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EXHIBIT 10.b
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364-DAY CREDIT AGREEMENT
dated as of June 28, 2000
among
ARVINMERITOR, INC.,
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.............................................................................................14
2.2. Extension of Revolving Loan Termination Date; Conversion to Term Loan...................................15
2.3. Repayment of Revolving Credit Loans; Evidence of Debt...................................................15
2.4. Procedures for Revolving Credit Borrowing...............................................................16
2.5. Termination or Reduction of Commitment..................................................................17
2.6. Facility, Utilization and Agent Fees....................................................................17
2.7. Optional and Mandatory Principal Payments on All Loans..................................................17
2.8. Conversion and Continuation of Outstanding Advances.....................................................18
2.9. Interest Rates; Interest Payment Dates; Interest and Fee Basis..........................................18
2.10. Changes in Interest Rate, etc..........................................................................19
2.11. Rates Applicable After Default.........................................................................19
2.12. Pro Rata Payment, Method of Payment....................................................................19
2.13. Telephonic Notices.....................................................................................20
2.14. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions........................20
2.15. Lending Installations..................................................................................20
2.16. Non-Receipt of Funds by the Administrative Agent.......................................................20
2.17. Application of Payments with Respect to Defaulting Lenders.............................................20
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1. Yield Protection........................................................................................21
3.2. Changes in Capital Adequacy Regulations.................................................................21
3.3. Availability of Types of Advances.......................................................................22
3.4. Funding Indemnification.................................................................................22
3.5. Lender Statements; Survival of Indemnity................................................................22
3.6. Taxes...................................................................................................23
3.7. Substitution of Lender..................................................................................24
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advances........................................................................................25
4.2. Each Advance............................................................................................27
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Corporate Existence and Standing........................................................................27
5.2. Authorization and Validity..............................................................................27
5.3. No Conflict; Government Consent.........................................................................27
5.4. Financial Statements....................................................................................28
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5.5. Material Adverse Change.................................................................................28
5.6. Taxes...................................................................................................28
5.7. Litigation and Contingent Obligations...................................................................28
5.8. Subsidiaries............................................................................................28
5.9. ERISA...................................................................................................29
5.10. Accuracy of Information................................................................................29
5.11. Regulation U...........................................................................................29
5.12. Material Agreements....................................................................................29
5.13. Compliance With Laws...................................................................................29
5.14. Plan Assets; Prohibited Transactions...................................................................29
5.15. Environmental Matters..................................................................................29
5.16. Investment Company Act.................................................................................30
5.17. Public Utility Holding Company Act.....................................................................30
ARTICLE VI
COVENANTS
6.1. Financial Reporting.....................................................................................30
6.2. Use of Proceeds.........................................................................................31
6.3. Notice of Default.......................................................................................31
6.4. Conduct of Business.....................................................................................31
6.5. Taxes...................................................................................................32
6.6. Insurance...............................................................................................32
6.7. Compliance with Laws....................................................................................32
6.8. Maintenance of Properties...............................................................................32
6.9. Inspection..............................................................................................32
6.10. Priority Indebtedness..................................................................................32
6.11. Merger.................................................................................................32
6.12. Sale of Assets.........................................................................................33
6.13. Conduct of Business; Investments and Acquisitions......................................................33
6.14. Liens..................................................................................................33
6.15. Transactions with Affiliates and Joint Ventures........................................................35
6.16. Contingent Obligations.................................................................................35
6.17. Sale and Leaseback.....................................................................................35
6.18. Subordinated Indebtedness; Restricted Payments.........................................................35
6.19. Guarantees.............................................................................................36
6.20. Debt Ratio.............................................................................................36
6.21. Financial Contracts....................................................................................36
ARTICLE VII
DEFAULTS
7.1. Defaults................................................................................................36
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration............................................................................................38
8.2. Amendments..............................................................................................38
8.3. Preservation of Rights..................................................................................39
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations.............................................................................39
9.2. Governmental Regulation.................................................................................39
9.3. Taxes...................................................................................................39
9.4. Headings................................................................................................40
9.5. Entire Agreement........................................................................................40
9.6. Several Obligations; Benefits of this Agreement.........................................................40
9.7. Expenses; Indemnification...............................................................................40
9.8. Numbers of Documents....................................................................................40
9.9. Accounting..............................................................................................41
9.10. Severability of Provisions.............................................................................41
9.11. Nonliability of Lenders................................................................................41
9.12. Confidentiality........................................................................................41
9.13. Nonreliance............................................................................................42
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship....................................................................42
10.2. Powers.................................................................................................42
10.3. General Immunity.......................................................................................43
10.4. No Responsibility for Loans, Recitals, etc.............................................................43
10.5. Action on Instructions of Lenders......................................................................43
10.6. Employment of Agents and Counsel.......................................................................43
10.7. Reliance on Documents; Counsel.........................................................................43
10.8. Agents' Reimbursement and Indemnification..............................................................44
10.9. Notice of Default......................................................................................44
10.10. Rights as a Lender....................................................................................44
10.11. Lender Credit Decision................................................................................44
10.12. Successor Agents......................................................................................44
10.13. No Duties Imposed Upon Syndication Agent, Documentation Agent or Arranger.............................45
ARTICLE XI
SETOFF; ADJUSTMENTS AMONG LENDERS; APPOINTED LENDERS
11.1. Setoff.................................................................................................45
11.2. Ratable Payments.......................................................................................45
11.3. Application of Payments................................................................................45
11.4. Appointed Lenders......................................................................................46
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns.................................................................................47
12.2. Participations.........................................................................................47
12.3. Assignments............................................................................................48
12.4. Dissemination of Information...........................................................................49
12.5. Tax Treatment..........................................................................................49
ARTICLE XIII
NOTICES
13.1. Notices................................................................................................49
13.2. Change of Address......................................................................................50
ARTICLE XIV
COUNTERPARTS
14.1. Counterparts...........................................................................................50
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
15.1. CHOICE OF LAW..........................................................................................50
15.2. WAIVER OF JURY TRIAL...................................................................................50
15.3. Submission To Jurisdiction; Waivers....................................................................50
15.4. Acknowledgments........................................................................................51
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Exhibits
EXHIBIT A -- Form of Promissory Note
EXHIBIT B -- Form of Compliance Certificate
EXHIBIT C -- Form of Borrower's Counsel's Opinion
EXHIBIT D -- Form of Written Money Transfer Instructions
EXHIBIT E -- Form of Assignment Agreement
EXHIBIT F -- List of Closing Documents
EXHIBIT G -- Appointment Agreement
SCHEDULES
Schedule 1 -- Commitments
Schedule 2 -- Litigation
Schedule 3 -- Subsidiaries
Schedule 4 -- ERISA
Schedule 5 -- Permitted Subsidiary Public Indebtedness
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THIS 364-DAY CREDIT AGREEMENT (this "AGREEMENT"), dated as of June 28,
2000, among ARVINMERITOR, INC., an Indiana corporation (the "BORROWER"), 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:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower 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.
