms,
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certifications, opinions and statements shall be paid by the Company) to confirm
that such subsidiary, branch or affiliate is entitled to fund Multicurrency
Loans and receive payments in respect of Multicurrency Loans, for itself and on
behalf of any Designated Multicurrency Lender, without deduction or withholding
of any Non-Excluded Taxes. Any such subsidiary, branch or affiliate designated
pursuant to this section shall for all such purposes be deemed to be the
Administrative Agent as such term is used in this Agreement.
2.5.2. Procedure for Pro Rata and Activated Non-Pro Rata Multicurrency
Borrowings. Any Borrower may request the applicable Designated Multicurrency
Lenders to make Pro Rata Multicurrency Loans and Non-Pro Rata Multicurrency
Loans for which the applicable Multicurrency Commitments have been activated
pursuant to Section 2.6.1 at any time prior to the Facility Termination Date on
any Business Day in accordance with the terms of this Agreement; provided that
such Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 11:00 a.m. Detroit
time, five Business Days prior to the requested Borrowing Date) specifying in
each case (i) the amount and currency to be borrowed, (ii) the requested
Borrowing Date and (iii) the length of the initial Interest Period therefor.
Each borrowing under the Multicurrency Commitments shall be in an amount in U.S.
Dollars equal to, or an amount in an Available Foreign Currency of which the
U.S. Dollar Equivalent is equal to, at least $5,000,000 (or, if the then
aggregate Available Pro Rata Multicurrency Commitment or the Available Non-Pro
Rata Multicurrency Commitment, as applicable, of all the applicable Designated
Multicurrency Lenders are less than $5,000,000, such lesser amount). Upon
receipt of any such notice from any Borrower, the Administrative Agent shall
promptly notify each Designated Multicurrency Lender with respect to such
Borrower. Not later than 2:00 p.m., London time, on the requested Borrowing
Date, each such Designated Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the Administrative Agent's funding office for such
Borrower specified by the Administrative Agent from time to time by notice to
such Designated Multicurrency Lenders and in immediately available or other same
day funds customarily used for settlement in such Available Foreign Currency.
The amounts made available by each such Designated Multicurrency Lender will
then be made available to the relevant Borrower at the funding office for such
Borrower and in like funds as received by the Administrative Agent.
2.5.3. Termination or Reduction of Pro Rata Multicurrency Commitments. The
Company shall have the right, upon not less than three Business Days' written
notice to the Administrative Agent, to terminate the Multicurrency Commitments
with respect to Pro Rata Multicurrency Loans or, from time to time, to reduce
the amount of such Multicurrency Commitments; provided that no such termination
or reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the Available Pro
Rata Multicurrency Commitment of any Multicurrency Lender would be less than
zero. Any such reduction shall be in an amount equal to the U.S. Dollar
Equivalent of at least $5,000,000, and shall reduce permanently the
Multicurrency Commitments then in effect.
2.5.4. Designated Multicurrency Lenders. With respect to the Pro Rata
Multicurrency Loans made hereunder, each Lender shall be deemed to be a
Designated Multicurrency Lender upon becoming a party hereto. With respect to
the Non-Pro Rata Multicurrency Loans made hereunder, each Multicurrency Lender
designated by the Company in writing to the Administrative Agent as a Designated
Multicurrency Lender with respect to any Borrower shall be deemed a Designated
Multicurrency Lender with respect to such Borrower when such designation by the
Company is accepted in writing to the Administrative Agent by such proposed
Designated Multicurrency Lender in its discretion. Subject to Section 2.6.4,
such designation for any Designated Multicurrency Lender with respect to Non-Pro
Rata Multicurrency Loans may be revoked at any time by mutual agreement between
such Designated Multicurrency Lender and the Company.
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2.6. Special Provisions for Non-Pro Rata Multicurrency Loans.
2.6.1. Activation of Multicurrency Commitments for Non-Pro Rata
Multicurrency Loans. On the date (the "ACTIVATION DATE") that is ten Business
Days following the Administrative Agent's receipt of (i) irrevocable notice (an
"ACTIVATION REQUEST") from any Borrower, indicating that it intends to activate
Multicurrency Commitments with respect to which Non-Pro Rata Multicurrency Loans
for which Commitments are not currently activated hereunder and setting forth
(x) the applicable Available Foreign Currency, (y) the U.S. Dollar Equivalent of
the aggregate Multicurrency Commitments to be activated (which equivalent amount
shall be at least $10,000,000) and (z) the applicable Designated Multicurrency
Lenders and their respective Multicurrency Commitments allocated to such Non-Pro
Rata Multicurrency Loans, and (ii) if such Borrower is a new Foreign Subsidiary
Borrower, each item required pursuant to Section 8.2.2 hereof, the Multicurrency
Commitments of all Designated Multicurrency Lenders with respect to such
Borrower in such currency shall become activated in such amounts. Immediately
upon delivery of the Activation Request set forth in clause (i) above, the
Administrative Agent shall adjust the Commitments hereunder (and the percentages
or other related concepts affected thereby) in the manner set forth below to
reflect such activation:
(i) the Activated Non-Pro Rata Multicurrency Commitment of each
Designated Multicurrency Lender for the applicable Borrower and Available
Foreign Currency shall be increased to the appropriate amount, the U.S.
Dollar Equivalent of which shall be reflected on Schedule 1 hereto;
(ii) the Revolving Credit Commitment of such Lender shall be
reduced by an amount, the U.S. Dollar Equivalent of which is the amount of
such Lender's Activated Non-Pro Rata Multicurrency Commitment with respect
to such Borrower in the applicable Available Foreign Currency;
(iii) the Aggregate Multicurrency Commitments shall be reduced by an
amount, the U.S. Dollar Equivalent of which is the aggregate of the
Activated Non-Pro Rata Multicurrency Commitments for each Designated
Multicurrency Lender with respect to such Non-Pro Rata Multicurrency Loans;
and
(iv) the Aggregate Revolving Credit Commitments shall be reduced by
an amount, the U.S. Dollar Equivalent of which is the aggregate of the
Activated Non-Pro Rata Multicurrency Commitments for each Designated
Multicurrency Lender with respect to such Non-Pro Rata Multicurrency Loans.
Each Advance made hereunder following delivery of such Activation Request shall
be made having given effect to the foregoing adjustments.
2.6.2. Purchase and Sale of Outstanding Loans to Effect Commitment
Adjustments. (a) Outstanding Floating Rate Loans. Immediately upon the delivery
of an Activation Request, to the extent not prohibited by a Requirement of Law
or otherwise pursuant to the terms hereof, each Lender severally,
unconditionally and irrevocably agrees that it shall sell and assign or purchase
and assume in U.S. Dollars an undivided percentage interest in and to all
Floating Rate Loans then outstanding in an amount in order to give effect to its
new Revolving Loan Commitment Percentage of the outstanding principal amount of
such Floating Rate Loans, as determined pursuant to Section 2.6.1 above. Each
Lender purchasing an interest pursuant to this Section will immediately transfer
to the Administrative Agent in immediately available funds, the amounts of its
purchased interest, and the proceeds of such interest shall be distributed by
the
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Administrative Agent to each Lender from which an interest is being purchased in
the amount(s) provided for in the preceding sentence. All such Loans shall bear
interest at the rate which would otherwise be applicable to Floating Rate Loans.
(b) Outstanding Fixed Rate Loans. Immediately upon the delivery of an
Activation Request, to the extent not prohibited by a Requirement of Law or
otherwise pursuant to the terms hereof, each Lender severally, unconditionally
and irrevocably agrees that it shall sell and assign or purchase and assume in
U.S. Dollars an undivided percentage interest in all Fixed Rate Loans then
outstanding in an amount in order to give effect to its new Revolving Loan
Commitment Percentage or Multicurrency Percentage, as applicable, of the
outstanding principal amount of such Fixed Rate Loans, as determined pursuant to
Section 2.6.1 above. Notwithstanding the sale and assignment or purchase and
assumption of such interest upon the delivery of an Activation Request, each
Lender purchasing an interest pursuant to this Section will immediately transfer
to the Administrative Agent in immediately available funds, the amounts of its
purchased interest, and the proceeds of such interest shall be distributed by
the Administrative Agent to each Lender from which an interest is being
purchased in the amount(s) provided for in the preceding sentence on the last
day of the then current Interest Period for any such Fixed Rate Loans. All such
Loans shall bear interest at the rate which would otherwise be applicable to
Fixed Rate Loans.
2.6.3. Procedure for Borrowing Activated Non-Pro Rata Multicurrency Loans.
Any Borrower may request the applicable Designated Multicurrency Lenders to make
Non-Pro Rata Multicurrency Loans at any time prior to the earlier of the
Facility Termination Date and the Deactivation Date for such Loans on any
Business Day in accordance with the terms of Section 2.5.2 and as otherwise set
forth in this Agreement; provided, that no Advances shall be made with respect
to the initial borrowings of any activated Non-Pro Rata Multicurrency Loans
until the later of (i) the relevant Activation Date and (ii) the date that is
five Business Days following the Administrative Agent's receipt of a borrowing
notice delivered in compliance with Section 2.5.2.
2.6.4. Deactivation or Reduction of Activated Non-Pro Rata Multicurrency
Loan Commitments. Any Borrower shall have the right, on the date (the
"DEACTIVATION DATE") that is five Business Days after the Administrative Agent's
receipt of written notice of such Borrower's intent to terminate the Activated
Non-Pro Rata Multicurrency Commitments or, from time to time, to reduce the
amount of such Non-Pro Rata Multicurrency Commitments outstanding in favor of
such Borrower in an applicable Available Foreign Currency; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective date thereof, the
Available Non-Pro Rata Multicurrency Commitment of any applicable Designated
Multicurrency Lender for such Non-Pro Rata Multicurrency Loans would be less
than zero. Any such reduction shall be in a minimum amount, the U.S. Dollar
Equivalent of which is at least $5,000,000 and shall reduce permanently the
Activated Non-Pro Rata Multicurrency Commitments then in effect for such Non-Pro
Rata Multicurrency Loans. Immediately upon any such termination or reduction of
the Activated Non-Pro Rata Multicurrency Commitments, the Administrative Agent
shall adjust the Commitments of the Lenders in the reverse manner of that
described in Section 2.6.1 above and the Lenders shall purchase and sell
undivided percentage interests in and to the Loans in the reverse manner of that
describe in Section 2.6.2.
2.7. Swing Line Loans. Subject to the terms and conditions hereof, the
Swing Line Bank may, in its discretion, make swing line loans to any Borrower
from time to time, in an amount not to exceed the Swing Line Commitment (each a
"SWING LINE LOAN") in any Available Foreign Currency or U.S. Dollars, as the
case may be, to such Borrower from time to time prior to the Facility
Termination Date so long as after giving effect thereto and any concurrent
repayment or prepayment of Loans, (a) the aggregate outstanding principal amount
of the Swing Line Loans does not exceed an amount of which the U.S. Dollar
Equivalent
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is the Swing Line Commitment, (b) the sum of (i) the outstanding principal
amount of the Swing Line Loans, plus (ii) the Aggregate Ratable Outstandings of
the Swing Line Bank does not exceed the Swing Line Bank's Revolving Credit
Commitment at such time, (c) the Aggregate Multicurrency Outstandings of all
Lenders does not exceed an amount of which the U.S. Dollar Equivalent (as at the
date of such Multicurrency Loan) equals the Aggregate Multicurrency Commitments,
(d) the Aggregate Multicurrency Outstandings of all Lenders solely with respect
to all Non-Pro Rata Multicurrency Loans does not exceed an amount of which the
U.S. Dollar Equivalent (as at the date of such Non-Pro Rata Multicurrency Loan)
equals the Aggregate Activated Non-Pro Rata Multicurrency Commitments, (e) the
sum of (i) the outstanding principal amount of the Multicurrency Swing Line
Loans in a particular Available Foreign Currency plus the outstanding principal
amount of all other outstanding Multicurrency Loans in such currency does not
exceed the aggregate Multicurrency Commitments of all Designated Multicurrency
Lenders with respect to such Borrower and such currency, and (f) the Aggregate
Ratable Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments; provided, however, that no Multicurrency Swing Line Loans shall be
made hereunder unless sufficient Multicurrency Commitments in the applicable
Available Foreign Currency for the applicable Borrower have been activated in
accordance with Section 2.6.1. Prior to the Facility Termination Date, any
Borrower may use the Swing Line Loans by borrowing, repaying the Swing Line
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
2.7.1. Procedure for Swing Line Borrowings. The Company may request the
Swing Line Bank to make U.S. Swing Line Loans and any Borrower may request the
Swing Line Bank to make Multicurrency Swing Line Loans at any time prior to the
Facility Termination Date on any Business Day in accordance with the terms of
this Agreement; provided that such Borrower shall give the Administrative Agent
and the Swing Line Bank irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 a.m., Detroit time, on the requested
Borrowing Date, or such other time as may be agreed upon with respect to
Multicurrency Swing Line Loans) specifying in each case (i) the applicable
Borrowing Date (which date shall be a Business Day and which may be the same
date as the date the notice is given) and (ii) the aggregate amount and currency
of the requested Swing Line Loan. Each borrowing under the Swing Line Commitment
shall be in an amount in U.S. Dollars equal to, or an amount in an Available
Foreign Currency of which the U.S. Dollar Equivalent is equal to, at least
$1,000,000 (or, if the then aggregate Available Revolving Credit Commitments of
all the Lenders, Available Pro Rata Multicurrency Commitment of all the Lenders
or the Available Non-Pro Rata Multicurrency Commitment of the applicable
Designated Multicurrency Lenders, as applicable, are less than the U.S. Dollar
Equivalent of $1,000,000, such lesser amount). All U.S. Swing Line Loans shall
be Floating Rate Loans or such other rate as may be agreed to between the
Company and the Swing Line Bank. All Multicurrency Swing Line Loans shall bear
interest at such other rate as shall be agreed to between the applicable
Borrower and the Swing Line Bank at the time of the making of such Swing Line
Loans.
2.7.2. Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the applicable Borrower on or before the tenth Business Day after the
Borrowing Date for such Swing Line Loan. The applicable Borrower may at any time
pay, without penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount equal to the U.S. Dollar Equivalent of $1,000,000, any portion of
the outstanding Swing Line Loans, upon notice to the Administrative Agent and
the Swing Line Bank. In addition, the Administrative Agent (i) may at any time
in its sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall, in the event the applicable Borrower shall not have otherwise repaid such
Loan, on the tenth Business Day after the Borrowing Date of any Swing Line Loan,
(x) if the applicable Swing Line Loan is a U.S. Swing Line Loan, require each
Lender (including the Swing Line Bank) to make a Revolving Credit Loan in the
Dollar amount of such Lender's Revolving Credit Commitment Percentage of such
Swing Line Loan, and (y) if the applicable Swing Line Loan is a Multicurrency
Swing Line Loan,
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Require each Designated Multicurrency Lender (including the Swing Line Bank)
with respect to such Borrower for the applicable Available Foreign Currency to
make a Multicurrency Loan in such Designated Multicurrency Lender's
Multicurrency Commitment Percentage of such Swing Line Loan, for the purpose of
repaying such Swing Line Loan. The making of such Loans by the Lenders shall
discharge the applicable Borrower's obligation under the first sentence of this
Section 2.7.2 and such failure to pay shall not constitute a Default by such
Borrower. Promptly following receipt of notice pursuant to this Section 2.7.2
from the Administrative Agent, each Lender shall make available its required
Loan or Loans, in funds immediately available in Detroit to the Administrative
Agent at the address specified in Section 14.1 or at such other address notified
by the Administrative Agent to the Lenders. Loans made to the Company in U.S.
Dollars pursuant to this Section 2.7.2 shall initially be Floating Rate Loans
and thereafter may be continued as Floating Rate Loans or converted into
Eurodollar Loans in the manner provided in Section 2.10 and subject to the other
conditions and limitations therein set forth and set forth in this Article II.
