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EXHIBIT 10.2
VENTURE HOLDINGS TRUST
CERTAIN BORROWING SUBSIDIARIES
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JULY 9, 1997
THE LENDERS PARTY HERETO,
NBD BANK, AS AGENT
BHF-BANK AKTIENGESELLSCHAFT, AS CO-AGENT
THE BANK OF NOVA SCOTIA, AS CO-AGENT
THE HUNTINGTON NATIONAL BANK, AS CO-AGENT
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II THE CREDITS 19
2.1 Revolving Credit Commitment of the Lenders 20
2.2 Facility Letters of Credit 21
2.3 Ratable Loans 26
2.4 Types of Advances 26
2.5 Revolving Credit Commitment Fees, Reductions in Aggregate
Revolving Credit Commitment 26
2.6 Minimum Amount of Each Advance 27
2.7 Principal Payment 27
2.8 Method of Selecting Types and Eurodollar Interest Periods
for New Advances 27
2.9 Conversion and Continuation of Outstanding Advances 27
2.10 Changes in Interest Rate, etc. 28
2.11 Rates Applicable After Default 28
2.12 Method of Payment 29
2.13 Notes Recordation; Telephonic Notices 29
2.14 Interest Payment Dates; Interest and Fee Basis 29
2.15 Notification of Advances, Interest Rates, Prepayments and
Revolving Credit Commitment Reductions 30
2.16 Lending Installations 30
2.17 Non-Receipt of Funds by the Agent 30
2.18 Mandatory Prepayment in the Event of a Change in Control 30
2.19 Obligations Joint and Several 31
2.20 Contribution Among Borrowers and Guarantors 32
2.21 Financial Condition of Borrowers 32
2.22 Collateral Security; Further Assistance 32
2.23 Liability of Grantor, Beneficiary or Trustee 33
2.24 Application of Payments with Respect to Defaulting Lenders 33
ARTICLE III CHANGE IN CIRCUMSTANCES 34
3.1 Yield Protection 34
3.2 Changes in Capital Adequacy Regulations 35
3.3 Availability of Types of Advances 35
3.4 Funding Indemnification 35
3.5 Alternative Lending Installation; Lender Statements;
Survival of Indemnity 35
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ARTICLE IV CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION 36
4.1 Effectiveness of Amendments 36
4.2 Each Advance 39
4.3 Withholding Tax Exemption 39
ARTICLE V REPRESENTATIONS AND WARRANTIES 40
5.1 Corporate Existence and Standing 40
5.2 Authorization and Validity 40
5.3 No Conflict; Government Consent 40
5.4 Financial Statements 40
5.5 Material Adverse Change 41
5.6 Taxes 41
5.7 Litigation and Contingent Obligations 41
5.8 Subsidiaries 41
5.9 ERISA 41
5.10 Accuracy of Information 41
5.11 Regulation U 42
5.12 Material Agreements 42
5.13 Compliance with Laws 42
5.14 Ownership of Properties 42
5.15 Plan Assets; Prohibited Transactions 42
5.16 Environmental Matters 42
5.17 Investment Company Act 42
5.18 Public Utility Holding Company Act 42
5.19 Subordinated Indebtedness 43
5.20 Post-Retirement Benefits 43
5.21 Insurance 43
5.22 Solvency 43
5.23 Labor Controversies 44
5.24 No Adverse Development 44
5.25 Burdensome Obligations 44
5.26 Payment of Wages 44
5.27 Intellectual Property 44
5.28 Other Representations 45
ARTICLE VI COVENANTS 45
6.1 Financial Reporting 47
6.2 Use of Proceeds 47
6.3 Notice of Default 47
6.4 Conduct of Business 47
6.5 Taxes 47
6.6 Insurance 48
6.7 Compliance with Laws 48
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6.8 Maintenance of Properties 48
6.9 Inspection 48
6.10 Dividends 48
6.11 Indebtedness 49
6.12 Merger 49
6.13 Sale of Assets 50
6.14 Investment and Acquisitions 51
6.15 Liens 52
6.16 Affiliates 53
6.17 Modification and Prepayment of Indebtedness 53
6.18 Sale of Accounts 53
6.19 Contingent Obligations and Guarantees 53
6.20 Financial Contracts 54
6.21 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries 54
6.22 Additional Covenants re Indebtedness 54
6.23 Nature of Business 55
6.24 Permitted Payments 55
6.25 Consolidated Net Worth 55
6.26 Interest Coverage Ratio 55
6.27 Fixed Charge Coverage Ratio 56
6.28 Leverage Ratio 56
ARTICLE VII DEFAULTS 56
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 59
8.1 Acceleration 59
8.2 Amendments 60
8.3 Preservation of Rights 61
ARTICLE IX GENERAL PROVISIONS 61
9.1 Survival of Representations 61
9.2 Governmental Regulation 61
9.3 Taxes 61
9.4 Headings 62
9.5 Entire Agreement 62
9.6 Several Obligations; Benefits of this Agreement 62
9.7 Expenses; Indemnification 62
9.8 Number of Documents 63
9.9 Accounting 63
9.10 Severability of Provisions 63
9.11 Nonliability of Lenders 63
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9.12 Nonreliance 64
9.13 Confidentiality 64
9.14 Limitation of Liabilities 64
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ARTICLE X THE AGENT 65
10.1 Appointment; Nature of Relationship 65
10.2 Powers 65
10.3 General Immunity 65
10.4 No Responsibility for Loans, Recitals, etc. 65
10.5 Action on Instructions of Lenders 66
10.6 Employment of Agents and Counsel 66
10.7 Reliance on Documents; Counsel 66
10.8 Agent's Reimbursement and Indemnification 66
10.9 Notice of Default 67
10.10 Rights as Lender 67
10.11 Lender Credit Decision 67
10.12 Successor Agent 67
10.13 Agent's Fee 68
10.14 Collateral Management 68
10.15 Right to Indemnity 68
10.16 Co-Agents 68
ARTICLE XI SETOFF; RATABLE PAYMENTS 69
11.1 Setoff 69
11.2 Ratable Payments 69
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION 69
12.1 Successors and Assigns 69
12.2 Participations 70
12.3 Assignments 70
12.4 Dissemination of Information 71
12.5 Tax Treatment 71
ARTICLE XIII NOTICES 72
13.1 Notices 72
13.2 Change of Address 72
ARTICLE XIV CHOICE OF LAW, CONSENT TO JURISDICTION,
WAIVER OF JURY TRIAL 72
14.1 Choice of Law 72
14.2 Consent to Jurisdiction 72
14.3 Waiver of Jury Trial 73
ARTICLE XV THE AMENDMENT AND RESTATEMENT 73
15.1 Relationship of this Agreement to the 1996 Credit Agreement 73
15.2 Execution by Guarantors 73
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15.3 References 74
ARTICLE XVI COUNTERPARTS 74
EXHIBITS
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EXHIBIT A BORROWING BASE CERTIFICATE
EXHIBIT B GUARANTY
EXHIBITS C-1 AND C-2 PLEDGE AGREEMENTS
EXHIBIT D REVOLVING CREDIT NOTE
EXHIBIT E SECURITY AGREEMENTS
EXHIBIT F LEGAL OPINIONS
EXHIBIT G TRANSFER AND FUNDING INSTRUCTIONS
EXHIBIT H COMPLIANCE CERTIFICATE
EXHIBIT I ASSIGNMENT AGREEMENT
EXHIBIT J NOTICE OF ASSIGNMENT
SCHEDULES
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SCHEDULE 1.1-A PRICING GRID
SCHEDULE 5.6 TAXES
SCHEDULE 5.7 LITIGATION
SCHEDULE 5.8 SUBSIDIARIES
SCHEDULE 5.14 OWNERSHIP OF PROPERTIES EXCEPTIONS
SCHEDULE 5.19 SUPPLEMENTAL INDENTURES
SCHEDULE 5.26 PAYMENT OF WAGES
SCHEDULE 5.27 INTELLECTUAL PROPERTY
SCHEDULE 6.11 PERMITTED INDEBTEDNESS
SCHEDULE 6.14 PERMITTED INVESTMENTS
SCHEDULE 6.15 PERMITTED LIENS
SCHEDULE 6.19 CONTINGENT OBLIGATIONS
SCHEDULE 6.21 SUBSIDIARY DIVIDEND RESTRICTIONS
SCHEDULE 6.22 ADDITIONAL COVENANT EXCLUSION
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AMENDED AND RESTATED CREDIT AGREEMENT
This Agreement, dated as of July 9, 1997, is among the Trust, the
Borrowing Subsidiaries, the Lenders, the Co-Agents and NBD Bank, as Agent. The
parties hereto agree that the 1996 Credit Agreement (as defined herein) is
hereby amended and restated to read in its entirety as set forth in this
Agreement.