"Administrative Agent" means Bank One in its capacity as administrative
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Administrative Agent appointed pursuant to
Article X.
"Advance" means a borrowing hereunder (or continuation or conversion
thereof) consisting of the several Loans made on the same Borrowing Date (or
date of conversion or continuation) by the Lenders to the Borrower of the same
Type and, in the case of Eurodollar Advances, for the same Interest Period.
"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 Borrower or vice versa.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agents.
"Aggregate Commitments" means the aggregate amount of the 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 pursuant to Section 2.5.
"Aggregate 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 Loans.
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"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 Borrower notifies the Administrative Agent that the Borrower 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 Borrower that the Required Lenders wish
to amend Article VI for such purpose), then the Borrower'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
Borrower and the Required Lenders.
"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 0.475% per annum.
"Appointed Lender" means, with respect to each Appointing Lender, each
Eligible Appointee designated by such Appointing Lender pursuant to Section
11.4.
"Appointing Lender" means, with respect to each Appointed Lender, the
Lender that designated such Appointed Lender pursuant to Section 11.4.
"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 12.3.1.
"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
Borrower or any person designated by any such Person in writing to the
Administrative Agent from time to time, acting singly.
"Available 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 Commitment in effect on such date over (b) the Aggregate
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.
"Borrower" is defined in the preamble hereto.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.4 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
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"Business Day" means (a) 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 (b)
when such term is used in any context in this Agreement (including as described
in the foregoing clause (a)), such term shall mean a day which, in addition to
complying with any applicable requirements set forth in the foregoing clause
(a), 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.
"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.
"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 Borrower entitled to vote generally in the
election of the directors of the Borrower;
(ii) during any period of twelve (12) consecutive calendar
months, the board of directors of the Borrower shall cease to have as a
majority of its members individuals who either: (a) were directors of
the Borrower on the first day of such period, or (b) were elected or
nominated for election to the board of directors of the Borrower 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 Borrower on the first day of such
period, or whose election or nomination for election was so approved;
or
(iii) the Borrower 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 Borrower, in either event pursuant to a transaction in
which the outstanding Capital Stock of the Borrower 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.
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"Combined Commitment" means the sum of (1) the aggregate of the
"Commitments" under the 5-Year Revolving Credit Agreement (which, after such
"Commitments" have been terminated, shall be based on the aggregate of such
"Commitments" immediately prior to such termination) and (2) (a) prior to the
Conversion Date, the aggregate of the Commitments hereunder (which, after the
Commitments have been terminated, other than as a result of a conversion
pursuant to Section 2.2.2 hereof, shall be based on the aggregate of the
Commitments immediately prior to such termination) and (b) from and after the
Conversion Date, the Aggregate Outstandings of all Lenders.
"Combined Utilized Amount" means the sum of (1) the Aggregate
Outstandings of all the Lenders and (2) the "Aggregate Ratable Outstandings" of
all the "Lenders" plus the "Aggregate Non- Pro Rata Outstandings" of all the
"Lenders" under and as defined in the 5-Year Revolving Credit Agreement
excluding any amounts attributable to outstanding "Multicurrency Swing Line
Loans" as defined therein or any of the Lender's funded participations in or
obligations to purchase participations in such Multicurrency Swing Line Loans.
"Commitment" means, as to any Lender at any time, its obligation to
make Revolving Credit Loans to the Borrower in an aggregate amount not to exceed
at any time outstanding the amount set forth opposite such Lender's name in
Schedule 1 under the heading "Commitment" or as otherwise established pursuant
to Section 12.3, as such amount may be reduced from time to time pursuant to
Section 2.5, 12.3 and the other applicable provisions hereof and "Commitments"
means the aggregate of all the Lenders' Commitments.
"Commitment Percentage" means as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Aggregate
Commitments of all Lenders (or, if the Commitments have terminated or expired,
the percentage which (a) the Aggregate Outstandings of such Lender at such time
then constitutes of (b) the Aggregate Outstandings of all Lenders at such time).
"Commitment Termination Date" means the earliest to occur of (a) the
Revolving Loan Termination Date, (b) the date of termination in whole of the
Aggregate Revolving Loan Commitment pursuant to Section 2.5 hereof or the
Revolving Loan Commitments pursuant to Article VIII hereof (other than pursuant
to Section 2.2.2) and (c) if the Merger has not occurred prior thereto, July 31,
2000.