Loans made to any Borrower in currencies other than U.S. Dollars pursuant to
this Section 2.7.2 shall be made, converted or continued as may be reasonably
determined by the Company from the options made available by the Swing Line
Bank. Unless a Lender shall have notified the Swing Line Bank, prior to its
making any Swing Line Loan, that any applicable condition precedent set forth in
Section 4.1 or 4.2 had not then been satisfied, such Lender's obligation to make
Loans pursuant to this Section 2.7.2 to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be affected by
any circumstances, including, without limitation, (a) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the
Administrative Agent, the Swing Line Bank or any other Person, (b) the
occurrence or continuance of a Default or Unmatured Default, (c) any adverse
change in the financial condition of any Borrower or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender fails
to make payment to the Administrative Agent of any amount due under this Section
2.7.2, the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if any Revolving Credit Loan or Multicurrency Loan cannot for any
reason be made on the date required above or if for any other reason any Lender
fails to make payment to the Administrative Agent of any amount due under this
Section 2.7.2, such Lender shall be deemed, at the option of the Administrative
Agent, to have unconditionally and irrevocably purchased from the Swing Line
Bank, without recourse or warranty, an undivided interest and participation in
the applicable Swing Line Loan in the U.S. Dollar Equivalent of such Revolving
Credit Loan or Multicurrency Loan, as applicable, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received in accordance
with Section 2.18. Without limiting the foregoing, immediately upon any
Conversion Event, the provisions of Section 12.4 shall apply to any
Multicurrency Swing Line Loans. On the Facility Termination Date, the Borrowers
shall repay in full the outstanding principal balance of the Swing Line Loans.
2.8. Facility, Utilization and Agent Fees. (a) The Company agrees to pay
to the Administrative Agent for the account of each Lender a facility fee at the
rate per annum set forth in the Pricing Schedule on Exhibit B attached hereto,
on the amount of such Lender's Revolving Credit Commitment, whether used or
unused, from and including the Effective Date to but excluding the Facility
Termination Date, payable on each Payment Date hereafter and on the Facility
Termination Date.
(b) If, on any date, the average daily Combined Utilized Amount exceeds
fifty percent (50%) of the Combined Commitment then in effect on such date, the
Company will pay to the Administrative Agent for the ratable benefit of the
Lenders a utilization fee of 0.125% per annum on the Aggregate Ratable
Outstandings of all Lenders plus the Aggregate Non-Pro Rata Multicurrency
Outstandings of all
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Lenders as of such date. The accrued fees owing pursuant to this Section 2.8(b)
shall be payable on each Payment Date hereafter and on the Facility Termination
Date.
(c) The Company agrees to pay to the Administrative Agent and the
Syndication Agent, in each case for their own account, such other fees as agreed
to between the Company and the Administrative Agent and between the Company and
the Syndication Agent, including pursuant to those separate fee letters dated
May 25, 2000.
2.9. Optional and Mandatory Principal Payments on All Loans.
2.9.1. The Company may at any time and from time to time prepay Floating
Rate Loans, in whole or in part, without penalty or premium, upon at least one
Business Day's irrevocable notice to the Administrative Agent, specifying the
date and amount of prepayment. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayment of Floating Rate Loans shall be in a minimum aggregate amount of
$5,000,000 or any integral multiple of $1,000,000 in excess thereof.
2.9.2. Each Borrower may at any time and from time to time prepay, without
premium or penalty but upon payment of any amount payable pursuant to Section
3.4, its Eurodollar Loans and its Multicurrency Loans in whole or in part, upon
at least three Business Days' irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Partial prepayments of Eurodollar
or Multicurrency Loans shall be in an aggregate principal amount of which the
U.S. Dollar Equivalent is at least $5,000,000, or such lesser principal amount
as may equal the outstanding Eurodollar or Multicurrency Loans.
2.9.3. If at any time, for any reason, the Aggregate Ratable Outstandings
of all Lenders exceed the Aggregate Revolving Credit Commitments then in effect,
(a) the Company shall, without notice or demand, immediately prepay the
Revolving Credit Loans and/or (b) the Borrowers shall, without notice or demand,
immediately prepay the Multicurrency Loans such that the sum of (i) the
aggregate principal amount of Revolving Credit Loans so prepaid and (ii) the
U.S. Dollar Equivalent of the aggregate principal amount of Multicurrency Loans
so prepaid, at least equals the amount of such excess.
2.9.4. If, at any time for any reason, the Aggregate Multicurrency
Outstandings of all Multicurrency Lenders to any Borrower exceed 105% of the
aggregate Multicurrency Commitments of the Multicurrency Lenders to such
Borrower (whether as a result of fluctuations in currency exchange rates or
otherwise), the applicable Borrower shall, without notice or demand, immediately
prepay its Multicurrency Loans in amounts such that the Multicurrency Loans so
prepaid at least equals the amount of such excess.
2.9.5. If at any time, for any reason, either (a) the Aggregate
Multicurrency Outstandings of all Multicurrency Lenders exceed 105% of the
Aggregate Multicurrency Commitments plus the Aggregate Activated Non-Pro Rata
Multicurrency Commitments or (b) the Aggregate Multicurrency Outstandings of any
Multicurrency Lender exceeds its Multicurrency Commitment (in each case, whether
as a result of fluctuations in currency exchange rates or otherwise), the
Borrowers shall, without notice or demand, immediately prepay the Multicurrency
Loans or deliver notice of their intent to deactivate Activated Non-Pro Rata
Multicurrency Commitments pursuant to Section 2.6.4 in amounts such that the
U.S. Dollar Equivalent of the Multicurrency Loans so prepaid or the Activated
Non-Pro Rata Multicurrency Commitments so deactivated, as applicable, at least
equals the amount of such excess.
2.9.6. Each prepayment and conversion pursuant to this Section 2.9 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under Section 3.4 in connection with such
payment.
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2.9.7. Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this Section 2.9 solely as a result of fluctuations in Exchange Rates from time
to time shall only be required to be made pursuant to this Section 2.9 on the
last Business Day of each month on the basis of the Exchange Rate in effect on
such Business Day.
2.9.8. Prepayments pursuant to this Section 2.9 shall be applied as
follows: (a) in the case of prepayments made by the Company of Revolving Credit
Loans, first to prepay Floating Rate Loans and second to prepay Eurodollar Loans
then outstanding in such order as the Company may direct and (b) in the case of
prepayments made by any Borrower of Multicurrency Loans, to prepay Multicurrency
Loans made to such Borrower in such order as the Company may direct.
2.9.9. All amounts prepaid may be reborrowed and successively repaid and
reborrowed, subject to the other terms and conditions in this Agreement.
2.10. Conversion and Continuation of Outstanding Advances.
2.10.1. Revolving Credit Advances. Floating Rate Advances shall continue as
Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances. Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless the Company shall have given the
Administrative Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for the same or another Interest Period or be converted into
a Floating Rate Advance. Subject to the terms hereof, the Company may elect from
time to time to convert all or any part of a Revolving Credit Advance of any
Type into any other Type or Types of Revolving Credit Advances; provided that
any conversion of any Eurodollar Advance shall be made on, and only on, the last
day of the Interest Period applicable thereto. Notwithstanding anything herein
to the contrary, no Loan may be converted to a Eurodollar Loan, and no
Eurodollar Loan may be continued as such, if any Default or Unmatured Default
has occurred and is continuing. The Company shall give the Administrative Agent
irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of an
Advance or continuation of a Eurodollar Advance not later than 11:00 a.m.
(Detroit time) at least one Business Day, in the case of a conversion into a
Floating Rate Advance or three Business Days, in the case of a conversion into
or continuation of a Eurodollar Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Revolving Credit Advance
which is to be converted or continued, and
(iii) the amounts and Type(s) of Revolving Credit Advance(s) into
which such Revolving Credit Advance is to be converted or continued and, in
the case of a conversion into or continuation of a Eurodollar Advance, the
duration of the Interest Period applicable thereto.
2.10.2. Multicurrency Advances. Any Multicurrency Advances may be continued
as such upon the expiration of the then current Interest Period with respect
thereto by the relevant Borrower giving the Administrative Agent irrevocable
notice of such election by not later than 11:00 a.m. (Detroit time) at least
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five Business Days prior to the applicable continuation date, provided, that if
the relevant Borrower shall fail to give such notice, such Multicurrency Advance
shall be automatically continued for an Interest Period of one month provided
that such continuation would not extend the Interest Period beyond the Facility
Termination Date.
2.11. Interest Rates; Interest Payment Dates; Interest and Fee Basis. (a)
Each Floating Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Loan is made or is
converted from a Fixed Rate Loan into a Floating Rate Loan pursuant to Section
2.10 to but excluding the date it becomes due or is converted into a Fixed Rate
Loan pursuant to Section 2.10 hereof, at a rate per annum equal to the Floating
Rate for such day. Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period. Each Floating Rate Loan
shall bear interest for each day that it is outstanding at a rate per annum
equal to the Floating Rate for such day. Each Multicurrency Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the applicable Eurocurrency Rate determined for such Interest
Period. All U.S. Swing Line Loans shall bear interest for each day that it is
outstanding at a rate per annum equal to the Floating Rate for such day or such
other rate as may be agreed to by the applicable Borrower and the Swing Line
Bank. All Multicurrency Swing Line Loans shall bear interest at such other rate
as shall be agreed to between the applicable Borrower and the Swing Line Bank at
the time of the making of such Swing Line Loans.
(b) Interest accrued on each Floating Rate Advance shall be payable
quarterly, in arrears, on each Payment Date, commencing with the first such date
to occur after the date hereof and at maturity. Interest accrued on each Fixed
Rate Advance shall be payable on the last day of its applicable Interest Period,
on any date on which the Fixed Rate Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Fixed Rate Advance
having an Interest Period longer than three months shall also be payable on the
last day of each three-month interval during such Interest Period.
(c) Interest shall be payable for the day an Advance is made but not for
the day of any payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. If any payment of principal of or interest
on an Advance shall become due on a day which is not a Business Day, except as
otherwise provided in the definition of Interest Period, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
(d) All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period such interest or fee is payable over a year comprised of 360
days (or in the case of interest on Floating Rate Loans for which the Prime Rate
is the basis, 365 days or, if appropriate, 366 days), except if otherwise
specified on Schedule 2 with respect to the Eurocurrency Base Rate or as the
market otherwise dictates for Multicurrency Loans.
(e) For the purposes of the Interest Act (Canada) hereunder (i) whenever
interest payable pursuant to this Agreement is calculated with respect to any
monetary Obligation relating to Loans to Canadian Borrowers on the basis of a
period other than a calendar year (the "CALCULATION PERIOD"), each rate of
interest determined pursuant to such calculation expressed as an annual rate is
equivalent to such rate as so determined, multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and divided by
the number of days in the Calculation Period; (ii) the principal of deemed
reinvestment of interest with respect to any monetary Obligation relating to
Loans in Canadian dollars shall not apply to any interest calculation under this
agreement, and (iii) the rates of interest with respect to any monetary
Obligation relating to Loans to Canadian Borrowers stipulated in this Agreement
are intended to be nominal rates and not effective rates or yields.
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(f) Without limiting any of the foregoing, interest payable on any
Advances hereunder of Non-Pro Rata Multicurrency Loans shall be payable by the
applicable Borrower solely for the account of the Designated Multicurrency
Lenders having an Activated Non-Pro Rata Multicurrency Commitment with respect
to such Loans.
2.12. Changes in Interest Rate, etc. Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each Fixed
Rate Advance shall bear interest on the outstanding principal amount thereof
from and including the first day of the Interest Period applicable thereto to
(but not including) the last day of such Interest Period at the interest rate
determined as applicable to such Fixed Rate Advance. No Interest Period may end
after the Facility Termination Date.
2.13. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in this Article II, during the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrowers (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that no Advance may be made as, converted into or
continued (after the expiration of the current Interest Period) as a Fixed Rate
Advance. If the principal portion of any Advance is not paid at maturity,
whether by acceleration or otherwise, the Required Lenders may, at their option,
by notice to the Company (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders as to changes and interest rates) declare that
(i) each Fixed Rate Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum and (ii) each Floating Rate Advance shall bear interest
at a rate per annum equal to the Floating Rate otherwise applicable to the
Floating Rate Advance plus 2% per annum. If any payment of interest, fees or
other amounts is not paid when due hereunder, whether by acceleration or
otherwise, the Required Lenders may, at their option, by notice to the Company
(which notice may be revoked at the option of the Required Lenders
notwithstanding Section 8.2) declare that such amounts shall bear interest at
the Floating Rate plus 2% per annum.
2.14. Pro Rata Payment, Method of Payment.
2.14.1. Each borrowing of Revolving Credit Loans by the Company from the
Lenders shall be made pro rata according to the Revolving Credit Commitment
Percentages of the Lenders in effect on the date of such borrowing. Each payment
by the Company on account of any facility fee shall be allocated by the
Administrative Agent among the Lenders in accordance with the respective amounts
which such Lenders are entitled to receive pursuant to Section 2.8. Any
reduction by the Company of the Revolving Credit Commitments of the Lenders
shall be allocated by the Administrative Agent among the Lenders pro rata
according to the Revolving Credit Commitment Percentages of the Lenders. Except
as provided in Section 2.9, each payment (other than any optional prepayment) by
the Company on account of principal of the Revolving Credit Loans shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts thereof then due and owing to each Lender. Except
as provided in Section 2.9, each optional prepayment by the Company on account
of principal or interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof. All payments (including prepayments) to be made by the Company
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article XIV,
or at any
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other Lending Installation of the Administrative Agent specified in writing by
the Administrative Agent to the Company, by 1:00 p.m. (Detroit time) on the
date. Except as otherwise provided in Sections 2.5.1, 2.6, 2.7 (with respect to
Multicurrency Swing Line Loans), 2.14.2, 2.19 (with respect to Multicurrency
Facility Letters of Credit) and 16.6 all payments hereunder shall be made in
U.S. Dollars. Each payment delivered to the Administrative Agent for the account
of any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its
address specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender. The
Administrative Agent is hereby authorized to charge the account of the Company
maintained with Bank One for each payment of principal, interest and fees as it
becomes due hereunder.
2.14.2. Except as provided in Section 2.6, 2.7, 2.7.2 or 2.19.5, each
borrowing of Multicurrency Loans by any Borrower in any Available Foreign
Currency or U.S. Dollars, as the case may be, shall be allocated by the
Administrative Agent pro rata according to the Multicurrency Commitment
Percentages of the Designated Multicurrency Lenders with respect to such
Borrower in effect on the date of such Loan (it being understood that for all
Pro Rata Multicurrency Loans, the Multicurrency Commitment Percentage of any
Lender shall be equal to such Lender's Revolving Credit Commitment Percentage).
Any reduction of the Multicurrency Commitments shall be allocated by the
Administrative Agent pro rata according to the Multicurrency Commitment
Percentages of the Designated Multicurrency Lenders in effect on the date of
such Loan. Except as provided in Section 2.9, each payment (including each
prepayment) by a Borrower on account of principal of and interest on
Multicurrency Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Multicurrency Loans then
due and owing by such Borrower to each Designated Multicurrency Lender that made
such Multicurrency Loans. All payments (including prepayments) to be made by a
Borrower on account of Multicurrency Loans, whether on account of principal,
interest, fees or otherwise, shall be without setoff, deduction, or counterclaim
and shall be made prior to 12:00 noon, London time, on the due date thereof to
the Administrative Agent for the account of the Designated Multicurrency Lenders
that made such Loans, at the payment office for such Multicurrency Loans
specified from time to time by the Administrative Agent by notice to the
Borrowers, in the currency of such Multicurrency Loan and in immediately
available funds. The Administrative Agent shall distribute such payment to the
Designated Multicurrency Lenders entitled to receive the same promptly upon
receipt in like funds as received.
2.15. Telephonic Notices. Each Borrower hereby authorizes the Lenders and
the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender
reasonably and in good faith believes to be an Authorized Officer. Each Borrower
agrees to deliver promptly to the Administrative Agent a written confirmation,
if such confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error.
2.16. Notification of Advances, Interest Rates, Prepayments, Activation of
Non-Pro Rata Multicurrency Loans and Commitment Reductions. Promptly after
receipt thereof, the Administrative Agent will notify each Lender of the
contents of each Revolving Credit Commitment reduction notice, Multicurrency
Commitment reduction notice, borrowing notice, Non-Pro Rata Multicurrency Loan
activation notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Administrative Agent will notify each Lender of the
interest rate applicable to each Fixed Rate Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate.
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2.17. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the promissory notes, if any, shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by written
or telex notice to the Administrative Agent and the applicable Borrower,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18. Non-Receipt of Funds by the Administrative Agent. Unless a Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent
(including, without limitation, any payment pursuant to Section 12.4) of (a) in
the case of a Lender, the proceeds of a Loan or (b) in the case of a Borrower, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.19. Facility Letters of Credit.