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Trust 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.
"Advance" means an advance hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans or Facility
Letters of Credit made on the same Borrowing Date (or date of conversion or
continuation) by the Lenders to any Borrower of the same Type and, in the case
of Eurodollar Advances, for the same Eurodollar Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means NBD Bank in its capacity as agent for the Lenders pursuant
to Article X, and not in its individual capacity as a Lender, and any successor
Agent appointed pursuant to Article X.
"Aggregate Revolving Credit Commitment" means the aggregate of the
Revolving Credit Commitments of all the Lenders, not to exceed $200,000,000, as
reduced from time to time pursuant to the terms hereof.
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"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Sections 5.4 and
subject to Section 9.9.
"Alternate Prime Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" is defined on Schedule 1.1-A.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means Larry J. Winget and, subject to the revocation
by either Larry J. Winget or the Special Advisor of the Trust, Michael G.
Torakis or James E. Butler, or any other person designated in writing by the
Special Advisor of the Trust, Larry J. Winget or Michael G. Torakis, or, with
respect to any Borrowing Notice or Conversion/Continuation Notice, the
controller or assistant controller of any Borrower, in each case acting singly.
"Beneficiary" means (i) any beneficiary of the Trust while it is a trust
or (ii) any shareholder of a successor S corporation to the Trust after a Trust
Contribution.
"Borrowers" means, collectively, (i) the Trust and the Borrowing
Subsidiaries and (ii) any future Subsidiary of the Trust which notifies the
Agent of its irrevocable election to become a Borrower for all purposes under
this Agreement, in which case, if such Subsidiary is a Guarantor, such
Guarantor status shall terminate .
"Borrowing Base" means, as of any date, the sum of (a) an amount equal to
85% of the amount of Eligible Accounts Receivable, plus (b) an amount equal to
50% of the amount of Eligible Inventory, plus (c) an amount equal to 50% of the
amount of Eligible Unbilled Receivables.
"Borrowing Base Certificate" for any date means an appropriately completed
report as of such date and substantially in the form of Exhibit A hereto,
certified as true and correct as of such date by an Authorized Officer of each
Borrower.
"Borrowing Date" means a date on which an Advance is made hereunder.
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"Borrowing Notice" is defined in Section 2.8.
"Borrowing Subsidiaries" means Vemco, Inc., Venture Industries
Corporation, Venture Mold & Engineering Corporation, Venture Leasing Company,
Vemco Leasing, Inc., Venture Holdings Corporation and Venture Service Company
and any Subsidiary of the Trust which becomes a Borrower.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Detroit for the conduct of substantially all of their
commercial lending activities.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Trust and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents or interests in (however
designated) corporate stock or other equity participations or ownership
interests or equity participations, including without limitation trust
beneficiary interests.
"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.
"Change in Control" means (a) the Trust shall cease to own, free and
clear of all Liens or other encumbrances, 100% of the Capital Stock of each
Borrowing Subsidiary and each Guarantor, either directly or through another
Borrowing Subsidiary or Guarantor, (b) Larry J. Winget, his estate, and/or his
wife, their children (and spouses) and grandchildren (and spouses), and/or a
trust or a pass-through entity controlled by one or more of the foregoing,
shall cease to own, free and clear of all Liens or other encumbrances, at least
51% of the beneficial interests of the Trust or shall cease to have the sole
ability to direct the actions of the Trust; provided, however, that as a result
of the death or disability of Larry J. Winget, the Successor Special Advisor
Group, but no other Person,
AMENDED AND RESTATED CREDIT AGREEMENT
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may also be in control of the Trust, or (c) a Change in Control as defined in
the Indenture under which the 1997 Senior Unsecured Notes are issued.
"Change in Control Notice" is defined in Section 2.18.
"Co-Agents" means BHF-Bank Aktiengesellschaft, The Bank of Nova Scotia and
The Huntington National Bank.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all Property of the Borrowers and of the Guarantors.
"Collateral Documents" means, collectively, the Security Agreements, the
Mortgages, the Pledge Agreements and all other agreements granting a Lien in
favor of the Agent for the benefit of the Lenders, as any of the foregoing may
be amended or modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Condemnation" is defined in Section 7.8.
"Consolidated" or "consolidated" shall mean, when used with reference to
any financial term in this Agreement, the aggregate for two or more persons of
the amounts signified by such term for all such persons determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"Consolidated Current Assets" means the consolidated current assets of the
Trust and its Subsidiaries determined in accordance with Agreement Accounting
Principles.
"Consolidated Current Liabilities" means the consolidated current
liabilities of the Trust and its Subsidiaries determined in accordance with
Agreement Accounting Principles.
"Consolidated Interest Expense" means, for any period, total interest and
related expense owed to Persons other than the Borrowers and the Guarantors
(including, without limitation or duplication, that portion of any Capitalized
Lease Obligation attributable to interest expense in conformity with Agreement
Accounting Principles, amortization of debt discount, all capitalized interest,
the interest portion of any deferred payment obligations, all commissions,
discounts and other fees and charges owed with respect to letter of credit and
bankers acceptance financing, the net costs and net payments under any interest
rate hedging, cap or similar agreement or arrangement, agency fees and
capitalized transaction costs allocated to interest expense) paid, payable or
accrued
AMENDED AND RESTATED CREDIT AGREEMENT
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during such period, without duplication for any other period, with respect to
all outstanding Indebtedness of the Trust and its Subsidiaries, all as
determined for the Trust and its Subsidiaries on a consolidated basis for such
period in accordance with Agreement Accounting Principles.