"Consent Date" is defined in Section 2.2.1.
"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 2.8.
"Conversion Date" is defined in Section 2.2.2.
"Converted Loan Termination Date" means the date that is two years
after the Conversion Date (or, if such date is not a Business Day, on the
immediately preceding Business Day).
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"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.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that on any Borrowing Date fails
to make available to the Administrative Agent such Lender's Loans required to be
made to the Borrower on such Borrowing Date.
"Designated Financial Officer" means, the Borrower's chief financial
officer, treasurer, assistant treasurer or controller.
"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 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 X, and not in their individual capacities as
Lenders, and any successor Documentation Agent appointed pursuant to Article X.
"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 Borrower 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.
"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.
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"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at the
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 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 Loan which bears interest at the Eurodollar
Rate.
"Eurodollar Rate" means with respect to an Advance 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.
"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.
"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.
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"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.
"5-Year Revolving Credit Agreement" means that certain 5-Year Revolving
Credit Agreement of even date herewith among the Borrower, Meritor Automotive
Canada, Inc., Arvin Finance Ireland, Meritor Heavy Vehicle Systems Limited, the
other foreign subsidiary borrowers from time to time parties thereto, 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.
"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 an 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 Borrower 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.
"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.
"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 Borrower 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 Borrower and its Subsidiaries in accordance
with Agreement Accounting Principles during such period, net of any interest
income received by the Borrower 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.
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"Interest Period" means with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
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 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 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 that would otherwise extend beyond the Termination Date
shall end on the Termination Date; and
(iii) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"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.
"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.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and, to the extent permitted
by Section 12.3, assigns.
"Lending Installation" means, with respect to a Lender or an Agent, any
office, branch, subsidiary or affiliate of such Lender or Agent.
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"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.
"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 (including as converted pursuant to Section 2.2.2).
"Loan Documents" means this Agreement and the other documents and
agreements contemplated hereby and executed by the Borrower in favor of the
Administrative Agent or any Lender (excluding any Financial Contracts between
the Borrower and the Administrative Agent or any Lender).
"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 Borrower (or, prior to the
Merger, each of Arvin and Meritor) and its Subsidiaries taken as a whole (ii)
the ability of the Borrower 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.
"Net Worth" means the consolidated shareholder's equity of the Borrower
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 Borrower'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 Borrower.
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"Non-Excluded Taxes" is defined in Section 3.6.1.
"Notice of Assignment" is defined in Section 12.3.1.
"Notice to Convert" is defined in Section 2.2.2.
"Obligations" means collectively, the unpaid principal of and interest
on the Loans and all other obligations and liabilities of the Borrower under
this Agreement and the other Loan Documents owing to the Agents, any Lender, the
Joint Book Managers, any Affiliate of the foregoing or any indemnitee hereunder
(including, without limitation, 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 Borrower, 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 the
Borrower pursuant to the terms of this Agreement or any other Loan Document).
"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 Borrower 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 Borrower 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 12.2.1.
"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
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(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
Borrower; (c) transactions between the Borrower and one or more Wholly-Owned
Subsidiaries of the Borrower; and (d) transactions between (i) any
non-Wholly-Owned Subsidiary of the Borrower, any Affiliate of the Borrower
(other than Wholly-Owned Subsidiaries) or any Joint Venture in which the
Borrower or any of its Subsidiaries is a Venturer, on the one hand and (ii) the
Borrower or any Wholly-Owned Subsidiary of the Borrower, on the other hand,
where the net benefit derived from such transaction is derived by the Borrower
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 Borrower 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 Borrower 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.
"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 Borrower 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 Borrower, (b) any and all
Indebtedness of the Borrower 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 and as
defined in the 5-Year Revolving Credit Agreement and (ii) Indebtedness of any
Subsidiary of the Borrower owing to the Borrower or any of such Foreign
Subsidiary 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.
"Purchasers" is defined in Section 12.3.1.
"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.
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"Receivable(s)" means and includes all of the Borrower's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Borrower 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.
"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 Borrower, 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 12.3.3.
"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.
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"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 Commitments, Lenders the Commitment Percentages of which aggregate greater
than fifty percent (50%); and (b) at any time after the termination of the
Commitments (including as a result of conversion of the Loans to term loans
pursuant to Section 2.2.2), Lenders whose Aggregate Outstandings aggregate
greater than fifty percent (50%) of the Aggregate Outstandings of all Lenders.
"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, 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 Borrower now or
hereafter outstanding, except a dividend payable solely in the Borrower'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 Borrower 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 Borrower) of other equity interests of the
Borrower (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 Borrower, 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 Loans" means, with respect to a Lender, such Lender's
loan made available to the Borrower pursuant to Section 2.1.
"Revolving Loan Termination Date" means June 27, 2001, or any
subsequent date to which the Revolving Loan Termination Date has been extended
pursuant to the terms of Section 2.2.2.
"Rules" is defined in Section 3.1.
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"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"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 Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which exceeds any of the following
thresholds: (a) such Property represents more than 25% of the consolidated
assets of the Borrower and its Subsidiaries as would be shown in the
consolidated financial statements of the Borrower 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 Borrower 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 Borrower and
its Subsidiaries as reflected in the financial statements referred to in clause
(a) above.
"Syndication Agent" means Chase in its capacity as syndication agent
for the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Syndication Agent appointed pursuant to Article X.
"Termination Date" means the Commitment Termination Date, or if the
Borrower shall have converted the Advances hereunder to a term loan pursuant to
Section 2.2.2, the Converted Loan Termination Date.
"Total Debt" means, as of the end of any fiscal quarter of the
Borrower, all Indebtedness of the Borrower and its Subsidiaries as at such date,
determined on a consolidated basis.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate 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.