2.19.1. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the Company
herein set forth, the Issuers hereby agree to issue through such of the Issuer's
Lending Installations or Affiliates as the Issuer and a Borrower may jointly
agree, for the account of the Company, one or more U.S. Facility Letters of
Credit and for the account of any Borrower, one or more Multicurrency Facility
Letters of Credit, in each case, in accordance with this Section 2.19, from time
to time during the period, commencing on the Closing Date and ending five
Business Days prior to the Facility Termination Date; provided, however, that no
Multicurrency Facility Letters of Credit shall be issued hereunder unless
sufficient Multicurrency Commitments in the applicable Available Foreign
Currency for the applicable Borrower have been activated in accordance with
Section 2.6.1.
2.19.2. Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2, the obligation
of an Issuer to issue any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
(b) the requested Facility Letter of Credit has an expiration date of
the earlier of (i) one year after the date of issuance and (ii) five Business
Days prior to the Facility Termination Date; provided, that any Facility Letter
of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which in no event shall extend beyond the date
referred to in clause (ii) above);
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(c) after giving effect to the Facility Letter of Credit requested
hereunder, (i) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers shall not exceed an amount of
which the U.S. Dollar Equivalent is $100,000,000, (ii) the Available Revolving
Credit Commitment of each Lender is greater than or equal to zero, (iii) the
Available Pro Rata Multicurrency Commitment and the Available Non-Pro Rata
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (iv) the Aggregate Multicurrency Outstandings of all Lenders solely
with respect to all Non-Pro Rata Multicurrency Loans does not exceed an amount
of which the U.S. Dollar Equivalent (as at the date of such Non-Pro Rata
Multicurrency Loan) equals the Aggregate Activated Non-Pro Rata Multicurrency
Commitments, (v) the sum of (i) the aggregate maximum amount then available for
drawing under any Facility Letter of Credit issued in an Available Foreign
Currency plus the outstanding principal amount of all other outstanding
Multicurrency Loans and Multicurrency Swing Line Loans in such currency does not
exceed the aggregate Multicurrency Commitments of all Designated Multicurrency
Lenders with respect to such Borrower and such currency, and (vi) the Aggregate
Ratable Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments;
(d) the applicable Borrower shall have delivered to the applicable
Issuer at such times and in such manner as such Issuer may reasonably prescribe
such documents and materials as may be required pursuant to the terms of the
proposed Letter of Credit and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or decree of any
Court, arbitrator or governmental authority shall purport by its terms to enjoin
or restrain such Issuer from issuing the Facility Letter of Credit and no law,
rule or regulation applicable to such Issuer and no request or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuer shall prohibit or request that such Issuer refrain
from the issuance of Letters of Credit generally or the issuance of that
Facility Letter of Credit.
2.19.3. Procedure for Issuance of Facility Letters of Credit. (a) The
applicable Borrower shall give one of the Issuers and the Administrative Agent
five Business Days' prior written notice of any requested issuance of a Facility
Letter of Credit under this Agreement (except that, in lieu of such written
notice, a Borrower may give an Issuer (i) notice of such request by tested telex
or other tested arrangement satisfactory to such Issuer or (ii) telephonic
notice of such request if confirmed in writing by delivery to such Issuer and
the Administrative Agent (A) immediately (x) of a telecopy of the written notice
required hereunder which has been signed by an authorized officer of the Company
or (y) of a telex containing all information required to be contained in such
written notice and (B) promptly (but in no event later than the requested time
of issuance) of a copy of the written notice required hereunder containing the
original signature of an authorized officer of the Borrower); such notice shall
be irrevocable and shall specify the stated amount and Available Foreign
Currency or U.S. Dollars of the Facility Letter of Credit requested, the
effective date (which day shall be a Business Day) of issuance of such requested
Facility Letter of Credit, the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day and shall in no event be
later than the fifth day prior to Facility Termination Date), the purpose for
which such Facility Letter of Credit is to be issued, and the Person for whose
benefit the requested Facility Letter of Credit is to be issued. The
Administrative Agent shall give notice to each Lender of the issuance of each
Facility Letter of Credit reasonably promptly after such Facility Letter of
Credit is issued. Such notice, to be effective, must be received by such Issuer
not later than 3:00 p.m. (Detroit time) or the time agreed upon by such Issuer
and such Borrower on the last Business Day on which notice can be given under
this Section 2.19.3.
(b) Subject to the terms and conditions of this Section 2.19.3 and
provided that the applicable conditions set forth in Sections 4.1 and 4.2 hereof
have been satisfied, the Issuer shall, on the requested date, issue a Facility
Letter of Credit on behalf of the applicable Borrower in accordance with such
Issuer's usual and customary business practices.
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(c) The Issuers shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2.19 are met as though a new
Facility Letter of Credit was being requested and issued.
2.19.4. Reimbursement Obligations. (a) Each Borrower agrees to pay to
the Issuer the amount of all Reimbursement Obligations, interest and other
amounts payable to the Issuer under or in connection with any Facility Letter of
Credit issued on behalf of such Borrower immediately when due, irrespective of
any claim, setoff, defense or other right which the Borrower, the Company or any
Subsidiary may have at any time against the Issuer or any other Person, under
all circumstances, including without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which any Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of
any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), any Issuer, any Lender, or any other Person,
whether in connection with this Agreement, any Facility Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between any
Borrower or any Subsidiary and the beneficiary named in any Facility
Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of
any draw under a Facility Letter of Credit. Such Borrower shall reimburse the
applicable Issuer for drawings under a Facility Letter of Credit issued by it on
behalf of such Borrower promptly after the payment by the Issuer. Any
Reimbursement Obligation with respect to any Facility Letter of Credit shall
bear interest from the date of the relevant drawings under the pertinent
Facility Letter of Credit at the interest rate for Floating Rate Loans.
2.19.5. Letter of Credit Participation. (a) Immediately upon issuance
by an Issuer of any Facility Letter of Credit in accordance with the procedures
set forth in Section 2.19.3, (i) with respect to each U.S. Facility Letter of
Credit, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from such Issuer, without recourse or warranty, an
undivided interest and participation equal to its Revolving Credit Commitment
Percentage in such U.S. Facility Letter of Credit (including, without
limitation, all obligations of the applicable Borrower with respect thereto) and
any security therefor or guaranty pertaining thereto and (ii) with respect to
each Multicurrency Facility Letter of Credit, each Designated Multicurrency
Lender with respect to the Borrower for the account of which such Multicurrency
Facility Letter of Credit is issued shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuer, without recourse or
warranty, an undivided interest and
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participation equal to its Multicurrency Commitment Percentage in such
Multicurrency Facility Letter of Credit (including, without limitation, all
obligations of the applicable Borrower with respect thereto), any security
therefor or guaranty pertaining thereto; provided, that a Letter of Credit
issued by an Issuer shall not be deemed to be a Facility Letter of Credit for
purposes of this Section 2.19 if such Issuer shall have received written notice
from any Lender on or before one Business Day prior to the date of its issuance
of such Letter of Credit that one or more of the conditions contained in Section
4.1 or 4.2 are not then satisfied, and, in the event an Issuer receives such a
notice, it shall have no further obligation to issue any Letter of Credit until
such notice is withdrawn by that Lender or such condition has been effectively
waived in accordance with the provisions of this Agreement.
(b) In the event that an Issuer makes any payment under any
Facility Letter of Credit and the applicable Borrower shall not have repaid such
amount to the Issuer pursuant to Section 2.19.4, the Issuer shall promptly
notify the Administrative Agent and each Lender participating in such Letter of
Credit of such failure, and each Lender participating in such Letter of Credit
shall promptly and unconditionally make a Revolving Credit Loan or a
Multicurrency Loan, as applicable, to the Administrative Agent for the account
of such Issuer in the amount of such Lender's Revolving Credit Commitment
Percentage or Multicurrency Commitment Percentage, as the case may be, of the
unreimbursed amount of any such payment. If any Lender participating in such
Facility Letter of Credit fails to make available to such Issuer any Loans due
to such Issuer pursuant to this Section 2.19.5(b), such Issuer shall be entitled
to recover the amount of such unpaid Loans, together with interest thereon at
the Federal Funds Effective Rate, for the first three Business Days after such
Lender receives such notice and thereafter, at the Floating Rate, payable (i) on
demand, (ii) by setoff against any payments made to such Issuer for the account
of such Lender or (iii) by payment to such Issuer by the Administrative Agent of
amounts otherwise payable to such Lender under this Agreement. The failure of
any Lender to make available to the Administrative Agent Loans in its Revolving
Credit Commitment Percentage or Multicurrency Commitment Percentage, as the case
may be, of the unreimbursed amount of any such payment shall not relieve any
other Lender of its obligation hereunder to make available to the Administrative
Agent its Revolving Credit Commitment Percentage or Multicurrency Commitment
Percentage, as the case may be, of the unreimbursed amount of any payment on the
date such payment is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent its
Revolving Credit Commitment Percentage or Multicurrency Commitment Percentage,
as the case may be, of the unreimbursed amount of any payment on the date such
payment is to be made. In addition to the foregoing, if any Revolving Credit
Loan or Multicurrency Loan cannot for any reason be made on the date required
above or if for any other reason any Lender fails to make payment to the
applicable Issuer of any amount due under this Section 2.7.2, such Lender shall
be deemed, at the option of the Administrative Agent, to have unconditionally
and irrevocably purchased from the Issuer, without recourse or warranty, an
undivided interest and participation in the unreimbursed obligations in the U.S.
Dollar Equivalent of such unpaid amount. Without limiting the foregoing,
immediately upon any Conversion Event, the provisions of Section 12.4 shall
apply to any Multicurrency Facility Letters of Credit.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to each Lender which has funded its participating interest therein, in
immediately available funds, an amount equal to such Lender's Revolving Credit
Commitment Percentage or Multicurrency Commitment Percentage, as the case may
be, thereof.
(d) The obligations of a Lender to make payments to the
Administrative Agent with respect to a Facility Letter of Credit shall be
absolute, unconditional and irrevocable, not subject to any counterclaim,
setoff, qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances.
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(e) In the event any payment by a Borrower received by the
Administrative Agent with respect to a Facility Letter of Credit and distributed
by the Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Administrative Agent in
connection with any receivership, liquidation, reorganization or bankruptcy
proceeding, each Lender which received such distribution shall, upon demand by
the Agent, contribute such Lender's Revolving Credit Commitment Percentage or
Multicurrency Commitment Percentage, as the case may be, of the amount set
aside, avoided or recovered together with interest at the rate required to be
paid by the Administrative Agent upon the amount required to be repaid by it.
2.19.6. Compensation for Facility Letters of Credit. The Issuer of a
Facility Letter of Credit shall have the right to receive, solely for its own
account, an issuance fee and fronting fee to be agreed upon by the Issuer and
the applicable Borrower as well as the Issuer's reasonable and customary costs
of issuing and servicing the Facility Letters of Credit. In addition, such
Borrower shall pay to the Administrative Agent for the account of each Lender
participating in such Facility Letter of Credit a non-refundable fee at a per
annum rate in the amount shown on the Pricing Schedule on Exhibit B applied to
the face amount of the Facility Letter of Credit, payable quarterly in advance
to all Lenders participating in such Facility Letter of Credit (including the
Issuers) ratably from the date such Facility Letter of Credit is issued until
its stated expiry date.
2.19.7. Letter of Credit Collateral Account. Each Borrower hereby
agrees that it will, until the final expiration date of any Facility Letter of
Credit and thereafter as long as any amount is payable to the Lenders in respect
of any Facility Letter of Credit, maintain a special collateral account (the
"LETTER OF CREDIT COLLATERAL ACCOUNT") at the Administrative Agent's office at
the address specified pursuant to Article XIV, in the name of such Borrower but
under the sole dominion and control of the Administrative Agent, for the benefit
of the Lenders and in which such Borrower shall have no interest other than as
set forth in Section 8.1. The Administrative Agent will invest any funds on
deposit from time to time in the Letter of Credit Collateral Account in
certificates of deposit of the Administrative Agent having a maturity not
exceeding 30 days. Nothing in this Section 2.19.7 shall either obligate the
Administrative Agent to require any Borrower to deposit any funds in the Letter
of Credit Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Letter of Credit Collateral Account other than as
required by Section 8.1, and the Borrower's obligations to deposit funds in the
Letter of Credit Collateral Account are limited to the circumstances required by
Section 8.1.
2.19.8. Nature of Obligations. (a) As among the Borrowers, the Issuers
and the Lenders, each Borrower assumes all risks of the acts and omissions of,
or misuse of the Facility Letters of Credit by, the respective beneficiaries of
the Facility Letters of Credit requested by it. In furtherance and not in
limitation of the foregoing, the Issuers and the Lenders shall not be
responsible for (i) the forms, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of any Facility Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Facility Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of a Facility Letter of Credit to comply fully with
conditions required in order to draw upon such Facility Letter of Credit; (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; (v) errors in
interpretation of technical terms; (vi) misapplication by the beneficiary of a
Facility Letter of Credit of the proceeds of any drawing under such Facility
Letter of Credit; or (vii) any consequences arising from causes beyond the
control of the Issuers or the Lenders. In addition to amounts payable as
elsewhere provided in this Section 2.19, such Borrower hereby agrees to protect,
indemnify, pay
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and save the Agents, each Issuer and each Lender harmless from and against any
and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) arising from the claims of third
parties against the Agents or such Issuer in respect of any Facility Letter of
Credit requested by such Borrower.
(b) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Issuers or any Lender under or in connection with the Facility Letters of Credit
or any related certificates, if taken or omitted in good faith, shall not put
such Issuer or such Lender under any resulting liability to any Borrower or
relieve any Borrower of any of its obligations hereunder to the Issuers, the
Administrative Agent or any Lender.
(c) Notwithstanding anything to the contrary contained in this
Section 2.19, a Borrower shall not have any obligation to indemnify an Issuer
under this Section 2.19 in respect of any liability incurred by such Issuer
arising out of the gross negligence or willful misconduct of such Issuer, as
determined by a court of competent jurisdiction, or out of the wrongful dishonor
by such Issuer of a proper demand for payment made under the Facility Letters of
Credit issued by such Issuer as determined by a court of competent jurisdiction,
unless such dishonor was made at the request of such Borrower, or out of the
wrongful honor by such Issuer of a demand for payment made under the Facility
Letters of Credit issued by such Issuer which demand for payment does not comply
with the conditions required in order to draw upon such Facility Letter of
Credit as determined by a court of competent jurisdiction, unless such honor was
made at the request of such Borrower.
2.20. Application of Payments with Respect to Defaulting Lenders. No
payments of principal, interest or fees delivered to the Administrative Agent
for the account of any Defaulting Lender shall be delivered by the
Administrative Agent to such Defaulting Lender. Instead, such payments shall,
for so long as such Defaulting Lender shall be a Defaulting Lender, be held by
the Administrative Agent, and the Administrative Agent is hereby authorized and
directed by all parties hereto to hold such funds in escrow and apply such funds
as follows:
(i) First, if applicable to any payments due to an Issuer
pursuant to Section 2.19.5; and
(ii) Second, to Loans required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender fails
to make such Loans.
Notwithstanding the foregoing, upon the termination of the Revolving Credit
Commitments and the payment and performance of all of the Obligations (other
than those owing to a Defaulting Lender), any funds then held in escrow by the
Administrative Agent pursuant to the preceding sentence shall be distributed to
each Defaulting Lender, pro rata in proportion to amounts that would be due to
each Defaulting Lender but for the fact that it is a Defaulting Lender.
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1. Yield Protection. If after the date hereof the introduction of
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) (collectively,
"RULES"), or any change or modification of the Rules, or any interpretation
thereof, or the compliance of any Lender therewith,
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(a) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from any Borrower or changes the basis of taxation of payments
to any Lender in respect of its Loans or other amounts due it
hereunder (excluding income taxes and franchise taxes (imposed
in lieu of income taxes) imposed on the any Agent or Lender as
a result of a present or former connection between such Agent
or Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing
authority thereof or therein, other than any such connection
arising solely from such Agent or Lender having executed,
delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document),
or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Fixed
Rate Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining loans or reduces any amount
receivable by any Lender or any applicable Lending Installation
in connection with loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated
by reference to the amount of loans held or interest received
by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the affected Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Loans, its Revolving Credit Commitment or its Multicurrency
Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender, the Company shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans or its obligation to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "CHANGE" means (a)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (b) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations or
guidelines promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations or guidelines adopted prior to the date of this
Agreement.