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Trust and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period, determined in accordance with Agreement
Accounting Principles; provided that in determining Consolidated Net Income
there shall be excluded, without duplication: (a) the income of any Person
(other than a Subsidiary of the Trust) in which any Person other than the Trust
or any of its Subsidiaries has a joint interest or partnership interest, except
to the extent of the amount of dividends or other distributions actually paid
to the Trust or any of its Subsidiaries by such Person during such period, (b)
the income of any Person accrued prior to the date it becomes a Subsidiary of
the Trust or is merged into or consolidated with the Trust or any of its
Subsidiaries or that Person's assets are acquired by the Trust or any of its
Subsidiaries, (c) the proceeds of any insurance policy, other than business
interruption insurance, (d) gains and losses from the sale, exchange, transfer
or other disposition of property or assets not in the ordinary course of
business of the Trust and its Subsidiaries, and related tax effects in
accordance with Agreement Accounting Principles, (e) any extraordinary or
non-recurring gains and losses, and related tax effects in accordance with
Agreement Accounting Principles, (f) any other income not from the continuing
operations of the Trust or its Subsidiaries, and related tax effects in
accordance with Agreement Accounting Principles, (g) the income of any
Subsidiary of the Trust to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or of any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, and (h) Permitted Tax Distributions
to the extent not already deducted.
"Consolidated Net Worth" means the aggregate amount of trust equity (i.e.,
consolidated trust principal) and common shareholders' equity as determined
from a consolidated balance sheet of the Trust and its Subsidiaries, prepared
in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means, without duplication, 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 or is contingently 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, including, without limitation,
any comfort letter, operating agreement or take-or-pay contract.
"Conversion/Continuation Notice" is defined in Section 2.9.
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"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Trust or any of its Subsidiaries, are treated as a
single employer under Section 414(b) of the Code.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (i) on any Borrowing Date fails
to make available to the Agent such Lender's Loans required to be made to the
Borrowers on such Borrowing Date, (ii) shall not have made a payment to the
Agent required under Section 2.1(c) or (iii) shall not have made a payment to
the Issuer pursuant to Section 2.2.5(b). Once a Lender becomes a Defaulting
Lender, such Lender shall continue as a Defaulting Lender until such time as
such Defaulting Lender makes available to the Agent, the amount of such
Defaulting Lender's Loans and/or to the Issuer, such payments requested by the
Issuer together with all other amounts required to be paid to the Agent and/or
the Issuer pursuant to this Agreement.
"Disqualified Capital Stock" means (a) with respect to a person, except as
to any Subsidiary of such person, any Equity Interest of such person that, by
its terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased (including at
the option of the holder thereof) by such person or any of its Subsidiaries, in
whole or in part, on or prior to the Termination Date and (b) with respect to
any Subsidiary of such person (including with respect to any Subsidiary of the
Trust), any Equity Interests other than any common equity with no preference,
privileges, or redemption or repayment provisions.
"Dollars" and "$" means the lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary which is organized under the
laws of any State of the United States of America.
"EBITDA" means, for any period, Consolidated Net Income for such period
plus all amounts deducted in determining such Consolidated Net Income on
account of (a) Consolidated Interest Expense, (b) income taxes and the State of
Michigan single business tax and, without duplication, Permitted Tax
Distributions, and (c) depreciation expense and non-cash amortization expense,
all as determined for the Trust and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"EBITDAR" means, for any period, EBITDA for such period plus all amounts
deducted in determining such EBITDA on account of Rentals, all as determined
for the trust and its subsidiaries on a consolidated basis in accordance with
Agreement Accounting Principles.
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"Effective Date" means the date inserted by the Agent in the last
paragraph of this Agreement.
"Eligible Accounts Receivable" means, as of any date, those accounts
receivable owned by any Borrower or any Guarantor which are payable in Dollars
and in which such Borrower or such Guarantor has granted to the Agent, for the
benefit of the Agent and the Lenders, an enforceable, first priority perfected
security interest which is not void or voidable pursuant to a Security
Agreement and all representations and warranties pertaining to such accounts
receivable in such Security Agreement are true and correct, valued at the face
amount thereof less sales, excise or similar taxes outstanding and less
returns, discounts, credits and allowances of any nature at any time claimed in
writing or issued, owing or granted; but shall not include any such account
receivable (a) that is not a bona fide existing obligation created by the sale
and actual delivery of inventory, goods or other property or the furnishing of
services or other good and sufficient consideration to customers of a Borrower
or Guarantor, as the case may be, in the ordinary course of business, (b) that
is outstanding more than 90 days after the earlier of the date of the related
invoice or the date the related goods were shipped or services provided, (c)
that is subject to any dispute, contra-account, defense, offset or counterclaim
or any Lien (except those in favor of the Agent under a Security Agreement), or
the inventory, goods, property, services or other consideration of which such
account receivable constitutes proceeds is subject to any such Lien, (d) in
respect of which the inventory, goods, property, services or other
consideration have been rejected or the amount is in dispute, (e) that is due
from any Affiliate or Subsidiary of any Borrower or any Guarantor, (f) that is
payable by any person located outside the United States (which shall not be
deemed to include any territories of the United States) or Ontario, Canada, (g)
that is payable by the United States or any of its departments, agencies or
instrumentalities or by any state or other governmental entity or by any
foreign government unless such Borrower or such Guarantor, as the case may be,
fully complies with the Federal Assignment of Claims Act and executes all
documents and agreements and causes all documents and agreements to be executed
in connection therewith as requested by the Agent, (h) that is payable by any
person as to which 50% or more of the aggregate amount of such accounts
receivable payable by such person to any Borrower or any Guarantor, as the case
may be, do not otherwise constitute Eligible Accounts Receivable due to clause
(b) of this definition, (i) that are payable by any person that is the subject
of any proceeding seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up or reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property, or that is not generally paying
its debts as they become due or has admitted in writing its inability to pay
its debts generally or has made a general assignment for the benefit of
creditors, (j) which is evidenced by a promissory note or other instrument,
(other than a purchase order or sales agreement or other similar document in
the ordinary course of business), (k) which is deemed to be Eligible Unbilled
Receivables, or (l) that for any other reason is at any time deemed by the
Agent to be ineligible.