"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
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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.
ARTICLE II
THE CREDITS
2.1. Commitments. From and including the date of this Agreement and
prior to the earlier of the Conversion Date and the Commitment Termination Date,
each Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make Revolving Credit Loans to the Borrower from time to time so
long as after giving effect thereto and to any concurrent repayment of Loans (i)
the Available Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Outstandings of all Lenders do not exceed the Aggregate
Commitments. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Revolving Credit Loans at any time prior to the earlier of
the Conversion Date and the Commitment Termination Date. The Revolving Credit
Loans may be Floating Rate Loans or Eurodollar Loans, or a combination thereof
selected in accordance with Section 2.4 and 2.8.
2.2. Extension of Revolving Loan Termination Date; Conversion to Term
Loan.
2.2.1. Extension of Revolving Loan Termination Date. The Commitments to
lend hereunder shall expire on the earlier of the Conversion Date and the
Commitment Termination Date. Within the period beginning 59 days and ending 30
days before the then effective Revolving Loan Termination Date, the Borrower may
request in writing that the Revolving Loan Termination Date be extended for an
additional period of 364 days, including the then effective Revolving Loan
Termination Date as one of the days in the calculation of days elapsed. Within
20 days after such request (such 20th day being the "CONSENT DATE"), each Lender
may, in its sole discretion, agree to such extension to a new Revolving Loan
Termination Date not more than 364 days following such Consent Date by giving
written notice of such agreement to the Borrower and the Administrative Agent
(and the failure to provide such notice shall be deemed to be a decision not to
extend). The Commitment of each Lender that declines to extend the then
effective Revolving Loan Termination Date may, at the option of the Borrower, be
replaced in accordance with Section 12.3.1 (but only to the extent a replacement
Lender is then available), or the Aggregate Commitment shall be reduced. All
Obligations due to each Lender that declines to extend its Commitment under this
Section 2.2.1 shall be paid in full to the Administrative Agent for the account
of each such Lender on the then effective Revolving Loan Termination Date
(without giving effect to any such requested extension thereto). The Required
Lenders and the Borrower must agree to any extension with respect to the
Revolving Loan Termination Date for any such extension to become effective.
2.2.2. Conversion to Term Loan. From and after the Closing Date up
until and including the Commitment Termination Date, at the Borrower's option
upon written notice (a "NOTICE TO CONVERT") to the Administrative Agent (who
shall promptly notify each of the Lenders), the Borrower may convert the then
outstanding aggregate principal amount of the Advances hereunder to a term loan.
The Notice to Convert shall expressly state the date on which such conversion
shall occur (such date being the "CONVERSION DATE") and shall be irrevocable
once given and shall constitute a representation and warranty by the Borrower
that the conditions contained in Section 4.2 have been satisfied as of the date
of such
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Notice to Convert and as of the Conversion Date. Upon delivery of such Notice to
Convert, (i) the Borrower's option to request extensions of the Revolving Loan
Termination Date under Section 2.2.1 above and to borrow and reborrow Revolving
Loans hereunder, shall terminate, (ii) the Aggregate Commitment shall be reduced
to zero, and (iii) the outstanding principal balance of all Loans hereunder
shall be due and payable on the Converted Loan Termination Date. All references
in this Agreement to Revolving Credit Loans or Loans shall include such Loans as
converted hereunder.
2.3. Repayment of Revolving Credit Loans; Evidence of Debt.
2.3.1. The Borrower 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
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 Borrower 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 2.9.
2.3.2. Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing Indebtedness of the Borrower 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.
2.3.3. 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 Borrower 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 Borrower in
respect of the Revolving Credit Loans and each Lender's share thereof.
2.3.4. The books and records of the Administrative Agent and of each Lender
maintained pursuant to Sections 2.3.2 and 2.3.3 shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower 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 Borrower to repay (with applicable interest) the Revolving Credit Loans made
to the Borrower by such Lender in accordance with the terms of this Agreement.
2.3.5. 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 Borrower 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 promissory note and interest thereon shall at all times
(including, if requested, after assignment pursuant to Section 12.3) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
2.4. Procedures for Revolving Credit Borrowing. The Borrower may borrow
under the Commitments from time to time prior to the Commitment Termination Date
on any Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 11:00 a.m., Detroit time) (a) three Business Days prior to the
requested
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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 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 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 Borrower, 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
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 13.1 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 Borrower 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.
2.5. Termination or Reduction of Commitment. Prior to the Conversion
Date, the Borrower may permanently reduce the Aggregate 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 Commitments may not be reduced below the aggregate principal
amount of the outstanding Revolving Credit Loans. In addition, all accrued
facility fees shall be payable on the effective date of any termination of the
Commitments (other than as a result of a conversion pursuant to Section 2.2.2).
2.6. Facility, Utilization and Agent Fees. (a) The Borrower agrees to pay
to the Administrative Agent for the account of each Lender a facility fee at
0.10% per annum, (i) prior to the Conversion Date on the amount of such Lender's
Commitment, whether used or unused, and (ii) from and after the Conversion Date,
on the average daily aggregate principal amount of all Loans, payable from and
including the Effective Date to but excluding the Termination Date, payable on
each Payment Date hereafter and on the Termination Date.
(b) At all times from and after the Conversion Date and if, on any date
prior to the Conversion Date, the average daily Combined Utilized Amount exceeds
fifty percent (50%) of the Combined Commitment then in effect on such date, the
Borrower will pay to the Administrative Agent for the ratable benefit of the
Lenders a utilization fee of 0.125% per annum on the Aggregate Outstandings. The
accrued fees owing pursuant to this Section 2.6 shall be payable on each Payment
Date hereafter and on the Termination Date.