3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans or Multicurrency Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, then the Administrative Agent
shall suspend
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the availability of the affected Type of Loans by such Lender and
require any Loans of the affected Type to be repaid at the end of the Interest
Period for the affected Loan to such Lender. If the Required Lenders determine
with respect to Eurodollar Loans, Requested Multicurrency Lenders or
Multicurrency Loans that (i) deposits of a type and maturity appropriate to
match fund Eurodollar or Eurocurrency Rate Loans are not available or (ii) the
interest rate applicable to a Eurocurrency Rate Loan or Eurodollar Loan does not
accurately reflect the cost of making or maintaining such Loans, then the
Administrative Agent shall suspend the availability of the affected Type of
Loans by all Lenders and require any Loans of the affected Type to be repaid at
the end of the Interest Period for the affected Loans.
3.4. Funding Indemnification. If any repayment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or if any
Floating Rate Advance is not converted to a Fixed Rate Advance or if any Fixed
Rate Advance is not made, continued or prepaid on the date specified by a
Borrower for any reason other than default by the Lenders, such Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans and Multicurrency Rate Loans
to reduce any liability of a Borrower to such Lender under Sections 3.1 and 3.2
or to avoid the unavailability of a Type of Advance under Section 3.3, so long
as such designation is not disadvantageous to such Lender in any material
respect. Each Lender shall deliver a written statement of such Lender to the
applicable Borrower (with a copy to the Administrative Agent) as to the amount
due, if any, under Section 3.1, 3.2 or 3.4. Such written statement shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall state that amounts determined in accordance with such
procedures are being charged by such Lender to other borrowers with credit
facilities similar to this Agreement and credit characteristics comparable to
the Company as determined by such Lender and shall be final, conclusive and
binding on the Borrowers in the absence of manifest error. Determination of
amounts payable under such sections in connection with a Eurodollar Loans and
Multicurrency Rate Loans shall be calculated as though each Lender funded such
Loans through the purchase of a deposit of the type and maturity corresponding
to the deposit used as a reference in determining the interest rate applicable
to such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the applicable Borrower of such written
statement. The obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.6
shall survive payment of the Obligations and termination of this Agreement. The
Borrowers shall have no obligation to compensate any Lender with respect to
amounts provided in Sections 3.1, 3.2, 3.4 or 3.6 with respect to any period
prior to the date which is 120 days prior to the date such Lender delivers its
written statement hereunder requesting compensation.
3.6. Taxes.
3.6.1. All payments of principal and interest made by the Borrowers
under this Agreement and any promissory note, if any, and all reimbursement
obligations with respect to Facility Letters of Credit shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political
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subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("NON-EXCLUDED TAXES") are required to be withheld from any amounts payable to
the Administrative Agent, any Issuer or any Lender hereunder or under any
promissory note or Facility Letter of Credit, the amounts so payable to the
Administrative Agent, such Issuer or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent, such Issuer or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates and in the amounts specified in this
Agreement provided, however, that (i) with respect to any Loan or Facility
Letter of Credit in U.S. Dollars to the Company, the Company shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of Section 3.6.2, (ii) with
respect to any Loan or Facility Letter of Credit in any Available Foreign
Currency, a Borrower shall not be required to increase any such amounts payable
to any Lender if such Lender fails to comply with the requirements of Section
3.6.3 and (iii) with respect to any Multicurrency Loan or any Multicurrency
Facility Letter of Credit, the Foreign Subsidiary Borrower shall not be required
to increase any such amounts payable to any Lender or the Administrative Agent
to the extent caused by such Lender or the Administrative Agent failing to act
through its Designated Office with respect to such Foreign Subsidiary Borrower.
Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.6.2. Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(a) at least five Business Days before the date of the
initial payment to be made by the Company under this Agreement
to such Lender, deliver to the Company and the Administrative
Agent an Internal Revenue Service Form W-8BEN or W-8ECI, or
successor applicable form, as the case may be, certifying that
it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes or, in the case of a Lender claiming exemption from
withholding of any United States federal income taxes under
Section 871(h) or 881(c) of the Code with respect to payments
of "portfolio interest", a certificate representing that such
Lender is not (i) a "bank" for purposes of Section 881(c) of
the Code, (ii) a ten-percent shareholder of any Borrower
(within the meaning of Section 871(h)(3)(B) of the Code), or
(iii) a controlled foreign corporation related to any Borrower
(within the meaning of Section 864(d)(4) of the Code), and a
Form W-8BEN (or a successor form), in all cases properly
completed and duly executed;
(b) deliver to the Company and the Administrative Agent two
further copies of any such form or certification at least five
Business Days before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Administrative Agent and
the Company provided that such Lender is legally entitled to complete
such form;
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(c) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by
the Company or the Administrative Agent; and
(d) file amendments to such forms as and when required; and
each Lender (or Transferee) that is incorporated or organized
under the laws of the United States of America or a State
thereof shall provide two properly completed and duly executed
copies of Form W-9, or successor applicable form, at the times
specified for delivery of forms under this Section 3.6.2 unless
an event (including, without limitation, any change in treaty,
law or regulation) has occurred after the date such Person
becomes a Lender hereunder which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender so advises the Company and the Administrative
Agent; provided, however, that the Company may rely upon such
forms provided to the Company for all periods prior to the
occurrence of such an event. Each Person that shall become a
Lender or a Participant pursuant to Section 13.2 shall, upon
the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements
required pursuant to this Section, provided that in the case of
such Participant, the obligations of such Participant pursuant
to this Section 3.6.2 shall be determined as if such
Participant were a Lender, except that such Participant shall
furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have
been purchased.
3.6.3. Each Lender that is not incorporated or organized under the
laws of the jurisdiction under which a Foreign Subsidiary Borrower is
incorporated or organized shall, upon request by such Foreign Subsidiary
Borrower, within a reasonable period of time after such request, deliver to such
Foreign Subsidiary Borrower or the applicable governmental or taxing authority,
as the case may be, any form or certificate required in order that any payment
by such Foreign Subsidiary Borrower under this Agreement or any promissory notes
to such Lender may be made free and clear of, and without deduction or
withholding for or on account of any Non-Excluded Tax (or to allow any such
deduction or withholding to be at a reduced rate) imposed on such payment under
the laws of the jurisdiction under which such Foreign Subsidiary Borrower is
incorporated or organized, provided that such Lender is legally entitled to
complete, execute and deliver such form or certificate and such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
3.6.4. Each Lender agrees to use reasonable efforts to avoid or to
minimize any amounts which might otherwise be payable pursuant to this Section
3.6, provided that such effort shall not impose on any such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material. In the event that any Lender determines that
any event or circumstance that will lead to a claim by it under this Section 3.6
has occurred or will occur, such Lender will use its best efforts to so notify
the Company in writing, provided that any failure to provide such notice shall
in no way impair the rights of any Lender to demand and receive compensation
under this Section 3.6.
3.6.5. In cases in which a Borrower makes a payment under this
Agreement to a U.S. person with knowledge that such U.S. person is acting as an
agent for a foreign person, such Borrower will not treat such payment as being
made to a U.S. person for purposes of Treas. Reg. ss. 1.1441-1(b)(2)(ii) (or a
successor provision) without the express written consent of such U.S. person.
3.7. Substitution of Lender. If (a) the obligation of any Lender to
make or maintain Eurodollar Loans has been suspended pursuant to Section 3.3
when not all Lenders' obligations have been suspended, (b) any
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Lender has demanded compensation under Sections 3.1, 3.2 or 3.6 when all Lenders
have not done so or (c) any Lender is a Defaulting Lender, the Company shall
have the right, if no Default then exists, to replace such Lender (a "REPLACED
LENDER") with one or more other lenders (collectively, the "REPLACEMENT LENDER")
acceptable to the Administrative Agent and the Syndication Agent, provided that
(i) at the time of any replacement pursuant to this Section 3.7, the Replacement
Lender shall enter into one or more Assignments pursuant to which the
Replacement Lender shall acquire the Commitments and outstanding Loans and other
obligations of the Replaced Lender and, in connection therewith, shall pay to
the Replaced Lender in respect thereof an amount equal to the sum of (A) the
amount of principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (B) the amount of all accrued, but theretofore unpaid, fees
owing to the Replaced Lender hereunder and (C) the amount which would be payable
by the Borrowers to the Replaced Lender pursuant to Section 3.4, if any, if the
Borrowers prepaid at the time of such replacement all of the Loans of such
Replaced Lender outstanding at such time and (ii) all obligations of the
Borrowers then owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignments, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of any appropriate promissory note or notes executed by the Borrowers,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder. The provisions of this Agreement
(including without limitation Sections 3.4 and 10.7) shall continue to govern
the rights and obligations of a Replaced Lender with respect to any Loans made
or any other actions taken by such lender while it was a Lender. Nothing herein
shall release any Defaulting Lender from any obligation it may have to any
Borrower, any Agent or any other Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advances and Letters of Credit. The Lenders shall not
be required to make the initial Loans or issue Facility Letters of Credit
hereunder unless the Borrowers shall have furnished to the Agents, with
sufficient copies for the Lenders, each of the following:
(a) Copies of the articles of incorporation or similar
organizational documents of each Borrower, together with all
amendments thereto, and a certificate of good standing or
similar governmental evidence of corporate existence (if
available), all certified by the Secretary or an Assistant
Secretary of such Borrower; provided, however, that Meritor
Heavy Vehicle Systems Limited may deliver evidence of good
standing on or before the date that is 15 Business Days
following the Effective Date which, if in the form of the
original certificate, need not be certified by the Secretary or
Assistant Secretary of such Borrower.
(b) Copies, certified by the Secretary or an Assistant Secretary or
other duly authorized representative of each Borrower, of its
by-laws or similar constituent document (if any) and of its
Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Agent)
authorizing the execution of the Loan Documents to which such
Borrower is a party.
(c) An incumbency certificate, executed by the Secretary or an
Assistant Secretary of each Borrower, which shall identify by
name and title and bear the signature of the officers of
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such Borrower authorized to sign the applicable Loan Documents
and to make borrowings hereunder, upon which certificate the
Agents and the Lenders shall be entitled to rely until informed
of any change in writing by such Borrower.
(d) A certificate, signed by any Designated Financial Officer of
the Company, stating that on the date of the initial funding
hereunder all of the representations in this Agreement made by
the Company and the Foreign Subsidiary Borrowers are true and
correct and no Default or Unmatured Default has occurred and is
continuing.
(e) Written opinions of counsel to the Company, addressed to the
Lenders in substantially the form of Exhibit D hereto.
(f) Written opinions of each Foreign Subsidiary Borrower's
counsel, addressed to the Lenders consistent with the form of
opinion request attached hereto as Exhibit E.
(g) Written money transfer instructions, in substantially the form
of Exhibit F hereto, addressed to the Administrative Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Administrative
Agent may have reasonably requested.
(h) Evidence satisfactory to the Administrative Agent and the
Syndication Agent that the Lenders, such Agents and the Joint
Book Managers have received all fees agreed to in the fee
letters dated May 25, 2000 among such Agent or Agents, Arvin,
Meritor and the Company or hereunder required to be paid, and
all expenses for which invoices have been presented, on or
before two Business Days prior to the date of the initial
funding under this Agreement.
(i) (x) Satisfactory audited consolidated financial statements of
each of Arvin and Meritor for the two most recent fiscal years
ended prior to the Closing Date as to which such financial
statements are available, (y) satisfactory unaudited interim
consolidated financial statements of each of Arvin and Meritor
for each quarterly period ended subsequent to the date of the
latest financial statements delivered pursuant to clause (x) of
this paragraph as to which such financial statements are
available, and (z) satisfactory pro forma post-Merger
consolidated balance sheet and financial projections of the
Company which shall be consistent with the information included
in the Bank Book.
(j) Evidence satisfactory to the Administrative Agent and the
Syndication Agent that (i) the Board of Directors of each of
Arvin and Meritor shall have approved the Merger, (ii) each of
Arvin and Meritor shall have received all material
governmental, third-party and regulatory approvals necessary in
connection with the Merger (which approvals shall be full force
and effect), (iii) each of Arvin and Meritor shall have
received all necessary shareholder approvals in connection with
the Merger, (iv) the terms of the Merger have not changed in
any material respect from those disclosed in the preliminary
proxy statement/prospectus filed by Arvin and Meritor on May 5,
2000 with the Securities and Exchange Commission, as amended by
Amendment No. 1 thereto filed on June 2, 2000 with the
Securities and Exchange Commission and (v) the Merger shall
have been consummated.
(k) Evidence satisfactory to the Administrative Agent and the
Syndication Agent that all
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material governmental and third-party approvals necessary or
advisable, in the discretion of such Agents, in connection with
the financing contemplated hereby and the continuing operations
of the Company and its Subsidiaries have been obtained and are
in full force and effect.
(l) Documentation evidencing the termination of the Existing Credit
Agreements and repayment of all obligations, indebtedness and
liabilities outstanding thereunder or the arrangement for such
termination and repayment from the proceeds of the initial
Loans hereunder.
(m) Documentation satisfactory to the Administrative Agent and the
Syndication Agent demonstrating that (i) except as set forth on
Schedule 4 hereto, the obligor on all outstanding public
Indebtedness of the Company and its Subsidiaries is
the Company, (ii) other than with respect to the outstanding
guaranteed Subsidiary subordinated Indebtedness, none of the
Company's Subsidiaries shall be co-obligors or guarantors of
the Company's Indebtedness unless such Subsidiaries similarly
become co-obligors or guarantors of the Indebtedness hereunder
and under the 364-Day Credit Agreement and (iii) all such
outstanding subordinated Indebtedness is subordinated to the
Indebtedness hereunder and under the 364-Day Credit Agreement.
(n) Such other documents as the Administrative Agent and the
Syndication Agent or their counsel may have reasonably
requested including, without limitation, each document
reflected on the List of Closing Documents attached as Exhibit
I to this Agreement.
4.2. Each Advance. The Lenders shall not be required to make any Loans
nor shall any Issuer be required to issue any Letter of Credit, unless on the
applicable Borrowing Date and after giving effect to such
extension of credit:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article V
(except Section 5.5, which shall only apply as a condition to the initial Loans
hereunder) are true and correct as of such Borrowing Date except to the extent
any such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall be true and correct on
and as of such earlier date.
(c) All legal matters incident to the making of such Loans or the
issuance of such Facility Letter of Credit shall be satisfactory to the
Administrative Agent and the Syndication Agent and their counsel.
(d) If such Loan is an initial Loan to a Foreign Subsidiary
Borrower, the Agents shall have received a Foreign Subsidiary Opinion in respect
of such Foreign Subsidiary Borrower and such other documents reasonably
requested by the Agents.
Each borrowing notice with respect to each borrowing by a Borrower
hereunder or each request for an issuance of a Facility Letter of Credit shall
constitute a representation and warranty by the Company and such Borrower that
the conditions contained in Sections 4.1(a) and (b) have been satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Foreign Subsidiary Borrowers (insofar as
the representations and warranties set forth below relate solely to such Foreign
Subsidiary Borrower) represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Company and its
Subsidiaries is a corporation, partnership, limited liability company or other
organization duly incorporated or organized, validly existing and in good
standing (in jurisdictions where applicable) under the laws of its jurisdiction
of incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted and where the
failure to be in good standing or authorized to conduct business would have a
Material Adverse Effect; provided, however, that this Section 5.1 shall not
apply to Meritor Heavy Vehicle Systems Limited until the date that is 15
Business Days following the Effective Date.
5.2. Authorization and Validity. Each Borrower has the corporate or
other power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by each of the Borrowers of the Loan Documents to which
it is a party and the performance of their obligations thereunder have been duly
authorized by proper corporate proceedings, and the Loan Documents to which they
are a party constitute legal, valid and binding obligations of the Borrowers
enforceable against the Borrowers in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrowers of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any of its Subsidiaries or the
Company's or any Subsidiary's articles of incorporation or by-laws or comparable
constitutive documents or the provisions of any indenture, instrument or
agreement to which the Company or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien (other than any Lien permitted by Section 6.14) in, of or on the Property
of the Company or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement, except for any such violation, conflict or default as
would not reasonably be expected to have a Material Adverse Effect. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
5.4. Financial Statements. The January 2, 2000 consolidated
financial statements of Arvin and the September 30, 1999 consolidated financial
statements of Meritor heretofore delivered to the Lenders were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present the consolidated financial
condition and operations of Arvin and Meritor, respectively, at such date and
the consolidated results of their operations for the period then ended. The pro
forma consolidated financial statements of the Company and its Subsidiaries
included in the Bank Book heretofore delivered to the Lenders fairly present the
pro forma consolidated financial condition of the Company and its Subsidiaries
after giving effect to the Merger in accordance with generally accepted
accounting principles. The projected statements of income and cash flows of the
Company contained in the Bank Book (the "PROJECTIONS") are based on estimates
and assumptions considered reasonable by the Company's management and the best
information available to the Company's management at the time made, and use
information consistent with the plans of the Company.