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"Eligible Inventory" shall mean, as of any date, that inventory (including
raw materials, work in process and finished goods) owned by any Borrower or any
Guarantor and in which such Borrower or such Guarantor has granted to the
Agent, for the benefit of the Lenders, an enforceable, first priority perfected
security interest which is not void or voidable pursuant to a Security
Agreement and all representations and warranties pertaining to such inventory
in such Security Agreement are true and correct, but shall not include any such
inventory (a) that does not constitute inventory readily salable or usable in
the business of any Borrower or any Guarantor, (b) that is located outside the
United States (which shall not be deemed to include any territories of the
United States) or Ontario, Canada, (c) that is subject to, or any accounts or
other proceeds resulting from the sale or other disposition thereof could be
subject to, any Lien (except those in favor of the Agent under the Security
Agreements), including any sale on approval or sale or return transaction or
any consignment, (d) that is not in the possession of any Borrower or any
Guarantor, (e) that is held for lease or is the subject of any lease, (f) that
is subject to any trademark, trade name or licensing arrangement, or any law,
rules or regulation, that could limit or impair the ability of the Agent to
promptly exercise all rights of the Agent under the Security Agreements, (g) if
such inventory is located on premises not owned by any Borrower or any
Guarantor and the landlord or other owner of such premises has not waived its
distraint, lien and similar rights with respect to such inventory and shall not
have agreed to permit the Agent to enter such premises pursuant to a waiver and
agreement of such person in favor of and in form and substance acceptable to
Agent, (h) with respect to which any insurance proceeds are not payable to the
Agent as a lender loss payee or are payable to any loss payee other than the
Agent, (i) which is deemed to be Eligible Unbilled Receivables or (j) that for
any other reason is at any time deemed by the Agent to be ineligible.
"Eligible Unbilled Receivables" means, as of any date, those obligations
owing to any Borrower or any Guarantor which would constitute an Eligible
Account Receivable but for the fact that an invoice has not been sent by such
Borrower or Guarantor, provided that each of the following conditions is
satisfied for each such obligation: (a) such obligation is covered under a
written work order or other agreement between such Borrower or such Guarantor
and the Person owing such obligation, including price verification, which is
binding and enforceable on such Person to pay such obligation and otherwise
contains such terms satisfactory to the Agent, (b) has not been classified as
an Eligible Unbilled Receivable for more than 180 days and (c) such obligation
is not at any time otherwise deemed by the Agent to be ineligible.
"Environmental Certificate" shall mean an appropriately completed
environmental certificate, substantially in the form approved by the Agent,
delivered by each of the Borrowers and Guarantors, certified as true and
correct as of such date by an Authorized Officer of each Borrower and each
Guarantor.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions,
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permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the environment,
(ii) the effect of the environment on human health, (iii) emissions, discharges
or releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) 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.
"Equity Interest" of any person means any shares, interests,
participations or other equivalents (however designated) in such person s
equity (including any trust beneficiary interests), and shall in any event
include any Capital Stock issued by, or partnership or membership interests in,
such person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the rate determined by the Agent to be the
rate at which deposits in dollars are offered to NBD by prime banks in the
London interbank market at approximately 11 a.m. (London time) two Business
Days prior to the first day of such Eurodollar Interest Period, in the
approximate amount of NBD's relevant Eurodollar Loan and having a maturity
approximately equal to such Eurodollar Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance,
a period of one, two, three or six months commencing on a Business Day selected
by the Borrowers pursuant to this Agreement. Such Eurodollar Interest Period
shall end on the day which corresponds numerically to such date one, two,
three, or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Eurodollar Interest Period shall end on the last Business Day of
such next, second, third, or sixth succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a
AMENDED AND RESTATED CREDIT AGREEMENT
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17
decimal) applicable to such Eurodollar Interest Period, plus (ii) the
Applicable Margin. The Eurodollar Rate shall be rounded to the next higher
multiple of 1/16 of 1% if the rate is not such a multiple.
"Facility Letter of Credit" means a Letter of Credit issued by the Issuer
pursuant to Section 2.2.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrowers with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and (b) the aggregate undrawn face amount of the
outstanding Facility Letters of Credit.
"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 a.m.
(Detroit time) on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent in its
sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, and (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to, interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options.
"Fixed Charges" shall mean, for any period, without duplication, the sum
of the following amounts for such period (i) Consolidated Interest Expense,
(ii) Rentals, (iii) income taxes and the State of Michigan single business tax
payable by the Trust or any of its Subsidiaries and, without duplication, the
amount of Restricted Payments, and (iv) all scheduled principal payments paid
or payable on Indebtedness, all calculated for the Trust and its Subsidiaries
on a consolidated basis in accordance with Agreement Accounting Principles.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal quarter,
the ratio of (a) EBITDAR minus Capital Expenditures to (b) Fixed Charges, in
each case calculated for the four consecutive fiscal quarters then most
recently ended for the Trust and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles consistently applied, provided
that for the fiscal quarter ended June 30, 1997, such amount shall be
calculated for the ten
AMENDED AND RESTATED CREDIT AGREEMENT
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18
consecutive months then ending. Any purchase of equipment paid for with the
Net Cash Proceeds from the sale of any other equipment within 360 days of such
sale shall not be considered a Capital Expenditure under this definition to the
extent such Net Cash Proceeds were used for such payment.
"Foreign Subsidiary" means each Subsidiary of the Trust other than a
Domestic Subsidiary.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Prime Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Prime Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Guarantor" means each present and future Subsidiary of the Trust (other
than a Borrowing Subsidiary).
"Guaranty" means, collectively, that certain Guaranty in the form of
Exhibit B hereto, executed by the Guarantors in favor of the Agent, for the
ratable benefit of the Lenders, and any other guaranty executed at any time by
any Guarantor in connection herewith, as any of the foregoing may be amended or
modified from time to time.
"Indebtedness" of a Person means, without duplication, such Person's (i)
obligations for borrowed money or similar monetary obligations, (ii)
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), (iii) obligations, whether
or not assumed, secured by Liens or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, bonds, indentures or
other instruments, (v) Capitalized Lease Obligations, (vi) obligations under
Financial Contracts, provided that any obligation under any specific Financial
Contract shall be net of amount owing to such Person under such Financial
Contract, (vii) all reimbursements obligations under outstanding Letters of
Credit in respect of drafts which (A) may be presented or (B) have been
presented and have not yet been paid, and (viii) Contingent Obligations of such
Person for any of the obligations of other Persons of the type described in the
foregoing clauses (i) through (vii).
"Interest Coverage Ratio" shall mean, as of the end of any fiscal quarter,
the ratio of (a) EBITDA for the four fiscal quarters then ending to (b) to the
sum of Consolidated Interest Expense, in each case calculated for the four
consecutive fiscal quarters then most recently ended for the Trust and its
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles consistently applied, provided that for the fiscal quarter ended
June 30, 1997, such amount shall be
AMENDED AND RESTATED CREDIT AGREEMENT
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19
calculated for the ten consecutive months then ended.
"Issuer" means NBD and any other Lender designated at any time in writing
to the parties to the Agreement as an Issuer by the Borrowers and the Agent.
"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) or
contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.2.7.
"Leverage Ratio" means the ratio of consolidated Indebtedness of the Trust
and its Subsidiaries to EBITDA calculated for the four most recently ended
fiscal quarters as of the time of determination and subject to the proviso set
forth in Schedule 1.1-A and Section 6.28.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement benefiting a
third party 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 loan made pursuant
to Article II (or any conversion or continuation thereof), and, with respect to
the Agent, the Swing Loans.
"Loan Documents" means this Agreement, the Notes, the Collateral
Documents, the Guaranty, the Environmental Certificate and all other agreements
and documents contemplated
AMENDED AND RESTATED CREDIT AGREEMENT
- -12-
20
hereby or otherwise executed in connection herewith by the Trust, any Borrowing
Subsidiary or any Guarantor.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Trust and its Subsidiaries taken as a whole, (ii) the
ability of the Trust, any Borrowing Subsidiary or any Guarantor to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Agent or the
Lenders thereunder.