(c) The Borrower 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 Borrower and the Administrative Agent and between the Borrower
and the Syndication Agent, including pursuant to those separate fee letters
dated May 25, 2000.
2.7. Optional and Mandatory Principal Payments on All Loans.
2.7.1. The Borrower 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
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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.
2.7.2. The 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 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 Loans shall be in an
aggregate principal amount of which the U.S. Dollar Equivalent is at least
$5,000,000 or any integral multiple of $1,000,000 in excess thereof, or such
lesser principal amount as may equal the outstanding Eurodollar Loans.
2.7.3. If at any time, for any reason, the Aggregate Outstandings of all
Lenders exceed the Aggregate Commitments then in effect, (a) the Borrower shall,
without notice or demand, immediately prepay the Revolving Credit Loans such
that the aggregate principal amount of Revolving Credit Loans so prepaid at
least equals the amount of such excess.
2.7.4. Each prepayment and conversion pursuant to this Section 2.7 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.
2.7.5. Prepayments pursuant to this Section 2.7 shall be applied first to
prepay Floating Rate Loans and second to prepay Eurodollar Loans then
outstanding in such order as the Borrower may direct.
2.7.6. All amounts prepaid may be reborrowed and successively repaid and
reborrowed, subject to the other terms and conditions in this Agreement.
2.8. Conversion and Continuation of Outstanding 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 Borrower 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
Borrower may elect from time to time to convert all or any part of an Advance of
any Type into any other Type or Types of 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 Borrower 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 Advance which is to be
converted or continued, and
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(iii) the amounts and Type(s) of Advance(s) into which such 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.
2.9. 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 Eurodollar Loan into a Floating Rate Loan pursuant to Section
2.8 to but excluding the date it becomes due or is converted into a Eurodollar
Loan pursuant to Section 2.8 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.
(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
Eurodollar Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar
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).
2.10. 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 Eurodollar
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 Eurodollar Advance. No Interest Period may end after the
Termination Date.
2.11. 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 Borrower (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 Eurodollar
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 Borrower (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 Eurodollar Advance shall bear interest for the remainder of the
applicable Interest Period at the rate
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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 Borrower (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.
2.12. Pro Rata Payment, Method of Payment. Each borrowing of Revolving
Credit Loans by the Borrower from the Lenders shall be made Pro Rata according
to the Commitment Percentage of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower 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 2.6. Any reduction by the Borrower of the Commitments of the Lenders
shall be allocated by the Administrative Agent among the Lenders pro rata
according to the Commitment Percentages of the Lenders. Each payment (other than
any optional prepayment) by the Borrower 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. Each optional prepayment by the Borrower 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 Borrower
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 XIII,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by 1:00 p.m. (Detroit time)
on the date. 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 XIII 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 Borrower maintained with Bank
One for each payment of principal, interest and fees as it becomes due
hereunder.
2.13. Telephonic Notices. The 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. The 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.
2.14. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Commitment reduction notice, borrowing
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 Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.15. 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
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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
Borrower, designate a Lending Installation through which Loans will be made by
it and for whose account Loan payments are to be made.
2.16. Non-Receipt of Funds by the Administrative Agent. Unless the 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 of (a)
in the case of a Lender, the proceeds of a Loan or (b) in the case of the
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.
2.17. 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
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 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,
(a) subjects any Lender or any applicable Lending Installation to any tax,
duty, charge or withholding on or from payments due from the 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
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(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 Eurodollar 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 or its 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 Borrower 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 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 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 that (i) deposits of a type and maturity appropriate to match
fund Eurodollar Loans are not available or (ii) the interest rate applicable to
a 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.
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3.4. Funding Indemnification. If any repayment of a Eurodollar 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 Eurodollar Advance or if any Eurodollar
Advance is not made, continued or prepaid on the date specified by the Borrower
for any reason other than default by the Lenders, the 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 Eurodollar 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 to reduce any liability of the 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 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 Borrower as determined by such Lender and
shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such sections in
connection with a Eurodollar 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 Borrower of such written
statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.6
shall survive payment of the Obligations and termination of this Agreement. The
Borrower 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 Borrower under
this Agreement and any promissory note, if any, 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 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 or any Lender
hereunder or under any promissory note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Agreement provided, however, that the
Borrower 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. Whenever any Non-Excluded Taxes are payable by the Borrower,
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as promptly as possible thereafter the 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 the Borrower
showing payment thereof. If the 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, the 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 Borrower under this Agreement to such Lender,
deliver to the Borrower 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 the Borrower (within
the meaning of Section 871(h)(3)(B) of the Code), or (iii) a controlled
foreign corporation related to the 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 Borrower 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 Borrower
provided that such Lender is legally entitled to complete such form;
(c) obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent; 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 Borrower and the Administrative Agent;
provided, however, that the Borrower may rely upon such forms provided to
the Borrower for all periods prior to the occurrence of such an event. Each
Person that shall become a Lender or a Participant pursuant to Section 12.2
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.
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3.6.3. 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
Borrower 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.
3.6.4. In cases in which the 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, the 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 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 Borrower 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 Borrower to
the Replaced Lender pursuant to Section 3.4, if any, if the Borrower 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 Borrower 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 Borrower, 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 9.7) 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 the Borrower, any Agent or any other
Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advances. The Lenders shall not be required to make the initial
Loans unless the Borrower shall have furnished to the Agents, with sufficient
copies for the Lenders, each of the following:
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(a) Copies of the articles of incorporation or similar organizational
documents of the Borrower, together with all amendments thereto, and a
certificate of good standing or similar governmental evidence of
corporate existence, all certified by the Secretary or an Assistant
Secretary of the Borrower.