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5.5. Material Adverse Change. As of the Closing Date, since (i) the
audited financial statements for Arvin for the fiscal year ended January 2, 2000
and for Meritor for the fiscal year ended September 30, 1999, (ii) the unaudited
financial statements for Arvin for the fiscal quarter ended April 2, 2000 and
for Meritor for the fiscal quarter ended March 31, 2000 and (iii) the pro forma
financial statements and Projections contained in the Bank Book, there has been
no change in the business, Property or financial condition of the Company and
its Subsidiaries which has had or could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Company and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes shown as due pursuant to said returns or pursuant
to any assessment received by the Company or any of its Subsidiaries, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting
Principles and such failures to file or pay, if any, as would not reasonably be
expected to have a Material Adverse Effect. No tax liens have been filed and no
claims are being asserted with respect to any such taxes, other than as
permitted by Section 6.14. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on
Schedule 5 hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending, or, to the knowledge of any of
their officers, threatened against or affecting the Company or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of the Loans or
Advances. Other than any liability incident to such litigation, arbitration or
proceedings, the Company and its Subsidiaries have no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8. Subsidiaries. As of the date hereof, Schedule 6 hereto contains
an accurate list of all of the presently existing "Significant Subsidiaries" (as
defined in Rule 405 of Regulation C of the rules and regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended)
of Arvin and Meritor, setting forth their respective jurisdictions of
incorporation and the percentage of their respective Capital Stock owned by the
Company or other Subsidiaries. As of the Effective Date, Schedule 6 hereto
contains an accurate list of all of the presently existing Significant
Subsidiaries of the Company, setting forth their respective jurisdictions of
incorporation and the percentage of their respective Capital Stock owned by the
Company or other Subsidiaries. All of the issued and outstanding shares of
Capital Stock of such Significant Subsidiaries have been duly authorized and
issued and are fully paid and non-assessable.
5.9. ERISA. The aggregate of (i) the Unfunded Liabilities under the
Plans and (ii) difference between the present value of the accrued benefits
under the Foreign Plans and the fair market value of the assets of such Foreign
Plans (in U.S. Dollar equivalent amount) does not exceed $35,000,000. Each Plan
and each Material Foreign Plan complies in all material respects with all
applicable requirements of law and regulations, and except as set forth on
Schedule 7 hereto, no Reportable Event has occurred within the past six years
with respect to any Plan (except with respect to transfers of assets made in
accordance with applicable law and regulations), neither the Company nor any
other Subsidiary has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan or Material Foreign
Plan within the past six years.
5.10. Accuracy of Information. No written information, exhibit or
report furnished by the Company or any of its Subsidiaries to the Agents or to
any Lender in connection with the negotiation of, or compliance
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with, the Loan Documents, contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein not misleading as of the date thereof.
5.11. Regulation U. Margin Stock constitutes less than 25% of the
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge or other restriction hereunder.
5.12. Material Agreements. Neither the Company nor any Subsidiary is
a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (a) any agreement to which it is a party, which default
might have a Material Adverse Effect or (b) any agreement or instrument
evidencing or governing Material Liabilities.
5.13. Compliance With Laws. The Company and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property if failure to comply
could reasonably be expected to have a Material Adverse Effect.
5.14. Plan Assets; Prohibited Transactions. The Company and its
Subsidiaries have not engaged in any prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result in
liability individually or in the aggregate in excess of $35,000,000; and neither
the execution of this Agreement nor the making of Loans (assuming that the
Lenders do not fund any of the Loans with any "plan assets" as defined under
ERISA) hereunder give rise to a non-exempt prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.15. Environmental Matters. Neither the Company nor any Subsidiary
has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.16. Investment Company Act. No Borrower is an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.17. Public Utility Holding Company Act. No Borrower is a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
5.18. Foreign Subsidiary Borrowers. In addition to the other
representations and warranties made by the Foreign Subsidiary Borrowers in this
Article V, each Foreign Subsidiary Borrower represents and warrants to the
Lenders that:
(a) Upon completion of the Merger, each Foreign Subsidiary Borrower
will be a direct or indirect Wholly-Owned Subsidiary of the Company (excluding
director qualifying shares);
(b) Such Foreign Subsidiary Borrower is a company duly formed and
validly existing and in good standing (or equivalent status) under the laws of
the state or country of its organization and has the requisite power and
authority to own its property and assets and to carry on its business
substantially as
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now conducted except where the failure to have such requisite authority would
not have a material adverse effect on such Foreign Subsidiary Borrower;
provided, however, that this Section 5.18(b) shall not apply to Meritor Heavy
Vehicle Systems Limited until the date that is 15 Business Days following the
Effective Date; and
(c) Each Foreign Subsidiary Borrower will have, upon becoming a
party hereto, all right and authority to enter into the applicable Joinder
Agreement, this Agreement and each other Loan Document to which it is a party,
and to perform all of its obligations under this and each other Loan Document to
which it is a party, and the performance by it of its obligations hereunder and
thereunder have been duly authorized by proper corporate proceedings; all of the
foregoing actions will have been taken prior to any request for Loans or Letters
of Credit by such Borrower, duly authorized by all necessary action on the part
of such Borrower, and when such Foreign Subsidiary Borrower becomes a party
hereto, this Agreement and each other Loan Document to which it is a party will
constitute valid and binding obligations of such Borrower enforceable in
accordance with their respective terms except as such terms may be limited by
the application of bankruptcy, moratorium, insolvency and similar laws affecting
the rights of creditors generally.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders (or all
of the Lenders if required pursuant to Section 8.2) shall otherwise consent in
writing (or the Agent shall, on behalf of such Lenders consent in writing):
6.1. Financial Reporting. The Company will maintain, for itself and
each Subsidiary, a system of accounting enabling it to provide consolidated
financial statements for the Company and its Subsidiaries in accordance with
Agreement Accounting Principles and furnish to the Lenders:
(i) within 120 days after the close of each of the Company's
fiscal years, an unqualified audit report certified by independent
public accountants, acceptable to the Lenders, prepared in accordance
with Agreement Accounting Principles on a consolidated basis for itself
and its Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus
statements and a statement of cash flows;
(ii) within 60 days after the close of the first three
quarterly periods of each of the Company's fiscal years (including, for
Arvin and Meritor, for their fiscal quarters ending June 30, 2000), for
the Company and its Subsidiaries (or Arvin and its Subsidiaries and
Meritor and its Subsidiaries, as applicable, for the quarter ending
June 30, 2000), consolidated unaudited balance sheets as at the close
of each such period and consolidated profit and loss and reconciliation
of surplus statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter, all
certified by a Designated Financial Officer;
(iii) together with the financial statements required under
Sections 6.1(i) and (ii), commencing with the financial statements
delivered for the quarter ending September 30, 2000, a certificate
signed by a Designated Financial Officer in the form of Exhibit C
hereto, setting forth in reasonable detail calculations (which
calculations shall be made in accordance with Agreement Accounting
Principles) showing compliance with Sections 6.10 through 6.21, and
stating that no Default or Unmatured Default exists or existed during
the applicable period, or if any Default or Unmatured Default exists or
existed, stating the nature and status thereof;
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(iv) if requested by the Administrative Agent, within 180
days after the close of each fiscal year, financial information
regarding the Company's Plans as the Administrative Agent may
reasonably request, certified as prepared in accordance with generally
accepted actuarial principles and practices by an actuary enrolled
under ERISA, as well as financial information regarding any Material
Foreign Plans, certified as prepared in accordance with locally
accepted actuarial principles and practices by a locally qualified
actuary;
(v) as soon as possible and in any event within ten days
after the Company knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by an Authorized Officer of
the Company, describing said Reportable Event and the action which the
Company proposes to take with respect thereto;
(vi) promptly upon the furnishing thereof to the shareholders
of the Company, copies of all financial statements, reports and proxy
statements so furnished;
(vii) promptly upon the filing thereof, copies of all
registration statements, current reports and annual, quarterly, or
other regular reports which the Company files with the Securities and
Exchange Commission, including, without limitation, all reports on Form
10-K, 10-Q and 8-K; and
(viii) such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
Notwithstanding anything to the contrary, the Company shall be deemed
to have complied with the delivery requirements under clauses (i),
(ii), (vi) and (vii) hereof by providing notification (which may be in
electronic format) to the Lenders that the required documents are
publicly available through the Company's web site or other publicly
available electronic medium and providing the hyperlink or appropriate
other locational information for obtaining such information.
6.2. Use of Proceeds. The Company will, and will cause each
Subsidiary to, use the proceeds of the Advances for (i) the repayment of the
Existing Credit Agreements, (ii) payment of the cash portion of the Merger
consideration and other fees and expenses in connection with the Merger and
(iii) the Company's general corporate purposes, including to finance the
Borrowers' and their Subsidiaries' working capital needs and for commercial
paper backstop; provided that:
(a) any Advances used to purchase or carry Margin Stock
shall be in compliance with Regulation U;
(b) no portion of the proceeds of any Advance shall be used
in contravention of any applicable law or regulation; and
(c) no portion of the proceeds of any Advance shall be used,
directly, or indirectly, to provide funds for any Acquisition
unless, at the time such funds are so used, the Board of
Directors (or persons exercising similar functions) of the
issuer of the securities to be acquired shall have either (x)
approved such Acquisition and recommended it to shareholders of
the securities to be acquired, or (y) neither approved nor
disapproved such Acquisition nor made any recommendation to the
shareholders of the securities to be acquired.
6.3. Notice of Default. The Company and each Foreign Subsidiary
Borrower will, and will cause each
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other Subsidiary to, give notice (not later than five days after an Authorized
Officer of the Company or such Foreign Subsidiary Borrower becomes aware of such
occurrence) in writing to the Lenders of the occurrence of (a) any Default or
Unmatured Default and (b) that any other development, financial or otherwise
(including any litigation), which could reasonably be expected to have a
Material Adverse Effect.
6.4. Conduct of Business. The Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of the Foreign Subsidiary Borrowers and
each other Subsidiary in accordance with the respective organizational documents
of each such Person and the rights (charter and statutory) and material
franchises of the Company, each Foreign Subsidiary Borrower and each other
Subsidiary; provided that (except as otherwise provided herein) the Company
shall not be required to preserve any such right or franchise, or the existence
of any Subsidiary (except for the Foreign Subsidiary Borrowers), if the
discontinuance thereof could not reasonably be expected to have a Material
Adverse Effect.
6.5. Taxes. The Company will, and will cause each Subsidiary to, pay
when due all taxes, assessments and governmental charges and levies upon it or
its income, profits or property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Agreement Accounting Principles.
6.6. Insurance. The Company will, and will cause each Subsidiary to,
maintain with insurance companies satisfactory to the Company insurance in such
amounts and covering such risks as the Company's management deems consistent
with sound business practice, and the Company will furnish to any Lender upon
reasonable request full information as to the insurance carried.
6.7. Compliance with Laws. The Company will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject except
those with which the failure to comply would not reasonably be expected to have
a Material Adverse Effect.
6.8. Maintenance of Properties. The Company will, and will cause
each Subsidiary to, do all things reasonably necessary to maintain, preserve,
protect and keep its material Property in good repair, working order and
condition in all material respects (ordinary wear and tear excepted), and make
all necessary and proper repairs, renewals and replacements material to its
business so that its business carried on in connection therewith may be properly
conducted at all times.
6.9. Inspection. The Company will, and will cause each Subsidiary
to, permit the Administrative Agent, the Syndication Agent and any or each
Lender, by their respective representatives and agents, to inspect any of the
Property, corporate books and financial records of the Company and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Company and each Subsidiary, and to discuss the
affairs, finances and accounts of the Company and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Administrative Agent, Syndication Agent or Lender, as the
case may be, may designate.
6.10. Priority Indebtedness. The Company will not, nor will it permit
any Subsidiary to create, incur or suffer to exist any Priority Indebtedness
unless, at the time of the creation, incurrence or assumption of such Priority
Indebtedness and after giving effect thereto, the aggregate amount of all such
Priority Indebtedness does not exceed an amount equal to 60% of the consolidated
Net Worth of the Company and its Subsidiaries at such time.
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6.11. Merger. The Company will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that,
(a) any Subsidiary may merge or consolidate with the Company
(provided that the Company shall be the surviving corporation) or with
any one or more other Subsidiaries, provided, however, that in the case
of any such merger or consolidation involving a Foreign Subsidiary
Borrower, the surviving corporation assumes all of such Borrower's
obligations under this Agreement and remains or becomes a Foreign
Subsidiary Borrower; and
(b) the Company may merge or consolidate with any other
entity provided that the Company shall be the surviving corporation and
that after giving effect thereto no Default or Unmatured Default shall
exist and be continuing.
6.12. Sale of Assets. The Company will not, nor will it permit
any Subsidiary to, lease, sell or otherwise dispose of its Property, to any
other Person (other than the Company or a Wholly-Owned Subsidiary), except:
(i) any Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to the Company or another Subsidiary;
(ii) the Company or its Subsidiaries may transfer an interest
in Receivables, Receivables Related Security, accounts or notes
receivable on a limited recourse basis under the Receivables Purchase
Documents, provided that such transfer qualifies as a legal sale and as
a sale under Agreement Accounting Principles;
(iii) the Company and its Subsidiaries may sell, lease,
transfer or otherwise dispose of inventory and equipment in the
ordinary course of business;
(iv) during the 18-month period after Closing Date and in
connection with the Company's integration of the Arvin and Meritor
businesses, the Company and its Subsidiaries may sell, lease, transfer
or otherwise dispose of plants and real estate, provided that the
aggregate book value of all such plants and real estate so sold,
leased, transferred or otherwise disposed does not exceed $100,000,000
and provided prior to the consummation of such transaction, notice of
such sale, lease, transfer or other disposition shall have been
provided by the Company to the Administrative Agent identifying such
transaction as an integration transaction pursuant to the terms of this
clause (iv);
(v) the Company may sell its interests in each of Roll
Coater, Inc., an Indiana corporation, and AVM, Inc., a South Carolina
corporation, in its entirety or in a series of one or more
transactions; and
(vi) Other leases, sales, sales and leasebacks or other
dispositions of its Property that, (a) are not for less than fair
market value and (b) together with all other Property of the Company
and its Subsidiaries previously leased, sold or disposed of (other than
as provided in clauses (i) through (v) above) as permitted by this
Section during the twelve-month period ending with the month prior to
the month in which any such lease, sale or other disposition occurs, do
not constitute a Substantial Portion of the Property of the Company and
its Subsidiaries, excluding from such calculation sales, leases, sale
leasebacks or other dispositions where the fair market value of the
asset sold in such transaction (or a series of related transactions)
does not exceed $500,000.
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6.13. Conduct of Business; Investments and Acquisitions. Neither the
Company nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Company or such Subsidiaries on the date hereof and
any business or activities which are reasonably similar, related or incidental
thereto or logical extensions thereof. The Company will not, nor will it permit
any Subsidiary to make or suffer to exist any Investments (including, without
limitation, loans and advances to, and other Investments in, Subsidiaries which
are not Wholly-Owned Subsidiaries), or commitments therefor, or make any
Acquisition of any Person, unless after giving effect to such Investment or
Acquisition, on a pro forma basis (i) no Default or Unmatured Default shall have
occurred and be continuing or would result therefrom and (ii) all of the
representations and warranties contained herein shall be true and correct.