"Mortgages" means each mortgage, deed of trust or similar document
granting a Lien on real property entered into by any Borrower or any Guarantor
for the benefit of the Agent and the Lenders pursuant to this Agreement,
substantially in the forms as approved by the Agent, as amended or modified
from time to time.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Trust or any member
of the Controlled Group is a party to which more than one employer is obligated
to make contributions.
"NBD" means NBD Bank, a Michigan banking corporation, including any of its
branches and affiliates, and its successors and assigns.
"Net Cash Proceeds" means, without duplication (a) in connection with any
sale or other disposition of any asset or any settlement by, or receipt of
payment in respect of, any property insurance claim or condemnation award, the
cash proceeds (including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such
sale, settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Agent for the benefit of the Agent
and the Lenders) and other customary fees actually incurred in connection
therewith, taxes paid or reasonably estimated to be payable as a result
thereof, and any cash reserves required to be maintained for liabilities
associated with the sale (provided that such cash reserves shall become Net
Cash Proceeds when no longer required to be held as reserves), and (b) in
connection with any issuance or sale of any equity securities or debt
securities or instruments or the incurrence of loans, the cash proceeds
received from such issuance or incurrence, net of investment banking fees,
reasonable and documented attorneys' fees, accountants' fees, underwriting
discounts and commissions and other reasonable and customary fees and expenses
actually incurred in connection therewith.
"1994 Subordinated Indenture" is defined in the definition of 1994
Subordinated Debt
AMENDED AND RESTATED CREDIT AGREEMENT
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21
Documents.
"1996 Subordinated Supplemental Indenture" is defined in the definition of
1994 Subordinated Debt Documents.
"1994 Subordinated Debt" means all Indebtedness owing pursuant to the 1994
Subordinated Debt Documents.
"1994 Subordinated Debt Documents" means the Indenture dated as of
February 16, 1994 among Venture Holdings Trust, Vemco, Inc., Venture Industries
Corporation, Venture Mold & Engineering Corporation, Venture Leasing Company,
Vemco Leasing, Inc., Venture Holdings Corporation and Venture Service Company,
as Issuers, Venture Industries Canada Ltd., as Guarantor, and Comerica Bank, as
Indenture Trustee, in connection with $100,000,000 9-3/4% Senior Subordinated
Notes due 2004 (as amended by supplemental indentures listed on Schedule 5.19
(collectively, the "1996 Subordinated Supplemental Indenture") between the
Borrowers and Comerica Bank, as Trustee, the "1994 Subordinated Indenture"), of
which $78,940,000 is outstanding, together with all agreements, documents and
instruments executed in connection therewith at any time.
"1996 Credit Agreement" shall mean the Credit Agreement dated as of August
26, 1996, as amended, among the borrowers named therein, the Lenders party
thereto and NBD Bank, as Agent.
"1997 Senior Unsecured Debt Documents" means the Indenture dated as of
July 1, 1997 among the Borrowers, as Issuers, and The Huntington National Bank,
as Indenture Trustee, under which the 1997 Senior Unsecured Notes are to be
issued, together with all agreements, documents and instruments executed in
connection therewith at any time.
"1997 Senior Unsecured Notes" means the $205,000,000 9 1/2% Senior Notes
due 2005 to be issued by the Borrowers on or before the Effective Date.
"Note" means the Swingline Note or any Revolving Credit Note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means, without duplication, all unpaid principal of and
accrued and unpaid interest on the Notes, all accrued and unpaid fees, all
Facility Letter of Credit Obligations and all other obligations of any of the
Borrowers or Guarantors to the Lenders or to any Lender or the Issuer or the
Agent arising under the Loan Documents, in each case whether now or hereafter
owing.
"Operating Expense or Cost Reduction" means, with respect to the
calculation of any
AMENDED AND RESTATED CREDIT AGREEMENT
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22
financial ratio under this Agreement on a Pro Forma Basis, an operating expense
or cost reduction with respect to an Acquisition, which, in the good faith
estimate of management, will be realized as a result of such Acquisition,
provided that the foregoing eliminations of operating expenses and realizations
of cost reductions shall be of the types permitted to be given effect to in
accordance with Article 11 of Regulation S-X under the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated by the
Securities and Exchange Commission thereunder, as in effect on the Effective
Date and such reduction is subject to negative comfort by the Trust s
independent public accountants.
"Overdue Rate" means (a) in respect of principal of Floating Rate Loans, a
rate per annum that is equal to the sum of three percent (3%) per annum plus
the Floating Rate, (b) in respect of principal of Eurodollar Loans, a rate per
annum that is equal to the sum of three percent (3%) per annum plus the per
annum rate in effect thereon until the end of the then current Eurodollar
Interest Period for such Loan and, thereafter, a rate per annum that is equal
to the sum of three percent (3%) per annum plus the Floating Rate, and (c) in
respect of other amounts payable by the Borrowers hereunder (other than
interest), a per annum rate that is equal to the sum of three percent (3%) per
annum plus the Floating Rate.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each March, June, September
and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Payments" is defined in Section 6.24.
"Permitted Tax Distributions" is defined in Section 6.10.
"Person" or "person" means any natural person, corporation, firm, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Trust or any member of the Controlled Group may have any
liability.
"Pledge Agreements" shall mean each Pledge Agreement entered into by any
Borrower or any Guarantor for the benefit of the Agent and the Lenders pursuant
to this Agreement substantially in the forms attached hereto as Exhibits C-1
and C-2, as amended or modified from time to time.
AMENDED AND RESTATED CREDIT AGREEMENT
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23
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced
rate may not necessarily be the lowest rate charged by the Agent to any of its
customers), which Prime Rate shall change simultaneously with any change in
such announced rate.
"Pro Forma Basis" means, for purposes of calculating compliance with any
financial ratio under this Agreement, giving pro forma effect to certain
transactions such that, (i) Acquisitions which occurred during the four full
fiscal quarters ended immediately preceding any date upon which any
determination is to be made pursuant to this Agreement (the "Reference Period")
or subsequent to the Reference Period and on or prior to the determination date
shall be assumed to have occurred on the first day of the Reference Period and
any Operating Expense or Cost Reduction with respect to such Acquisition shall
be deducted from such calculation, (ii) transactions giving rise to the need to
calculate any financial ratio under this Agreement shall be assumed to have
occurred on the first day of the Reference Period, (iii) the incurrence of any
Indebtedness or issuance of any Disqualified Capital Stock during the Reference
Period or subsequent to the Reference Period and on or prior to the
determination date (and the application of the proceeds therefrom, including to
refinance or retire other Indebtedness) shall be assumed to have occurred on
the first day of such Reference Period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based on the average daily balance during the Reference
Period), and (iv) the Consolidated Fixed Charges of such person attributable to
interest on any Indebtedness or dividends on any Disqualified Capital Stock
bearing a floating interest (or dividend) rate shall be computed on a pro forma
basis as if the average rate in effect from the beginning of the Reference
Period to the determination date had been the applicable rate for the entire
period, unless such person or any of its Subsidiaries is a party to any Rate
Hedging Agreement (which shall remain in effect for the 12-month period
immediately following the determination date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Pro Rata Share" means, for each Lender, the ratio such Lender's Revolving
Credit Commitment bears to the Aggregate Revolving Credit Commitment.