(b) Copies, certified by the Secretary or an Assistant Secretary or other
duly authorized representative of the 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 the Borrower is a party.
(c) An incumbency certificate, executed by the Secretary or an Assistant
Secretary of the Borrower, which shall identify by name and title and
bear the signature of the officers of the 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 the Borrower.
(d) A certificate, signed by any Designated Financial Officer of the
Borrower, stating that on the date of the initial funding hereunder all
of the representations in this Agreement made by the Borrower are true
and correct and no Default or Unmatured Default has occurred and is
continuing.
(e) Written opinions of counsel to the Borrower, addressed to the Lenders
in substantially the form of Exhibit C hereto.
(f) [Reserved.]
(g) Written money transfer instructions, in substantially the form of
Exhibit D 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 Borrower 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 Borrower which shall be
consistent with the information included in the Bank Book.
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(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 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 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 Borrower 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 5 hereto, the obligor on all outstanding public Indebtedness
of the Borrower and its Subsidiaries is the Borrower, (ii) other than
with respect to the outstanding guaranteed Subsidiary subordinated
Indebtedness, none of the Borrower's Subsidiaries shall be co-obligors
or guarantors of the Borrower's Indebtedness unless such Subsidiaries
similarly become co-obligors or guarantors of the Indebtedness
hereunder and under the 5-Year Revolving Credit Agreement and (iii) all
such outstanding subordinated Indebtedness is subordinated to the
Indebtedness hereunder and under the 5-Year Revolving 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 F to this Agreement.
4.2. Each Advance. The Lenders shall not be required to make any Loans
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 shall be
satisfactory to the Administrative Agent and the Syndication Agent and their
counsel.
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Each borrowing notice with respect to each borrowing by the Borrower
hereunder shall constitute a representation and warranty by the Borrower that
the conditions contained in Sections 4.1(a) and (b) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower 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.
5.2. Authorization and Validity. The 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 the Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which it is a party constitute
legal, valid and binding obligations of the Borrower enforceable against the
Borrower 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 Borrower 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 Borrower or any of its Subsidiaries or the Borrower'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 Borrower 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 Borrower 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 Borrower and its Subsidiaries included
in the Bank Book heretofore delivered to the Lenders fairly present the pro
forma consolidated financial condition of the Borrower 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
Borrower contained in the
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Bank Book (the "PROJECTIONS") are based on estimates and assumptions considered
reasonable by the Borrower's management and the best information available to
the Borrower's management at the time made, and use information consistent with
the plans of the Borrower.
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 Borrower and
its Subsidiaries which has had or could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Borrower 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 Borrower 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 Borrower
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
2 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 Borrower 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 Borrower
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 3 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
Borrower or other Subsidiaries. As of the Effective Date, Schedule 3 hereto
contains an accurate list of all of the presently existing Significant
Subsidiaries of the Borrower, setting forth their respective jurisdictions of
incorporation and the percentage of their respective Capital Stock owned by the
Borrower 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 4
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 Borrower 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.
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5.10. Accuracy of Information. No written information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agents or to any
Lender in connection with the negotiation of, or compliance 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 Borrower and its Subsidiaries which are subject to any limitation on sale,
pledge or other restriction hereunder.
5.12. Material Agreements. Neither the Borrower 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 Borrower 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 Borrower 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 Borrower 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 Borrower 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.
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):
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6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting enabling it to provide consolidated financial
statements for the Borrower 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 Borrower'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 Borrower's fiscal years (including, for Arvin and
Meritor, for their fiscal quarters ending June 30, 2000), for the Borrower
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 B 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;
(iv) if requested by the Administrative Agent, within 180 days after
the close of each fiscal year, financial information regarding the
Borrower'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
Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by an Authorized Officer of the Borrower,
describing said Reportable Event and the action which the Borrower proposes
to take with respect thereto;
(vi) promptly upon the furnishing thereof to the shareholders of the
Borrower, 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 Borrower 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.
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Notwithstanding anything to the contrary, the Borrower 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 Borrower'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 Borrower 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 Borrower's
general corporate purposes, including to finance the Borrower's and its
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 Borrower will, and will cause each of its
Subsidiaries to, give notice (not later than five days after an Authorized
Officer of the 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 Borrower 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 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 Borrower and each other
Subsidiary; provided that (except as otherwise provided herein) the Borrower
shall not be required to preserve any such right or franchise, or the existence
of any Subsidiary, if the discontinuance thereof could not reasonably be
expected to have a Material Adverse Effect.
6.5. Taxes. The Borrower 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 Borrower will, and will cause each Subsidiary to,
maintain with insurance companies satisfactory to the Borrower insurance in such
amounts and covering such risks as the Borrower's management deems consistent
with sound business practice, and the Borrower will furnish to any Lender upon
reasonable request full information as to the insurance carried.
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6.7. Compliance with Laws. The Borrower 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 Borrower 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 Borrower 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 Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower 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 Borrower 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 Borrower and its Subsidiaries at such time.
6.11. Merger. The Borrower 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 Borrower
(provided that the Borrower shall be the surviving corporation) or with any
one or more other Subsidiaries; and
(b) the Borrower may merge or consolidate with any other entity
provided that the Borrower 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 Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person (other than the Borrower or a Wholly-Owned Subsidiary), except:
(i) any Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to the Borrower or another Subsidiary;
(ii) the Borrower 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 Borrower and its Subsidiaries may sell, lease, transfer or
otherwise dispose of inventory and equipment in the ordinary course of
business;
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(iv) during the 18-month period after Closing Date and in connection
with the Borrower's integration of the Arvin and Meritor businesses, the
Borrower 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 Borrower to the Administrative
Agent identifying such transaction as an integration transaction pursuant to
the terms of this clause (iv);
(v) the Borrower 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 Borrower 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 Borrower 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.