6.14. Liens. The Company will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings, and provided that adequate
reserves therefor are being maintained in accordance with Agreement
Accounting Principles;
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than 60
days past due;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Company
or the Subsidiaries;
(v) lessors' interests under Capitalized Leases;
(vi) Liens in favor of the Company or any Lien granted by
any Subsidiary in favor of a Wholly-Owned Subsidiary;
(vii) Liens existing on such Property at the time of its
acquisition (directly or indirectly) (other than any such Lien created
in contemplation of such acquisition);
(viii) Liens on the Property of a Person that is merged with or
into the Company or a Subsidiary or of a Person that becomes a
Subsidiary after the Closing Date (in each case to the extent such
merger, Acquisition or Investment is otherwise permitted by this
Agreement), provided that (A) such Liens existed at the time such
Person was so merged or became a Subsidiary and were not created in
anticipation of any such transaction, (B) any such Lien does not by its
terms cover any additional property or assets acquired after the time
such Person was so merged or became a Subsidiary, and (C) any such Lien
does not by its terms secure any Indebtedness other than Indebtedness
existing immediately prior to the time such Person was so merged or
became a Subsidiary;
(ix) Liens resulting from the deposit of funds or evidences
of Indebtedness in trust for the purpose of defeasing Indebtedness of
the Company or any Subsidiary;
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(x) Bank setoff rights arising in the ordinary course of
business;
(xi) Deposits or Liens to secure the performance (and not
securing any Indebtedness) of statutory obligations, surety and appeal
bonds, performance bonds and other obligations of like nature incurred
in the ordinary course of business;
(xii) Judgment or other similar Liens arising in connection
with legal 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 Subsidiary, as the case may be, has established appropriate
reserves against such claims in accordance with Agreement Accounting
Principles;
(xiii) Liens arising under the Loan Documents, including
Section 2.19.7, and Liens arising under the 364-Day Credit Agreement
and the related loan documents;
(xiv) Liens on Receivables and Related Security arising in
connection with connection with Permitted Receivables Transfers;
(xv) Any extension, renewal or replacement (or successive
extension, renewal, or replacement) in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (xiv) inclusive;
provided, however, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to all or a
part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property);
(xvi) other Liens, provided that the aggregate amount of the
obligations secured thereby does not at any time exceed an amount which
would cause a Default or Unmatured Default to occur or be continuing
hereunder, including, without limitation, under Section 6.10.
In addition, neither the Company nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of or require any equal and ratable
sharing of a Lien on any of its properties or other assets in favor of the
Agents, the Issuers, the Swing Line Bank and the Lenders, as collateral for the
Obligations; provided, that any agreement, note, indenture or other instrument
in connection with purchase money Indebtedness (including Capitalized Leases)
may prohibit the creation of a Lien in favor thereof on the items of property
obtained with the proceeds of such purchase money Indebtedness; provided,
further, that the Receivables Purchase Documents may prohibit the creation of a
Lien with respect to all of the assets of the SPV and with respect to the
Receivables and Related Security of any of the Originators in favor thereof as
collateral for the Obligations.
6.15. Transactions with Affiliates and Joint Ventures. Except for
Permitted Related Party Transactions and Permitted Strategic Transactions, the
Company will not, and will not permit any Subsidiary to, enter into any
transaction (including, without limitation, the purchase or sale of any Property
or service) with, or make any payment or transfer to, any Affiliate or Joint
Venture except in the ordinary course of business and pursuant to the reasonable
requirements of the Company's or such Subsidiary's business and upon fair and
reasonable terms (taken as a whole) not materially less favorable to the Company
or the Company and its Subsidiaries (taken as a whole) than would occur in a
comparable arms-length transaction.
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6.16. Contingent Obligations. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary) in respect of any Indebtedness except in connection
with Indebtedness which if directly incurred by the Company or such Subsidiary,
as applicable, would not result in a violation of Sections 6.10 or 6.20.
6.17. Sale and Leaseback. The Company will not, nor will it permit
any Subsidiary to, sell or transfer any property in order to concurrently or
subsequently lease as lessee such or similar property if the aggregate book
value of all such property sold and concurrently or subsequently leased back by
the Company or a Subsidiary plus the book value of assets subject to Liens would
exceed the amount permitted by Section 6.12(vi).
6.18. Subordinated Indebtedness; Restricted Payments. The Company
will not, and will not permit any of its Subsidiaries to (a) make any amendment
or modification to the indenture, note or other agreement evidencing or
governing any subordinated Indebtedness of the Company or its Subsidiaries, or
(b) directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any such subordinated
Indebtedness or make any other Restricted Payments; provided, however, the
Company may declare or make any Restricted Payment if no Default or Unmatured
Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom.
6.19. Additional Guarantees. The Company will not permit any of its
Subsidiaries to become co-obligors or guarantors of any Indebtedness or
Off-Balance Sheet Liabilities of the Company unless such Subsidiaries similarly
become co-obligors or guarantors of the Indebtedness hereunder and under the
364-Day Credit Agreement.
6.20. Debt Ratio. The Company shall not permit its Debt Ratio,
calculated on a consolidated basis for the Company and its Subsidiaries, to
exceed 3.25 to 1.0 on the last day of any fiscal quarter.
6.21. Financial Contracts. The Company shall not and shall not permit
any of its Subsidiaries to enter into any Financial Contracts other than
Financial Contracts entered into by the Company or its Subsidiaries pursuant to
which the Company or such Subsidiary has hedged its or its Subsidiaries'
reasonably estimated interest rate, foreign currency or commodity exposure and
which are of a non-speculative nature.
ARTICLE VII
DEFAULTS
7.1. Defaults. The occurrence of any one or more of the following
events shall constitute a Default:
7.1.1. Any written representation or warranty made or deemed made by
or on behalf of the Company or its Subsidiaries to the Lenders or the Agents in
any Loan Document, in connection with any Loan or Facility Letter of Credit, or
in any certificate or information delivered in writing in connection with any
Loan Document shall be false in any material respect on the date as of which
made.
7.1.2. Nonpayment of principal of any Loan when due, or nonpayment of
interest on any Loan within five days after the same becomes due, or nonpayment
of fees or any other obligations under any of the Loan Documents within ten days
after the same becomes due.
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7.1.3. The breach by any Borrower of any of the terms or provisions of
Sections 6.1 through 6.3 or 6.10 through 6.21.
7.1.4. The breach by any Borrower (other than a breach which constitutes a
Default under Sections 7.1.1, 7.1.2, 7.1.3, 7.1.5 or 7.1.6) of any of the terms
or provisions of this Agreement or any other Loan Document which is not remedied
within 30 days after the earlier of (a) the date on which any Authorized Officer
of the Company has actual knowledge thereof and (b) the receipt of written
notice from any Agent or the Required Lenders.
7.1.5. Failure of the Company, a Foreign Subsidiary Borrower or any other
Subsidiary to pay (i) any Indebtedness under the 364-Day Credit Agreement or
(ii) any other Indebtedness (other than the Indebtedness hereunder), Priority
Indebtedness or Off-Balance Sheet Liabilities with a principal amount
individually or in the aggregate in excess of $35,000,000 when due (the
Indebtedness, Priority Indebtedness and Off-Balance Sheet Liabilities in this
clause (ii) being referred to as "MATERIAL LIABILITIES"), or the default by the
Company, any Foreign Subsidiary Borrower or any other Subsidiary in the
performance of any other term, provision or condition contained in the 364-Day
Credit Agreement or any other agreement under which any such Material
Liabilities was created or is governed, the effect of which is to cause, or to
permit the holder or holders of such Indebtedness under the 364-Day Credit
Agreement or such Material Liabilities to cause, such Indebtedness or Material
Liabilities to become due prior to its stated maturity; or any such Indebtedness
under the 364-Day Credit Agreement or such Material Liabilities shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment), prior to the stated maturity thereof.
7.1.6. The Company, any of its Significant Subsidiaries or any Foreign
Subsidiary Borrower shall (i) have an order for relief entered with respect to
it under the United States bankruptcy laws as now or hereafter in effect or
cause or allow any similar event to occur under any bankruptcy or similar law or
laws for the relief of debtors as now or hereafter in effect in any other
jurisdiction, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator, monitor or similar official for it or
any substantial part of its Property, (iv) institute any proceeding seeking an
order for relief under the United States bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or any of its Property or its debts under any law relating to
bankruptcy, insolvency or reorganization or compromise of debt or relief of
debtors as now or hereafter in effect in any jurisdiction including, without
limitation, any organization, arrangement or compromise of debt under the laws
of its jurisdiction of incorporation, or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 7.1.6 or (vi) fail to contest in good faith
any appointment or proceeding described in Section 7.1.7.
7.1.7. Without its application, approval or consent, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Company, any
Significant Subsidiary or any Foreign Subsidiary Borrower or for any substantial
part of its Property, or a proceeding described in Section 7.1.6(iv) shall be
instituted against the Company, any Significant Subsidiary or any Foreign
Subsidiary Borrower and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.1.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of all or any substantial
portion of the Property of the Company, any Significant Subsidiary or any
Foreign Subsidiary Borrower taken as a whole.
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7.1.9. The Company, any Foreign Subsidiary Borrower or any other Subsidiary
shall fail within 30 days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of $10,000,000 or any judgments or
orders for the payment of money, the total amount of which for the Company, any
Foreign Subsidiary Borrower and/or any other Subsidiary exceeds $35,000,000,
which are not stayed on appeal or otherwise being appropriately contested in
good faith.
7.1.10. The Company or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the release by the Company or any of
its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment which could reasonably be expected to have a
Material Adverse Effect.
7.1.11. The Company Guaranty shall fail to remain in full force or effect
or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Company Guaranty or any guarantor of the Obligations
shall fail to observe or comply with any of the terms or provisions of any
guaranty to which it is a party, or any guarantor of the Obligations denies that
it has any further liability under any guaranty to which it is a party, or gives
notice to such effect.
7.1.12. The occurrence of any Change in Control.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. (a) If any Default described in Section 7.1.6 or 7.1.7
occurs, (i) the obligations of the Lenders to make Loans hereunder and the
obligations of the Issuers to issue Facility Letters of Credit shall
automatically terminate and the Obligations shall immediately become due and
payable without presentment, demand, protest or notice of any kind, all of which
the Borrowers hereby expressly waive and without any election or action on the
part of any Agent or Lender and (ii) each Borrower will be and become thereby
unconditionally obligated, without the need for demand or the necessity of any
act or evidence, to deliver to the Administrative Agent, at its address
specified pursuant to Article XIV, for deposit into the Letter of Credit
Collateral Account, an amount (the "COLLATERAL SHORTFALL AMOUNT") equal to the
excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining available to
be drawn under the Facility Letters of Credit requested by such Borrower
(assuming compliance with all conditions for drawing thereunder) issued by an
Issuer and outstanding as of such time, over
(B) the amount on deposit for such Borrower in the Letter of Credit
Collateral Account at such time that is free and clear of all rights and claims
of third parties (other than the Agents and the Lenders) and that has not been
applied by the Lenders against the Obligations of such Borrower.
(b) If any Default occurs and is continuing (other than a Default described
in Section 7.1.6 or 7.1.7), (i) the Administrative Agent may with the consent of
the Required Lenders, and shall upon the direction of the Required Lenders,
terminate or suspend the obligations of the Lenders to make Loans and the
obligation of the Issuers to issue Facility Letters of Credit hereunder, or
declare the Obligations to be due and payable, or both, whereupon (if so
declared) the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrowers
hereby expressly waive and (ii) the Administrative Agent may with the consent of
the Required Lenders, and shall upon the direction of the Required Lenders, upon
notice delivered to the Borrowers with outstanding
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Facility Letters of Credit and in addition to the continuing right to demand
payment of all amounts payable under this Agreement, make demand on each such
Borrower to deliver (and each such Borrower will, forthwith upon demand by the
Required Lenders and without necessity of further act or evidence, be and become
thereby unconditionally obligated to deliver), to the Administrative Agent, at
its address specified pursuant to Article XIV, for deposit into the Letter of
Credit Collateral Account an amount equal to the Collateral Shortfall Amount
payable by such Borrower.
(c) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrowers with
outstanding Facility Letters of Credit to deliver (and each such Borrower will,
forthwith upon demand by the Administrative Agent and without necessity of
further act or evidence, be and become thereby unconditionally obligated to
deliver), to the Administrative Agent as additional funds to be deposited and
held in the Letter of Credit Collateral Account an amount equal to such
Collateral Shortfall Amount payable by such Borrower at such time.
(d) The Administrative Agent may at any time or from time to time after
funds are deposited in the Letter of Credit Collateral Account, apply such funds
to the payment of the Obligations of the relevant Borrowers and any other
amounts as shall from time to time have become due and payable by the relevant
Borrowers to the Lenders under the Loan Documents.
(e) Neither the Borrowers nor any Person claiming on behalf of or through
the Borrowers shall have any right to withdraw any of the funds held in the
Letter of Credit Collateral Account. After all of the Obligations have been
indefeasibly paid in full, any funds remaining in the Letter of Credit
Collateral Account shall be returned by the Administrative Agent to the
applicable Borrower(s) or paid to whoever may be legally entitled thereto at
such time.
(f) The Administrative Agent shall exercise reasonable care in the custody
and preservation of any funds held in the Letter of Credit Collateral Account
and shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords its own property, it being understood that the Administrative Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any Persons with respect to any such funds.
8.2. Amendments.
8.2.1. Subject to the provisions of this Article VIII, the Required Lenders
(or the Administrative Agent and the Syndication Agent with the consent in
writing of the Required Lenders) and the Borrowers may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of each Lender affected
thereby (which, with respect to clauses (b), (d) and (e) below shall be deemed
to include all of the Lenders):
(a) Extend the final maturity of any Loan or Reimbursement Obligation or
forgive all or any portion of the principal amount thereof, or reduce the rate
or extend the time of payment of interest or fees thereon.
(b) Modify the percentage specified in the definition of Required Lenders.
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(c) Extend the Facility Termination Date, or reduce the amount or extend
the payment date for, the mandatory payments required under Section 2.9, or
increase the amount of the Multicurrency Commitment or Revolving Credit
Commitment of any Lender hereunder, or permit any Borrower to assign its rights
under this Agreement (other than in connection with a transaction involving a
Foreign Subsidiary Borrower permitted pursuant to the terms of Section 6.11).
(d) Amend this Section 8.2.1.
(e) Release the Company or reduce any obligation of the Company in its
capacity as the Guarantor of the Obligations of the Foreign Subsidiary
Borrowers.
8.2.2. In addition to amendments effected pursuant to the foregoing,
Schedule 3 may be amended as follows:
(i) Schedule 3 will be amended to add Subsidiaries of the Company as
additional Foreign Subsidiary Borrowers upon (A) execution and delivery by
the Company, any such Foreign Subsidiary Borrower and the Administrative
Agent and the Syndication Agent, of a Joinder Agreement providing for any
such Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery
to the Agents of (x) a Foreign Subsidiary Opinion in respect of such
additional Foreign Subsidiary Borrower and (y) such other documents with
respect thereto as the Administrative Agent and the Syndication Agent shall
reasonably request.
(ii) Schedule 3 will be amended to remove any Subsidiary as a Foreign
Subsidiary Borrower upon (A) written notice by the Company to the Agents to
such effect and (B) repayment in full of all outstanding Loans of such
Foreign Subsidiary Borrower.
8.2.3. With respect to any Schedules other than Schedule 3 (addressed in
Section 8.2.2 above) or Schedule 5, at any time at the request of the
Administrative Agent and at such additional times as the Company determines, the
Company shall supplement each schedule or representation herein or in the other
Loan Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be set
forth or described in such schedule or as an exception to such representation or
which is necessary to correct any information in such schedule or representation
which has been rendered inaccurate thereby. Unless any such supplement to such
schedule or representation discloses the existence or occurrence of events,
facts or circumstances which are not prohibited by the terms of this Agreement
or any other Loan Documents, such supplement to such schedule or representation
shall not be deemed an amendment thereof unless expressly consented to in
writing by the Administrative Agent, the Syndication Agent and the Required
Lenders, and no such amendments, except as the same may be consented to in a
writing which expressly includes a waiver, shall be or be deemed a waiver by the
Agents or any Lender of any Default disclosed therein. Any items disclosed in
any such supplemental disclosures shall be included in the calculation of any
limits, baskets or similar restrictions contained in this Agreement or any of
the other Loan Documents.
8.2.4. No amendment of any provision of this Agreement relating to any
Agent shall be effective without the written consent of such Agent. No amendment
of this Agreement relating to the Swing Line Bank shall be effective without the
written consent of the Swing Line Bank. No amendment of this Agreement relating
to any Issuer shall be effective without the written consent of such Issuer. No
amendment of any provision of this Agreement which subjects any Appointed Lender
to any additional obligation hereunder or otherwise affects its rights hereunder
as described in Section 12.5 shall be effective without the written consent of
such Appointed Lender or its Appointing Lender. The Administrative Agent may
waive payment of the fee required under Section 13.3.2 without obtaining the
consent of any other party to this Agreement.