"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,
AMENDED AND RESTATED CREDIT AGREEMENT
- -16-
24
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Reimbursement Obligations" means, at any time, without duplication, the
aggregate of the obligations of any Borrower to the Lenders and the Issuer in
respect of all unreimbursed payments or disbursements made by the Issuer and
the Lenders under or in respect of the Facility Letters of Credit.
"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 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 relating to
the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Rentals" of a Person means, without duplication, the aggregate amounts
payable by such Person under any lease, usage agreement or other similar
agreement for the lease or use in any manner of Property, but does not include
any amounts payable under Capitalized Leases of such Person.
"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 Lenders in the aggregate having at least 51% of
the Aggregate Revolving Credit Commitment or, if the Aggregate Revolving Credit
Commitment has been terminated, Lenders in the aggregate holding at least 51%
of the aggregate unpaid principal amount of the outstanding Loans and Facility
Letter of Credit Obligations.
AMENDED AND RESTATED CREDIT AGREEMENT
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25
"Required Revolving Credit Lenders" means Revolving Credit Lenders holding
not less than 51% of the Revolving Credit Commitments (or 51% of the Revolving
Credit Loans and Facility Letters of Credit if the Revolving Credit Commitments
have been terminated).
"Reserve Requirement" means, with respect to a Eurodollar Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Revolving Credit Commitments" means, with respect to each Lender, the
commitment of each such Lender to make Revolving Credit Loans, and to
participate in Facility Letters of Credit and Swing Loans, in amounts not
exceeding in the aggregate principal or face amount outstanding at any time the
Revolving Credit Commitment amount for such Lender set forth next to the name
of such Lender on the signature pages hereof, or, as to any Lender becoming a
party hereto after the Effective Date, as set forth in the applicable
assignment, in each case as reduced or modified pursuant to this Agreement.
"Revolving Credit Lenders" means those Lenders which have Revolving Credit
Commitments or, if such Revolving Credit Commitments shall have been
terminated, have outstanding Revolving Credit Loans or Facility Letters of
Credit Obligations.
"Revolving Credit Loan" means any borrowing under Section 2.1(a) evidenced
by the Revolving Credit Notes.
"Revolving Credit Notes" means the promissory notes of the Borrowers in
substantially the form of Exhibit D hereto evidencing the Revolving Credit
Loans, respectively, as amended or modified from time to time and together with
any promissory note or notes issued in exchange or replacement therefor.
"Revolving Credit Percentage" shall mean, with respect to any Revolving
Credit Lender at any time, the percentage of the aggregate Revolving Credit
Commitments of all Revolving Credit Lenders then constituted by such Revolving
Credit Lender's Revolving Credit Commitment.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Hedging Obligations owing to one or more Lenders.
"Security Agreement" shall mean each security agreement in substantially
the form of Exhibit E hereto entered into by any Borrower or any Guarantor for
the benefit of the Agent and the
AMENDED AND RESTATED CREDIT AGREEMENT
- -18-
26
Lenders pursuant to this Agreement, as amended or modified from time to time.
"Single Employer Plan" means a Plan maintained by any Borrower or any
member of the Controlled Group for employees of any Borrower or any member of
the Controlled Group.
"Special Advisor" means Larry J. Winget.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Secured
Obligations to the written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) 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 (ii) 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 Trust.
"Substantial Portion" means, with respect to the Property of the Trust and
its Subsidiaries, property which (i) represents more than 5% of the
consolidated assets of the Trust and its Subsidiaries as would be shown in the
consolidated financial statements of the Trust and its Subsidiaries as at the
beginning of the twelve month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Trust and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Successor Special Advisor Group" means those Persons appointed to such
Group pursuant to the Trust Agreement, provided that (a) no Person or group of
affiliated Persons shall be or become a member of the Successor Special Advisor
Group other than (i) those Persons who are appointed to the Successor Special
Advisor Group pursuant to the Trust Agreement on and as of the Effective Date,
namely (the "incumbent members") or (ii) Persons chosen to replace the
incumbent members who are chosen by the remaining incumbent members; and (b) at
no time shall less than 40% of the members of the Successor Special Advisor
Group be employees of the Borrowers who are not lineal descendants of Larry J.
Winget, the spouse or widow of Larry J. Winget or the spouse or surviving
spouse of any lineal descendant of Larry J. Winget (other than Joseph
Tignanelli).
"Swing Loans" is defined in Section 2.1(c).
"Swingline Note" means the promissory note of the Borrowers evidencing the
Swing Loans,
AMENDED AND RESTATED CREDIT AGREEMENT
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27
in form satisfactory to the Agent, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Termination Date" means the earlier to occur of (a) June 30, 2003, and
(b) the date on which the Revolving Credit Commitments shall be terminated
pursuant hereto.
"Transferee" is defined in Section 12.4.
"Trust" means (i) Venture Holdings Trust, a grantor trust organized under
the laws of Michigan, (ii) Venture Holdings Corporation after the occurrence of
a Trust Contribution or (iii) any successor Person to Venture Holdings Trust or
Venture Holdings Corporation (after the occurrence of a Trust Contribution) in
accordance with the provisions of Section 6.12.
"Trust Agreement" means the Agreement, dated December 28, 1987, as
amended, prior to the date hereof, among Larry J. Winget, as trustee (the "VHT
Trustee"), and Larry J. Winget, as Settlor, Beneficiary and Special Advisor, as
such agreement may be amended in a manner acceptable to the Required Lenders
(and it is hereby agreed that the Trust Agreement and any related agreements
will not be amended or otherwise modified in any manner adverse to the Lenders
(as determined by the Required Lenders) without the prior written consent of
the Required Lenders).
"Trust Contribution" is defined in Section 6.12.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"VHT Trustee" means Larry J. Winget, as trustee under the Trust Agreement.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability
company, association, joint venture or similar business organization 100% of
the ownership interests having
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ordinary voting power of which shall at the time be so owned or controlled.
"Working Capital" means, as of any date, the amount, if any, by which
Consolidated Current Assets exceeds Consolidated Current Liabilities.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Revolving Credit Commitments of the Lenders
(a) Revolving Credit Loans. Each Revolving Credit Lender agrees, for
itself only, subject to the terms and conditions of this Agreement, to make
Revolving Credit Loans to any Borrower from time to time from and including the
Effective Date to but excluding the Termination Date, not to exceed in
aggregate principal amount at any time outstanding the amount determined
pursuant to Section 2.1(b).