6.13. Conduct of Business; Investments and Acquisitions. Neither the
Borrower nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Borrower 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 Borrower 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 Borrower 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
Borrower 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
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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 Borrower or the
Subsidiaries;
(v) lessors' interests under Capitalized Leases;
(vi) Liens in favor of the Borrower 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 Borrower 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
Borrower or any Subsidiary;
(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 Borrower 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 and arising under the
5-Year Revolving 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
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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 Borrower 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 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 Borrower
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 Borrower's or such Subsidiary's business and upon fair and reasonable
terms (taken as a whole) not materially less favorable to the Borrower or the
Borrower and its Subsidiaries (taken as a whole) than would occur in a
comparable arms-length transaction.
6.16. Contingent Obligations. The Borrower 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 Borrower or such Subsidiary, as
applicable, would not result in a violation of Sections 6.10 or 6.20.
6.17. Sale and Leaseback. The Borrower 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 Borrower 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 Borrower 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 Borrower 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
Borrower 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. Guarantees. The Borrower will not permit any of its Subsidiaries to
become co-obligors or guarantors of any Indebtedness or Off-Balance Sheet
Liabilities of the Borrower unless such Subsidiaries similarly become
co-obligors or guarantors of the Indebtedness hereunder and under the 5-Year
Revolving Credit Agreement.
6.20. Debt Ratio. The Borrower shall not permit its Debt Ratio, calculated
on a consolidated basis for the Borrower and its Subsidiaries, to exceed 3.25 to
1.0 on the last day of any fiscal quarter.
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6.21. Financial Contracts. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any Financial Contracts other than
Financial Contracts entered into by the Borrower or its Subsidiaries pursuant to
which the Borrower 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 Borrower or its Subsidiaries to the Lenders or the Agents in
any Loan Document 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.
7.1.3. The breach by the 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 the 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 Borrower has actual knowledge thereof and (b) the
receipt of written notice from any Agent or the Required Lenders.
7.1.5. Failure of the Borrower or any of its Subsidiaries to pay (i)
any Indebtedness under the 5-Year Revolving 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 Borrower or any of
its Subsidiaries in the performance of any other term, provision or condition
contained in the 5-Year Revolving 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 5-Year Revolving 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 5-Year Revolving 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 Borrower, any of its Significant Subsidiaries or any
Subsidiary which is a "Foreign Subsidiary Borrower" under and as defined in the
5-Year Revolving Credit Agreement 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,
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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
Borrower, any Significant Subsidiary or any "Foreign Subsidiary Borrower" under
and as defined in the 5-Year Revolving Credit Agreement or for any substantial
part of its Property, or a proceeding described in Section 7.1.6(iv) shall be
instituted against the Borrower, any Significant Subsidiary or any such 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 Borrower, any Significant Subsidiary
or any "Foreign Subsidiary Borrower" under and as defined in the 5-Year
Revolving Credit Agreement taken as a whole.
7.1.9. The Borrower or any of its Subsidiaries 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 Borrower and/or any Subsidiary exceeds
$35,000,000, which are not stayed on appeal or otherwise being appropriately
contested in good faith.
7.1.10. The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the release by the Borrower 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 guaranty entered into by the Borrower of the indebtedness
of certain of its Subsidiaries under the 5-Year Revolving Credit Agreement 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 such 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, the obligations of the Lenders to make Loans hereunder shall
automatically terminate and the Obligations shall immediately
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become due and payable without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly waives and without any election
or action on the part of any Agent or Lender.
(b) If any Default occurs and is continuing (other than a Default
described in Section 7.1.6 or 7.1.7), 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
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
Borrower hereby expressly waives.
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 Borrower 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
Borrower 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) and (d) below shall be deemed to
include all of the Lenders):
(a) Except as provided in Section 2.2, extend the final maturity of any
Loan 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.
(c) Other than as set forth in Section 2.2, extend the Commitment
Termination Date, the Converted Loan Termination Date, the Revolving Loan
Termination Date or the Termination Date, or reduce the amount or extend the
payment date for, the mandatory payments required under Section 2.7, or increase
the amount of the Commitment of any Lender hereunder, or permit the Borrower to
assign its rights under this Agreement.
(d) Amend this Section 8.2.1.
8.2.2. Notwithstanding the foregoing, with respect to any Schedules
other than Schedule 2, at any time at the request of the Administrative Agent
and at such additional times as the Borrower determines, the Borrower 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.
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8.2.3. 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 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 11.4 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 12.3.2 without obtaining the consent
of any other party to this Agreement.
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 Borrower 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
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Loan
Documents and the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. 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 Borrower,
together with interest and penalties, if any.
9.4. 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.
9.5. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, 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
the Borrower and any of the Agents and any other agreements of any of the
Borrower with any Agent which survive the execution of the Loan Documents.
9.6. 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
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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.
9.7. Expenses; Indemnification. The Borrower 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 Borrower 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 Borrower 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 Borrower
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 9.3 hereof. The Borrower 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 Borrower under this
Section shall survive the termination of this Agreement.
9.8. 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.
9.9. 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.
9.10. 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.
9.11. Nonliability of Lenders. The relationship between the Borrower
and the Lenders and the Agents shall be solely that of borrower and lender. No
Agent or Lender shall have any fiduciary responsibilities to the Borrower. No
Agent or Lender undertakes any responsibility to the Borrower to review or
inform the
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Borrower of any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that no Agent or Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by the 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 the Borrower hereby waives,
releases and agrees not to sue for, any special, indirect or consequential
damages suffered by the Borrower in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
9.12. Confidentiality. (a) The Borrower 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 Borrower and its Subsidiaries whether such information was
provided by the Borrower or prepared or obtained by any Agent, any Joint Book
Manager or any Lender, subject to the provisions of this Section 9.13.