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8.3. Preservation of Rights. No delay or omission of the Lenders or an
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrowers to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agents and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GUARANTY
9.1. Guaranty. (a) The Company hereby unconditionally and irrevocably
guarantees to the Agents and the Lenders and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Without limiting the provisions of Section10.7, the Company further
agrees to pay any and all expenses (including, without limitation, all
reasonable fees and disbursements of counsel) which may be paid or incurred by
any Agent or Lender in enforcing any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Company under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
(c) No payment or payments made by any Borrower or any other Person or
received or collected by any Agent or Lender from any Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Company hereunder which shall, notwithstanding any such
payment or payments, remain liable hereunder for the Obligations until the
Obligations are paid in full and the Commitments are terminated.
9.2. No Subrogation. Notwithstanding any payment or payments made by the
Company hereunder, or any setoff or application of funds of the Company by any
Agent or Lender, the Company shall not be entitled to be subrogated to any of
the rights of any Agent or Lender against the Borrowers or against any
collateral security or guarantee or right of offset held by any Agent or Lender
for the payment of the Obligations, nor shall the Company seek or be entitled to
seek any contribution or reimbursement from the Borrowers in respect of payments
made by the Company hereunder, until all amounts owing to the Agents and the
Lenders by the Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Company on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the Company in trust
for the Agents and the Lenders, segregated from other funds of the Company, and
shall, forthwith upon receipt by the Company, be turned over to the
Administrative Agent in the exact form received by the Company (duly endorsed by
the Company to the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Administrative Agent
may determine.
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The provisions of this paragraph shall survive the termination of this Agreement
and the payment in full of the Obligations and the termination of the
Commitments.
9.3. Amendments, etc. with respect to the Obligations; Waiver of Rights.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
any Agent or Lender may be rescinded by such Agent or such Lender, and any of
the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Agent or Lender, and any
Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, in accordance with the provisions thereof as any Agent (or the Required
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by any Agent
or Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. No Agent or Lender shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for this Agreement or any property subject thereto. When
making any demand hereunder against the Company, any Agent or Lender may, but
shall be under no obligation to, make a similar demand on the Borrowers or any
other guarantor, and any failure by any Agent or Lender to make any such demand
or to collect any payments from the Borrowers or any such other guarantor or any
release of the Borrowers or such other guarantor shall not relieve the Company
of its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of any Agent or
Lender against the Company. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
9.4. Guarantee Absolute and Unconditional. The Company waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by any Agent or Lender upon this Agreement or
acceptance of this Agreement; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Agreement; and all dealings
between the Borrowers and the Company, on the one hand, and the Agents and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrowers and the Company with respect to the Obligations. This
Article IX shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any Agent
or Lender, (b) any defense, setoff or counterclaim (other than a defense of
payment or performance by the Borrowers) which may at any time be available to
or be asserted by the Borrowers against any Agent or Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrowers
or the Company) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
Company under this Section 9.4, in bankruptcy or in any other instance (other
than a defense of payment or performance by the Borrowers). When pursuing its
rights and remedies hereunder against the Company, any Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against the Borrowers or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by any Agent or Lender to pursue such other rights or
remedies or to collect any payments from the Borrowers or any such other Person
or to realize upon any such
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collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrowers or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Company of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of any Agent or Lender
against the Company. This Article IX shall remain in full force and effect and
be binding in accordance with and to the extent of its terms upon the Company
and its successors and assigns, and shall inure to the benefit of the Agents and
the Lenders, and their respective successors, indorsees, transferees and
assigns, until all the Obligations and the obligations of the Company under this
Agreement shall have been satisfied by payment in full and the Commitments shall
be terminated, notwithstanding that from time to time during the term of this
Agreement the Borrowers may be free from any Obligations.
9.5. Reinstatement. This Article IX shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
any Agent or Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
9.6. Payments. The Company hereby agrees that all payments required to be
made by it hereunder will be made to the Administrative Agent without setoff or
counterclaim in accordance with the terms of the Obligations, including, without
limitation, in the currency in which payment is due.
ARTICLE X
GENERAL PROVISIONS
10.1. Survival of Representations. All representations and warranties of
the Borrowers contained in this Agreement shall survive delivery of the Loan
Documents and the making of the Loans herein contemplated.
10.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to a
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. Taxes. Any taxes (excluding income taxes and franchise taxes (imposed
in lieu of income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document)) or other similar
assessments or charges made by any governmental or revenue authority in respect
of the Loan Documents shall be paid by the Company, together with interest and
penalties, if any.
10.4. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Agents and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agents and the
Lenders relating to the subject matter thereof other than any fee letters among
any Borrowers and any of the Agents and any other agreements of any of the
Borrowers with any Agent which survive the execution of the Loan Documents.
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10.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which an
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
10.7. Expenses; Indemnification. The Company shall reimburse each Agent and
the Joint Book Managers for any reasonable costs and out-of-pocket expenses
(including reasonable fees and time charges of attorneys for such Agent or Joint
Book Manager, which attorneys may be employees of such Agent) paid or incurred
by such Agent in connection with the syndication or the commitments and the
preparation, negotiation, execution, delivery, review, amendment, modification
and administration of the Loan Documents, except as otherwise agreed in writing
from time to time; provided, however, that for the period up to and including
the Closing Date, with respect to matters of U.S. law, the aforementioned
reasonable fees and time charges of attorneys shall be limited to those incurred
by Sidley & Austin. The Company also agrees to reimburse the Agents and the
Lenders for any costs, and out-of-pocket expenses (including fees and time
charges of attorneys for the Agents and the Lenders, which attorneys may be
employees of the Agents or the Lenders) paid or incurred by any Agent or Lender
in connection with the collection and enforcement of the Loan Documents subject
to the limitations set forth below. The Company further agrees to indemnify each
Joint Book Manager, Agent and Lender, and their respective directors, officers
and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not any Agent or Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Loan subject to the limitations set forth below, provided that the Company shall
have no obligation to indemnify any person in respect of any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings except as (and to the extent) provided in Section 3.6 and
Section 10.3 hereof. The Company shall have no obligation to indemnify any Joint
Book Manager, Agent or Lender (or their respective directors, officers and
employees) to the extent that any losses, claims, damages, penalties, judgments,
liabilities and expenses are determined by a court of competent jurisdiction in
a final, non-appealable order to have resulted from the gross negligence or
willful misconduct of, or violation of applicable laws or any of the Loan
Documents by, any such Person. The obligations of the Company under this Section
shall survive the termination of this Agreement.
10.8. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the appropriate Agent with sufficient
counterparts so that the Administrative Agent may furnish one to each of the
Lenders if it so deems appropriate.
10.9. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
10.10. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
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10.11. Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Agents shall be solely that of borrower and lender. No Agent
or Lender shall have any fiduciary responsibilities to any Borrower. No Agent or
Lender undertakes any responsibility to any Borrower to review or inform any
Borrower of any matter in connection with any phase of such Borrower's business
or operations. Each Borrower agrees that no Agent or Lender shall have liability
to any Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by any Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined by a court of competent jurisdiction in a
final and non-appealable order that such losses resulted from the gross
negligence or willful misconduct of, or violation of applicable laws or any of
the Loan Documents by, the party from which recovery is sought. No Agent or
Lender shall have any liability with respect to, and each Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby.
10.12. Confidentiality. (a) Each of the Company and the Foreign Subsidiary
Borrowers authorizes the Agents, the Joint Book Managers and each Lender, as any
Agent, Joint Book Manager or Lender may elect in their sole discretion, to
discuss with and furnish to the Lenders or to any other Person having an
interest in the Obligations (whether as a guarantor, pledgor of collateral,
participant, Transferee, potential Transferee or otherwise) all financial
statements, audit reports and other information pertaining to the Company and
its Subsidiaries whether such information was provided by the Company or
prepared or obtained by any Agent, any Joint Book Manager or any Lender, subject
to the provisions of this Section 10.13.
(b) Any Lender may disclose to any one of its affiliates or (with the prior
consent of the Company, which consent shall not be unreasonably withheld or
delayed and shall be deemed to have been given if, within two days of receipt by
the Company of any oral or written request for consent, such consent shall not
have been expressly refused) any other Person whom it is proposing to enter, or
has entered into, any kind of transfer, participation, assignment or other
agreement regarding a transfer of interests in connection with this Agreement,
(i) copies of any Loan Documents and (ii) any information which such Lender has
acquired under or in connection with the Loan Documents, provided that such
affiliate or Person shall first have agreed in writing (x) to be bound by the
provisions of this Section 10.13(b), (y) to use such information only for
purposes of analyzing and reviewing its acquisition or potential acquisition of
any interest in connection with this Agreement and (z) to recognize and
acknowledge the rights of the Company as a third-party beneficiary of the
agreement embodied in such writing. Subject to the terms of the preceding
sentence, each Lender shall keep confidential from any third party (including
without limitation any affiliate of such Lender not having an interest in the
purchase or transfer of any interest in connection with this Agreement) any data
or information received by it from the Company or any of the other Borrowers in
connection with this Agreement which is designated in writing as confidential by
the Company or such other Borrowers, except (1) any such data or information as
is or becomes publicly available or generally known otherwise than as a result
of a breach by such Lender of the terms of this sentence, (2) as is required by
law or regulation or by a court of competent jurisdiction, whether pursuant to
any procedure for discovering documents or otherwise, (3) as required or
requested by any governmental or banking agency or regulatory authority of
competent jurisdiction, (4) to its auditors, attorneys or other professional
advisors or (5) as may be necessary to protect the interests of any of the
Lenders, Joint Book Managers or the Agents or any of them under the Loan
Documents in connection with any enforcement proceeding under the Loan
Documents. Notwithstanding the foregoing, nothing herein shall prohibit the
exchange of information between a Lender and a Lender's affiliate or Lending
Installation to the extent necessary for the administration of the interests of
such parties hereunder.
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(c) None of the Agents or Joint Book Managers or any of their respective
employees, officers, directors or agents makes any representation or warranty
regarding any audit reports or other analyses of the Company's and its
Subsidiaries' condition which any Agent or Joint Book Manager may elect to
distribute, whether such information was provided by the Company or prepared or
obtained by the one or more of the Agents or Joint Book Managers, nor shall any
of the Agents, Joint Book Managers or any of their respective employees,
officers, directors or agents be liable to any Person or entity receiving a copy
of such reports or analyses for any inaccuracy or omission contained in or
relating thereto.
10.13. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any Margin Stock for the repayment of the Loans provided for
herein.
ARTICLE XI
THE AGENTS
11.1. Appointment; Nature of Relationship. Bank One is hereby appointed by
the Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. Chase is
hereby appointed by the Lenders as the Syndication Agent hereunder and under
each other Loan Document, and each of the Lenders irrevocably authorizes the
Syndication Agent to act as the contractual representative of such Lender with
the rights and duties expressly set forth herein and any other Loan Documents.
Bank of America, N.A. and Citicorp USA, Inc. are each hereby appointed by the
Lenders as a Documentation Agent hereunder and under each other Loan Document,
and each of the Lenders irrevocably authorizes each Documentation Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and any other Loan Documents. Each Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article XI. Notwithstanding the use of the defined terms "Administrative
Agent," "Syndication Agent", "Documentation Agent" and "Agents", it is expressly
understood and agreed that no Agent shall have any fiduciary responsibilities to
any Lender, Issuer or the Swing Line Bank by reason of this Agreement or any
other Loan Document and that each Agent is merely acting as the representative
of the Lenders, the Issuers and the Swing Line Bank with only those duties as
are expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, each Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, the Issuers or the
Swing Line Bank, (ii) is a "representative" of the Lenders, the Issuers and the
Swing Line Bank within the meaning of Section 9-105 of the Uniform Commercial
Code and (iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the other
Loan Documents. Each of the Lenders, the Issuers and the Swing Line Bank hereby
agrees to assert no claim against any Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Lender and Issuer and the Swing Line Bank hereby waives.
11.2. Powers. Each Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to such Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. No
Agent shall have any implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by such Agent.
11.3. General Immunity. No Agent nor any of their respective directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for (a) any action taken or omitted to be taken
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by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct; or (b) any determination by any Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Advances and Commitments hereunder to be classified as being part of a "highly
leveraged transaction".
11.4. No Responsibility for Loans, Recitals, etc. No Agent nor any of their
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, other
than conditions which are satisfied by such Agent's taking possession of any
documents as required by Article IV; (iv) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; or (v) the value,
sufficiency, creation, perfection or priority of any interest in any collateral
security. No Agent shall have any duty to disclose to the Lenders information
that is not required to be furnished by the Borrowers to such Agent at such
time, but is voluntarily furnished by the Borrowers to such Agent (either in its
capacity as an Agent or in its individual capacity).
11.5. Action on Instructions of Lenders. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders or all Lenders if required under Section 8.2.1), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of the Obligations. The Lenders
hereby acknowledge that no Agent shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. Each Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
11.6. Employment of Agents and Counsel. Each Agent may execute any of its
duties as an Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
11.7. Reliance on Documents; Counsel. Each Agent shall be entitled to rely
upon any promissory note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by such Agent, which
counsel may be employees of such Agent.
11.8. Agents' Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify (to the extent not reimbursed by a Borrower and without
limiting the obligation of any Borrower to do so) each Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Company for which such
Agent is entitled to reimbursement by the Company or the
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other Borrowers under the Loan Documents, (ii) for any other expenses incurred
by such Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against such Agent
in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of such
Agent. The obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement.
11.9. Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
such Agent has received written notice from a Lender or a Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that any Agent receives such
a notice, such Agent shall give prompt notice thereof to the Lenders.
11.10. Rights as a Lender. In the event any Agent is a Lender, such Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not an Agent,
and the term "Lender" or "Lenders" shall, at any time when such Agent is a
Lender, unless the context otherwise indicates, include such Agent in its
individual capacity. Any Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document, the
Company or any of its Subsidiaries in which the Company or such Subsidiary is
not restricted hereby from engaging with any other Person.
11.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, Joint Book Manager or any
other Lender and based on the financial statements prepared by the Borrowers and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
11.12. Successor Agents. Any Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of such a successor Agent or, if no such successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Administrative Agent shall so resign if at any time it
ceases to be a Lender, Multicurrency Lender, Swing Line Bank or Issuer. Any
Agent may be removed at any time with or without cause by written notice
received by such Agent from the Required Lenders, such removal to be effective
on the date specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on behalf of the
Borrowers and the Lenders, a successor Agent to such Agent. If no such successor
Agent shall have been so appointed by the Required Lenders within thirty days
after such resigning Agent's giving notice of its intention to resign, then such
resigning Agent may appoint, on behalf of the Company and the Lenders, a
successor Agent for itself. If any Agent has resigned or been removed and no
successor Agent has been appointed, the Lenders may perform all the duties of
such Agent hereunder and the Company shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent
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shall be a commercial bank having capital and retained earnings of at least
$50,000,000. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed Agent. Upon the effectiveness of the resignation or removal of any
Agent, the resigning or removed Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation or removal of an Agent, the provisions of this Article XI shall
continue in effect for the benefit of such Agent in respect of any actions taken
or omitted to be taken by it while it was acting as an Agent hereunder and under
the other Loan Documents.
11.13. No Duties Imposed Upon Syndication Agent, Documentation Agent or
Arranger. Except as otherwise expressly provided in this Agreement, none of the
Persons identified on the cover page to this Agreement, the signature pages to
this Agreement or otherwise in this Agreement as a "Syndication Agent" or
"Documentation Agent" or "Joint Book Manager" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than if
such Person is a Lender, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a "Syndication Agent" or "Documentation Agent" or "Joint Book Manager" shall
have or be deemed to have any fiduciary duty to or fiduciary relationship with
any Lender. In addition to the agreement set forth in Section 11.11, each of the
Lenders acknowledges that it has not relied, and will not rely, on any of the
Persons so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS; APPOINTED LENDERS
12.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default described in Sections 7.1.2, 7.1.6
or 7.1.7 occurs or the Loans are accelerated pursuant to Section 8.1, any and
all deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such Lender
by such Borrower.