(b) Limitation on Amount of Advances. Notwithstanding anything in this
Agreement to the contrary, the aggregate principal amount of the Revolving
Credit Loans, the Swing Loans and the Facility Letter of Credit Obligations at
any time outstanding to the Borrowers shall not exceed the lesser of (A) the
amount of the Borrowing Base as of the most recently received Borrowing Base
Certificate and (B) the Aggregate Revolving Credit Commitment as of the date
any such Advance is made, provided, however, that the aggregate Facility Letter
of Credit Obligations at any time shall not exceed $20,000,000 and the
aggregate Swing Loans at any time outstanding shall not exceed $5,000,000.
(c) Swing Loans.
(i) Making of Swing Loans. The Agent may elect in its sole
discretion to make revolving loans (the "Swing Loans") to any Borrower solely
for the Agent's own account, from time to time prior to the Termination Date up
to an aggregate principal amount at any one time outstanding not to exceed the
lesser of (i) $5,000,000 or (ii) the amount allowable under Section 2.1(b).
The Agent may make Swing Loans (provided that the Agent has received a request
in writing or via telephone from an Authorized Officer of a Borrower for
funding of a Swing Loan no later than 12 noon, Detroit time, on the Business
Day on which such Swing Loan is requested to be made. Each outstanding Swing
Loan shall be payable on the Business Day following demand therefor and
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in any event no later than five Business Days after the Borrowing Date for such
Swing Loan, with interest at the Floating Rate accrued thereon, shall be
secured as part of the Secured Obligations by the Collateral and shall
otherwise be subject to all the terms and conditions applicable to Loans,
except that all interest thereon shall be payable to the Agent solely for its
own account. All Swing Loans shall be evidenced by Swingline Note.
(ii) Swing Loan Borrowing Requests. The Borrowers agree to deliver
promptly to the Agent a written confirmation of each telephonic notice for
Swing Loans signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent, the records
of the Agent shall govern, absent manifest error.
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(iii) Repayment of Swing Loans.
(A) At any time after making a Swing Loan, the Agent may
request the Borrowers to, and upon request by the Agent the Borrowers shall,
promptly request a Revolving Credit Loan from all the Lenders and apply the
proceeds of such Revolving Credit Loan to the repayment of any Swing Loan owing
by the Borrowers not later than the Business Day following the Agent's request.
Notwithstanding the foregoing, upon the earliest to occur of (a) 12 noon,
Detroit time, on the sixth Business Day after a Swing Loan is made, (b) one
Business Day after demand is made by the Agent, and (c) the Termination Date,
each Lender (other than the Agent) shall irrevocably and unconditionally
purchase from the Agent, without recourse or warranty, an undivided interest
and participation in such Swing Loan in an amount equal to such Lender's Pro
Rata Share of such Swing Loan and promptly pay such amount to the Agent in
immediately available funds. Such payment shall be made by the other Lenders
whether or not a Default or Unmatured Default is then continuing or any other
condition precedent set forth in Section 4.2 is then met and whether or not the
Borrowers have then requested an Advance in such amount; and such Swing Loan
shall thereupon be deemed to be a Floating Rate Advance hereunder made on the
date of such purchase (except, as aforesaid, with respect to the existence of
any Default or Unmatured Default or the meeting of any condition precedent
specified in Section 4.2 on such date). If any Lender fails to make available
to the Agent any amounts due to the Agent pursuant to this Section, the Agent
shall be entitled to recover such amount, together with interest thereon at the
Federal Funds Effective Rate for the first three Business Days after such
Lender receives notice of such required purchase and thereafter, at the
Floating Rate, payable (i) on demand, (ii) by setoff against any payments made
to the Agent for the account of such Lender or (iii) by payment to the Agent by
the Agent of amounts otherwise payable to such Lender under this Agreement. The
failure of any Lender to make available to the Agent its Pro Rata Share of any
unpaid Swing Loan shall not relieve any other Lender of its obligation
hereunder to make available to the Agent its Pro Rata Share of any unpaid Swing
Loan on the date such payment is to be made, but no Lender shall be responsible
for the failure of any other Lender to make available to the Agent its Pro Rata
Share of any unpaid Swing Loan.
(B) Upon the making of any Advance, any Swing Loan then
outstanding shall be repaid in full, and the Borrowers hereby irrevocably
authorize the Agent to apply all or any necessary portion of the proceeds of
any such Advance to the repayment of any Swing Loan then outstanding.
2.2. Facility Letters of Credit.
2.2.1. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrowers and the Guarantors in the Loan Documents, the Issuer hereby agrees to
issue for the account of the Borrowers through such of the
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Issuer's Lending Installations or Affiliates as the Issuer and any Borrower may
jointly agree, one or more Facility Letters of Credit in accordance with this
Section 2.2, from time to time during the period, commencing on the Effective
Date and ending on the Business Day prior to the Termination Date.
2.2.2. Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the obligation of the
Issuer to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the aggregate maximum amount then available for drawing under
Letters of Credit issued by the Issuer, after giving effect to the Facility
Letter of Credit requested hereunder, shall not exceed any limit imposed by law
or regulation upon the Issuer;
(ii) after giving effect to the requested issuance of any Facility
Letter of Credit, the sum of (a) the Facility Letter of Credit Obligations and
(b) the total aggregate unpaid principal balance of the Revolving Credit Loans
does not exceed the amount permitted under 2.1(b).
(iii) the requested Letter of Credit has an expiration date prior to the
earlier of the Termination Date or the date one year after the issuance of such
Letter of Credit;
(iv) the Borrowers shall have delivered to the Issuer at such times and
in such manner as the Issuer may reasonably prescribe such documents and
materials as may be required pursuant to the terms of the proposed Letter of
Credit and the proposed Letter of Credit shall be reasonably satisfactory to
the Issuer as to form and content; and
(v) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuer from issuing the Facility Letter of Credit and no
law, rule or regulation applicable to the Issuer and no request or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over the Issuer shall prohibit or request that the Issuer refrain
from the issuance of Letters of Credit generally or the issuance of that
Facility Letter of Credit.
2.2.3. Procedure for Issuance of Facility Letters of Credit. (a) The
Borrowers shall give the Issuer two Business Day's prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement (except
that, in lieu of such written notice, the Borrowers may give the Issuer (x)
notice of such request by tested telex or other tested arrangement satisfactory
to the Issuer or (y) telephonic notice of such request if confirmed in writing
by delivery to the Issuer (i) immediately (A) of a telecopy of the written
notice required hereunder which has been signed by an Authorized Officer of the
Borrowers or (B) of a telex containing all information required to be contained
in such written notice and (ii) promptly (but in no event later than the
requested time of issuance) of a copy
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of the written notice required hereunder containing the original signature of
an Authorized Officer of the Borrowers); such notice shall be irrevocable and
shall specify the stated amount of the Facility Letter of Credit requested, the
effective date (which day shall be a Business Day) of issuance of such
requested Facility Letter of Credit, the date on which such requested Facility
Letter of Credit is to expire (which date shall be a Business Day and shall in
no event be later than the earlier of Termination Date or the date one year
after the issuance of such Letter of Credit), the purpose for which such
Facility Letter of Credit is to be issued, and the Person for whose benefit the
requested Facility Letter of Credit is to be issued. At the time such request
is made, the Borrowers shall also provide the Issuer with a copy of the form of
the Facility Letter of Credit it is requesting be issued. Such notice, to be
effective, must be received by the Issuer not later than 2:00 p.m. (Detroit
time) or the time agreed upon by the Issuer and the Borrowers on the last
Business Day on which notice can be given under this Section 2.2.3(a). The
Issuer shall promptly forward to the Lenders a copy of the Borrowers' request
for the issuance of a Letter of Credit hereunder.