(b) Any Lender may disclose to any one of its affiliates or (with the
prior consent of the Borrower, 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 Borrower 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 9.13(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 Borrower 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 Borrower in connection with this
Agreement which is designated in writing as confidential by the Borrower, 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.
(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 Borrower's and its
Subsidiaries' condition which any Agent or Joint Book Manager may elect to
distribute, whether such information was provided by the Borrower or prepared or
obtained by the one or
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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.
9.13. 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 X
THE AGENTS
10.1. 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 X. 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 by reason of this Agreement or any other Loan Document and that each
Agent is merely acting as the representative of the Lenders 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,
(ii) is a "representative" of the Lenders 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 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 hereby
waives.
10.2. 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.
10.3. General Immunity. No Agent nor any of their respective directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for (a) any action taken or omitted to be taken 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".
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10.4. 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 upon 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 Borrower to such Agent at such time,
but is voluntarily furnished by the Borrower to such Agent (either in its
capacity as an Agent or in its individual capacity).
10.5. 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.
10.6. 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.
10.7. 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.
10.8. Agents' Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify (to the extent not reimbursed by the Borrower and
without limiting the obligation of the 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 Borrower for which such
Agent is entitled to reimbursement by the Borrower 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
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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 10.8
shall survive payment of the Obligations and termination of this Agreement.
10.9. 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 the 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.
10.10. 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
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.
10.11. 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 Borrower 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.
10.12. Successor Agents. Any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, 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. 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 Borrower 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 Borrower 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 Borrower 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 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 X 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.
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10.13. 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 10.11, 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 XI
SETOFF; ADJUSTMENTS AMONG LENDERS; APPOINTED LENDERS
11.1. 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 the Borrower
may be offset and applied toward the payment of the Obligations owing to such
Lender by the Borrower.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has a payment made to it upon its Loans to the Borrower (other than payments
received pursuant to Section 3.1, 3.2, 3.4, 3.6 or 9.7) in a greater proportion
than that received by any other Lender from the Borrower or its Loans, such
Lender agrees, promptly upon demand, to purchase a portion of the Loans to the
Borrower held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans to the 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.
11.3. Application of Payments. Subject to the provisions of Section
2.17, 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 11.3, 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:
(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 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;
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(iv) fourth, to pay interest due in respect of Loans;
(v) fifth, to the ratable payment or prepayment of principal
outstanding on Loans;
(vi) sixth, to the ratable payment of all other Obligations;
and
(vii) seventh, to the Borrower.
Unless otherwise designated (which designation shall only be applicable
prior to the occurrence of a Default) by the Borrower, all principal payments in
respect of Loans shall be applied first, to repay outstanding Floating Rate
Loans, and then to repay outstanding Eurodollar Loans with those Eurodollar
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 11.3 and the related provisions of this Agreement are set forth
solely to determine the rights and priorities of the Agents and the Lenders as
among themselves. The order of priority set forth in clauses (iii) through (vi)
of this Section 11.3 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 the
Borrower, or any other Person. The order of priority set forth in clauses (i)
and (ii) of this Section 11.3 may be changed only with the prior written consent
of the Agents.
11.4. Appointed Lenders. (a) Subject to the terms and conditions set
forth in this Section 11.4(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 11.4(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 G 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 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 a
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 neither the Borrower nor any 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 Borrower
and 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 Borrower 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
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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 11.4 shall survive the termination of this Agreement.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower 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 12.3 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 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.
12.2. Participations.
12.2.1. 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 Borrower 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 Borrower 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.
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12.2.2. 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.
12.2.3. Benefit of Setoff; Increased Costs and Yield Protection. The
Borrower agrees that each Participant shall be deemed to have the right of
setoff provided in Section 11.1, 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 11.1, 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 11.1 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
11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. 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 E hereto (an "ASSIGNMENT") or in such other
form as may be agreed to by the parties thereto. The consent of the Borrower,
the Administrative Agent and the Syndication Agent 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 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 Borrower shall not be required. Such consent by
the Borrower 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
Borrower, or (ii) the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment).
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agents of a
notice of assignment, substantially in the form attached as Exhibit I to Exhibit
E hereto (a "NOTICE OF ASSIGNMENT"), together with any consents required by
Section 12.3.1, 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
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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 Borrower, 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 12.3.2, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that any requested promissory notes, if applicable, are issued to such
transferor Lender.
12.3.3. Register. The Administrative Agent, acting solely for this
purpose as the agent of the Borrower, shall maintain at its address referred to
in Section 13.1 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 Borrower, 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 Borrower or any Lender at any
reasonable time and from time upon reasonable prior notice.
12.4. Dissemination of Information. The 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 Borrower and its Subsidiaries provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.12.
12.5. 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 XIII
NOTICES
13.1. 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 the
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 Borrower. 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.
13.2. Change of Address. The Borrower, any Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
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ARTICLE XIV
COUNTERPARTS
14.1. 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
Borrower, the Agents and the Lenders.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
15.1. 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.
15.2. WAIVER OF JURY TRIAL. THE 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.
15.3. Submission To Jurisdiction; Waivers. The Borrower 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 Borrower, as the case may be, at the address specified
in Section 13.1, 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.
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15.4. Acknowledgments. The 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
the 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 Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agents
have executed this Agreement as of the date first above written.
BORROWER:
ARVINMERITOR, INC.
By:
Name:
Title:
Attention:
Phone:
Facsimile:
E-mail:
LENDERS:
BANK ONE, NA (Main Office Chicago) as
Administrative Agent 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:
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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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