12.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
a payment made to it upon its Loans to a Borrower (other than payments received
pursuant to Section 3.1, 3.2, 3.4, 3.6 or 10.7) in a greater proportion than
that received by any other Lender from such Borrower or its Loans, such Lender
agrees, promptly upon demand, to purchase a portion of the Loans to such
Borrower held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans to such Borrower. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3. Application of Payments. Subject to the provisions of Section 2.20,
the Administrative Agent shall, unless otherwise specified at the direction of
the Required Lenders which direction shall be consistent with the last sentence
of this Section 12.3, apply all payments and prepayments received after the
occurrence and during the continuance of a Default in respect of any Obligations
in the following order:
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(i) first, to pay interest on and then principal of any portion of the
Loans which an Agent may have advanced on behalf of any Lender for which
such Agent has not then been reimbursed by such Lender or the applicable
Borrower;
(ii) second, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Agents;
(iii) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the Issuer(s) of
the Facility Letters of Credit;
(iv) fourth, to pay interest due in respect of Swing Line Loans;
(v) fifth, to pay interest due in respect of Loans (other than Swing
Line Loans ) and Facility Letter of Credit Obligations;
(vi) sixth, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(vii) seventh, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans) and Facility Letter of
Credit Obligations;
(viii) eighth, to provide required cash collateral, if required
pursuant to Section 8.1;
(ix) ninth, to the ratable payment of all other Obligations; and
(x) tenth, to the Company.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Fixed Rate Loans
with those Fixed Rate Loans which have earlier expiring Interest Periods being
repaid prior to those which have later expiring Interest Periods. The order of
priority set forth in this Section 12.3 and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the
Agents, the Lenders, the Swing Line Bank and the Issuer(s) as among themselves.
The order of priority set forth in clauses (iii) through (ix) of this Section
12.3 may at any time and from time to time be changed by all of the Lenders
without necessity of notice to or consent of or approval by any of the
Borrowers, or any other Person; provided, that the order of priority of payments
in respect of Swing Line Loans may be changed only with the prior written
consent of the Swing Line Bank, the order of priority of payments in respect of
Facility Letter of Credit Obligations may be changed only with the prior written
consent of the applicable Issuers, and the order of priority of payments in
respect of Multicurrency Loans may be changed only with the prior written
consent of the Designated Multicurrency Lenders with respect to such
Multicurrency Loans. The order of priority set forth in clauses (i) and (ii) of
this Section 12.3 may be changed only with the prior written consent of the
Agents.
12.4. Loan Conversion/Participations. (a)(i) Immediately upon any
Conversion Event, to the extent not otherwise prohibited by a Requirement of Law
or otherwise, all applicable Loans outstanding in any currency other than U.S.
Dollars ("LOANS TO BE CONVERTED") shall be converted into U.S. Dollars
(calculated on the basis of the relevant Exchange Rates as of the Business Day
immediately preceding the date on which the Conversion Event has occurred)
("CONVERTED LOANS") and (ii) immediately upon the Conversion Event (with respect
to Loans described in the foregoing clause (i)) (A) each Lender severally,
unconditionally and irrevocably agrees that it shall purchase and assume in U.S.
Dollars an undivided
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percentage interest in such Converted Loans in an amount equal to its Conversion
Sharing Percentage of the outstanding principal amount of the Converted Loans
and (B) to the extent necessary to cause the Committed Outstandings Percentage
of each Lender to equal its Revolving Credit Commitment Percentage (calculated
immediately prior to the termination or expiration of the Revolving Credit
Loans), each Lender severally, unconditionally and irrevocably agrees that it
shall sell and assign or purchase and assume an undivided percentage interest in
Revolving Credit Loans then outstanding. Each Lender purchasing an interest
pursuant to this Section will immediately transfer to the Administrative Agent
in immediately available funds, the amounts of its purchased interest, and the
proceeds of such interest shall be distributed by the Administrative Agent to
each Lender from which an interest is being purchased in the amount(s) provided
for in the preceding sentence. All Converted Loans shall bear interest at the
rate which would otherwise be applicable to Floating Rate Loans.
(b) If, for any reason, the Loans to be Converted may not be converted into
U.S. Dollars in the manner contemplated by paragraph (a) of this Section 12.4,
(i) effective immediately upon such Conversion Event, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase and assume an
undivided percentage interest in such Loans to be Converted, in an amount equal
to its Conversion Sharing Percentage of such Loans to be Converted, and (ii)
each Lender shall sell and assign or purchase and assume undivided percentage
interests as provided in clause (a)(ii)(B) of this Section 12.4. Each Lender
purchasing an interest pursuant to this Section will immediately transfer to the
Administrative Agent in immediately available funds, the amounts of its
purchased interest, and the proceeds of such interest shall be distributed by
the Administrative Agent to each Lender from which an interest is being
purchased in the amount(s) provided for in the preceding sentence.
(c) To the extent any Non-Excluded Taxes are required to be withheld from
any amounts payable by a Lender to another Lender in connection with its
interest in any Converted Loan, each Borrower, with respect to the relevant
Loans made to it, shall be required to pay increased amounts to the Lender
receiving such payments to the same extent they would be required under Section
3.6 if such Borrower were making payments directly to such Lender; provided,
that each Lender shall use reasonable efforts to avoid or to minimize any
amounts which might otherwise be payable pursuant to Section 3.6, in accordance
with Section 3.6.4. In addition, to the extent such conversion shall occur other
than at the end of an Interest Period, the applicable Borrower shall pay to the
applicable Designated Multicurrency Lenders, all losses and breakage costs
related thereto in accordance with Section 3.4.
(d) At any time after the actions contemplated by clause (a) or (b) of this
Section 12.4 have been taken, upon the notice of any Lender to the Borrowers the
following shall occur: (i) the Company (through the Guaranty contained in
Article IX) shall automatically be deemed to have assumed the Converted Loans in
which such Lender holds an interest, and (ii) such Loans shall be assigned by
the relevant Lender holding such Loans or obligations to the Lender who gave the
notice requesting such assumption by the Company.
12.5. Appointed Lenders. (a) Subject to the terms and conditions set forth
in this Section 12.5(a), any Lender may from time to time elect to designate an
Eligible Appointee to provide all or any part of the Loans to be made by such
Lender pursuant to this Agreement; provided the designation of an Eligible
Appointee by any Lender for purposes of this Section 12.5(a) shall be subject to
the approval of the Administrative Agent. Upon the execution by the parties to
each such designation of an agreement in the form of Exhibit J hereto (an
"APPOINTMENT AGREEMENT") and the acceptance thereof by the Administrative Agent,
the Eligible Appointee shall become an Appointed Lender for purposes of this
Agreement. The Appointing Lender shall thereafter have the right to permit the
Appointed Lender to provide all or a portion of the Loans to be made by the
Appointing Lender pursuant to the terms of this Agreement and the making
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of such Loans or portion thereof shall satisfy the obligation of the Appointing
Lender to the same extent, and as if, such Loan was made by the Appointing
Lender. As to any Loan made by it, each Appointing Lender shall have all the
rights a Lender making such Loan would have under this Agreement and otherwise;
provided, (x) that all voting rights under this Agreement shall be exercised
solely by the Appointing Lender and (y) each Appointing Lender shall remain
solely responsible to the other parties hereto for its obligations under this
Agreement, including the obligations of a Lender in respect of Loans made by its
Appointed Lender. No additional promissory notes shall be required with regard
to Loans made by an Appointed Lender; provided, however, to the extent any
Appointed Lender shall advance funds, the Appointing Lender shall be deemed to
hold any promissory notes in its possession as an agent for such Appointed
Lender to the extent of the Loan funded by such Appointed Lender. Such
Appointing Lender shall act as administrative agent for its Appointed Lender and
give and receive notices and communications hereunder. Any payments for the
account of any Appointed Lender shall be paid to its Appointing Lender as
administrative agent for such Appointed Lender and no Borrower or Agent shall be
responsible for any Appointing Lender's application of any such payments. In
addition, any Appointed Lender may (i) with notice to, but without the consent
of the Company or the Administrative Agent, assign all or portions of its
interests in any Loans to its Appointing Lender or to any financial institution
consented to by the Company and the Administrative Agent providing liquidity
and/or credit facilities to or for the account of such Appointed Lender and (ii)
subject to advising any such Person that such information is to be treated as
confidential in accordance with such Person's customary practices for dealing
with confidential, non-public information, disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any guarantee, surety, credit or liquidity
enhancement to such Appointed Lender.
(b) Each party to this Agreement hereby agrees that it shall not institute
against, or join any other person in instituting against any Appointed Lender
any bankruptcy, reorganization, arrangements, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law for one year and a day after the payment in full of all outstanding senior
indebtedness of any Appointed Lender; provided that the Appointing Lender for
each Appointed Lender hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage and expense arising out of their
inability to institute any such proceeding against such Appointed Lender. This
Section 12.5 shall survive the termination of this Agreement.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents (other than in connection with a transaction involving a
Foreign Subsidiary Borrower permitted pursuant to the terms of Section 6.11) and
(ii) any assignment by any Lender must be made in compliance with Section 13.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrowers or any Agent, assign all or any portion of its
rights under this Agreement, the Loan Documents to a Federal Reserve Bank;
provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
Agent may treat the payee of any Loan Document as the owner thereof for all
purposes hereof unless and until such payee complies with Section 13.3 in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Administrative Agent. Any assignee or
transferee of any of the Loans or a promissory note agrees by acceptance thereof
to be bound by all the terms and
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provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of any of the Loans or a holder of any promissory note,
shall be conclusive and binding on any subsequent holder, transferee or assignee
of such Loans or of any promissory note or notes issued in exchange therefor.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("PARTICIPANTS") participating interests
in any Loan owing to such Lender, any promissory note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Loan or promissory note for all purposes under the Loan
Documents, all amounts payable by the Borrowers under this Agreement shall be
determined as if such Lender had not sold such participating interests
(including without limitation payments with respect to Non-Excluded Taxes), and
the Borrowers and the Agents shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the
Loan Documents.
13.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which would require the consent of all Lenders under Section 8.2.1.
13.2.3. Benefit of Setoff; Increased Costs and Yield Protection. The
Borrowers agrees that each Participant shall be deemed to have the right of
setoff provided in Section 12.1, the right to yield protection provided in
Section 3.1 and right to funding indemnification provided in Section 3.4 in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each Lender
shall retain the right of setoff provided in Section 12.1, the right to yield
protection provided in Section 3.1 and right to funding indemnification provided
in Section 3.4 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 12.1 or by
recovering amounts to which it is entitled pursuant to Section 3.1 or 3.4,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section
12.2 as if each Participant were a Lender.
13.3. Assignments.
13.3.1. Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks, finance companies, insurance companies or other financial
institutions or funds that are engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business or, after
the occurrence of any Default, any other entity ("PURCHASERS") all or any part
of its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit H hereto (an "ASSIGNMENT") or in such other
form as may be agreed to by the parties thereto. The consent of the Company, the
Administrative Agent, and the Syndication Agent with respect thereto shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender, an Affiliate thereof (which Affiliate is a bank, finance
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company, insurance company or other financial institution) or a special purpose
vehicle administered or sponsored by any such Lender or Affiliate that is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business; provided, however, that if a Default has
occurred and is continuing, the consent of the Company shall not be required.
Such consent by the Company and the Agents shall not be unreasonably withheld or
delayed. Each such assignment (other than an assignment to another Lender or an
Affiliate thereof) shall be in an amount not less than the lesser of (i)
$10,000,000 and in integral multiples of $1,000,000 thereafter unless otherwise
agreed to by the Administrative Agent and, if no Default has occurred and is
continuing, the Company, or (ii) the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such assignment). If any Lender assigns
a part of its rights and obligations in respect of Revolving Credit Loans and/or
Revolving Credit Commitment under this Agreement to a Purchaser, such Lender
shall assign proportionate interests in its respective Pro Rata Multicurrency
Loans and Multicurrency Commitment in respect of Pro Rata Multicurrency Loans
and other related rights and obligations hereunder to such Purchaser, and if any
Lender assigns a part of its rights and obligations under this Agreement in
respect of its Pro Rata Multicurrency Loans and/or Multicurrency Commitments in
respect of Pro Rata Multicurrency Loans to a Purchaser, such Lender shall assign
proportionate interests in its Revolving Credit Loans and Revolving Credit
Commitments to such Purchaser.
13.3.2. Effect; Effective Date. Upon (i) delivery to the Agents of a notice
of assignment, substantially in the form attached as Exhibit I to Exhibit H
hereto (a "NOTICE OF ASSIGNMENT"), together with any consents required by
Section 13.3.1, and (ii) payment of a $3,500 fee to the Administrative Agent for
processing such assignment (provided that such fee shall not be required if such
assignment is to an existing Lender or an Affiliate thereof), such assignment
shall become effective on the effective date specified in such Notice of
Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Company, the Lenders or
the Agents shall be required to release the transferor Lender with respect to
the percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Administrative Agent and the Company shall
make appropriate arrangements so that any requested promissory notes, if
applicable, are issued to such transferor Lender.
13.3.3. Register. The Administrative Agent, acting solely for this purpose
as the agent of the Borrowers, shall maintain at its address referred to in
Section 14.1 a copy of each Notice of Assignment delivered to it and a register
(the "REGISTER") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrowers, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Lender at any
reasonable time and from time upon reasonable prior notice.
13.4. Dissemination of Information. Each Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries provided
that each Transferee and prospective Transferee agrees to be bound by Section
10.12.
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13.5. Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.6.
ARTICLE XIV
NOTICES
14.1. Notices. Except as otherwise permitted by Article II with respect to
borrowing notices, all notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, facsimile transmission or
similar writing) and shall be given to such party: (x) in the case of a Borrower
or an Agent, at its address or facsimile number set forth on the signature pages
hereof, (y) in the case of any Lender, at its address or facsimile number set
forth in Schedule 1 hereto or otherwise established pursuant to an Assignment or
(z) in the case of any party, such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Administrative
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article II
shall not be effective until received.
14.2. Change of Address. Any Borrower, Agent and Lender may each change the
address for service of notice upon it by a notice in writing to the other
parties hereto.
ARTICLE XV
COUNTERPARTS
15.1. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrowers, the Agents, the Swing Line Bank and the Lenders.
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
16.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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16.2. WAIVER OF JURY TRIAL. EACH BORROWER, EACH AGENT AND EACH LENDER
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
16.3. Submission To Jurisdiction; Waivers. (a) Each of the Company and the
Foreign Subsidiary Borrowers hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of state or
federal courts located in Chicago, Illinois and appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company or such Foreign Subsidiary Borrower, as the case may be, at the
address specified in Section 14.1, or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
(b) Each Foreign Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
Section 16.3(i) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of Company at its
address for notices set forth in Section 14.1.
16.4. Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) no Agent or Lender has any fiduciary relationship with or duty to such
Borrower arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Agents and the Lenders, on the
one hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrowers and the Lenders.
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16.5. Power of Attorney. To the extent enforceable under the laws of its
applicable jurisdiction of organization, each Foreign Subsidiary Borrower hereby
grants to the Company an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that each Agent and each Lender have executed and
delivered this Agreement and each other Loan Document to which it is a party,
and has performed its obligations under this Agreement and each other Loan
Document to which it is a party, in reliance upon the irrevocable grant of such
power of attorney pursuant to this subsection. The power of attorney granted by
each Foreign Subsidiary Borrower hereunder is coupled with an interest.
16.6. Judgment. (a) If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, under applicable law that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency in the city in
which it normally conducts its foreign exchange operation for the first currency
on the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it to
any Lender hereunder shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "AGREEMENT
CURRENCY"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agents have executed
this Agreement as of the date first above written.
BORROWERS:
ARVINMERITOR, INC.
By:
Name:
Title:
Attention:
Phone:
Facsimile:
E-mail:
MERITOR AUTOMOTIVE CANADA, INC.
By:
Name:
Title:
Attention:
Phone:
Facsimile:
E-mail:
ARVIN FINANCE IRELAND
By:
Name:
Title:
Attention:
Phone:
Facsimile:
E-mail:
MERITOR HEAVY VEHICLE SYSTEMS LIMITED
By:
Name:
Title:
Attention:
Phone:
Facsimile:
E-mail:
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LENDERS:
BANK ONE, NA (Main Office Chicago) as
Administrative Agent, an Issuer and as a Lender
By:
Print Name:
Title:
611 Woodward Avenue
Detroit, Michigan 48226
Attention:
Phone:
Facsimile:
E-mail:
THE CHASE MANHATTAN BANK, as Syndication Agent and
as a Lender
By:
Print Name:
Title:
[Address]
Attention:
Phone:
Facsimile:
E-mail:
CITICORP USA, INC., as a Documentation Agent and as
a Lender
By:
Print Name:
Title:
[Address]
Attention:
Phone:
Facsimile:
E-mail:
BANK OF AMERICA, N.A., as a Documentation Agent and
as a Lender
By:
Print Name:
Title:
[Address]
Attention:
Phone:
Facsimile:
E-mail:
[OTHER LENDERS TO FOLLOW]
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