(b) Subject to the terms and conditions of this Section 2.2.3 and
provided that the applicable conditions set forth in Sections 4.2 and 2.2.2
hereof have been satisfied, the Issuer shall, on the requested date, issue a
Facility Letter of Credit on behalf of the Borrowers in accordance with the
Issuer's usual and customary business practices.
(c) The Issuer shall not extend or amend any Facility Letter of Credit
unless the requirements of this Section 2.2.3 are met as though a new Facility
Letter of Credit was being requested and issued.
2.2.4. Reimbursement Obligations.
(a) The Borrowers agree to pay to the Agent the amount of all
Reimbursement Obligations, interest and other amounts payable to the Agent
under or in connection with any Facility Letter of Credit immediately when due,
irrespective of any claim, set-off, defense or other right which the Borrowers
or any Subsidiary may have at any time against the Issuer or any other Person,
under all circumstances, including without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the
Trust or any Subsidiary may have at any time against a beneficiary named in a
Facility Letter of Credit or any transferee of any Facility Letter of Credit
(or any Person for whom any such transferee may be acting), the Issuer, any
Lender, or any other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transactions between the Trust
or any Subsidiary and the beneficiary
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named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the
Facility Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect (provided that, if all Reimbursement Obligations have been paid
in full and there is no Default or Unmatured Default, the Issuer shall assign,
without recourse, representation or warranty, to the Borrowers any claim, if
any, it may have against any person that has drawn on a Facility Letter of
Credit pursuant to a draft, certificate or other document which was forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being true or inaccurate in any respect pursuant to such Facility Letter of
Credit);
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the Borrowers of any draw under a
Facility Letter of Credit. The Borrowers shall reimburse the Issuer for
drawings under a Facility Letter of Credit issued by it no later than the
Business Day after the payment by the Issuer. Any Reimbursement Obligation
with respect to any Facility Letter of Credit shall bear interest from the date
of the relevant drawings under the pertinent Facility Letter of Credit until
paid at the Overdue Rate.
2.2.5. Participation. (a) Immediately upon issuance by the Issuer of any
Facility Letter of Credit in accordance with the procedures set forth in
Section 2.2.3 each Revolving Credit Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share
in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrowers with respect thereto) and any security therefor or
guaranty pertaining thereto; provided, that a Letter of Credit issued by the
Issuer shall not be deemed to be a Facility Letter of Credit for purposes of
this Section 2.2.5 if the Issuer shall have received written notice from any
Revolving Credit Lender on or before one Business Day prior to the date of its
issuance of such Letter of Credit that one or more of the conditions contained
in Section 4.2 is not then satisfied, and, in the event the Issuer receives
such a notice, it shall have no further obligation to issue any Letter of
Credit until such notice is withdrawn by that Revolving Credit Lender or such
condition has been effectively waived in accordance with the provisions of this
Agreement.
(b) In the event that the Issuer makes any payment under any Facility
Letter of Credit and the Borrowers shall not have repaid such amount to the
Issuer pursuant to Section 2.2.4, the Issuer shall promptly notify each
Revolving Credit Lender of such failure, and each Revolving Credit Lender shall
promptly and unconditionally pay to the Agent for the account of the Issuer the
amount
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of such Revolving Credit Lender's Pro Rata Share of the unreimbursed amount of
any such payment. If any Revolving Credit Lender fails to make available to
the Issuer, any amounts due to the Issuer pursuant to this Section 2.2.5(b),
the Issuer shall be entitled to recover such amount, together with interest
thereon at the Federal Funds Effective Rate, for the first three Business Days
after such Revolving Credit Lender receives such notice and thereafter, at the
Floating Rate, payable (i) on demand, (ii) by setoff against any payments made
to the Issuer for the account of such Revolving Credit Lender or (iii) by
payment to the Issuer by the Agent of amounts otherwise payable to such
Revolving Credit Lender under this Agreement. The failure of any Revolving
Credit Lender to make available to the Agent its Pro Rata Share of the
unreimbursed amount of any such payment shall not relieve any other Revolving
Credit Lender of its obligation hereunder to make available to the Agent its
Pro Rata Share of the unreimbursed amount of any payment on the date such
payment is to be made, but no Revolving Credit Lender shall be responsible for
the failure of any other Revolving Credit Lender to make available to the Agent
its Pro Rata Share of the unreimbursed amount of any payment on the date such
payment is to be made.
(c) Whenever the Issuer receives a payment on account of a Reimbursement
Obligation, including any interest thereon, it shall promptly pay to each
Revolving Credit Lender which has funded its participating interest therein, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Pro Rata Share thereof.
(d) The obligations of a Revolving Credit Lender to make payments to the
Agent with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim, set-off,
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
(e) In the event any payment by the Borrowers or any Subsidiary received
by the Agent with respect to a Facility Letter of Credit and distributed by the
Agent to the Revolving Credit Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Agent in connection with
any receivership, liquidation, reorganization or bankruptcy proceeding, each
Revolving Credit Lender which received such distribution shall, upon demand by
the Agent, contribute such Revolving Credit Lender's Pro Rata Share of the
amount set aside, avoided or recovered together with interest at the rate
required to be paid by the Agent upon the amount required to be repaid by it.
2.2.6. Compensation for Facility Letters of Credit. (a) The Issuer shall
have the right to receive, solely for its own account, an issuance fee of 0.25%
per annum on the average daily undrawn amount under each Facility Letter of
Credit issued by it as well as the Issuer's reasonable and customary costs of
issuing and servicing the Facility Letters of Credit.
(b) The Borrowers shall pay to the Agent, for the benefit of the
Revolving Credit
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Lenders, a fee computed at the Applicable Margin calculated on the maximum
amount available to be drawn from time to time under each Facility Letter or
Credit, which fee shall be paid annually in advance at the time each Facility
Letter of Credit is issued for the period from and including the date of
issuance thereof to and including the stated expiry date thereof.
2.2.7. Letter of Credit Collateral Account. The Borrowers hereby agree
that they will, until the final expiration date of any Facility Letter of
Credit and thereafter as long as any amount is payable to the Lenders in
respect of any Facility Letter of Credit, maintain a special collateral account
(the "Letter of Credit Collateral Account") at the Agent's office at the
address specified pursuant to Article XIII, in the name of the Borrowers but
under the sole dominion and control of the Agent, for the benefit of the
Lenders and in which the Borrowers shall have no interest other than as set
forth in Section 8.1. The Borrowers are not required by this Section 2.2.7 to
deposit any funds in the Letter of Credit Collateral Account, and the
obligation to make deposits into the Letter of Credit Collateral Account are
described in Section 8.1. The Agent will invest any funds on deposit from time
to time in the Letter of Credit Collateral Account in certificates of deposit
of the Agent having a maturity not exceeding 30 days. Nothing in this Section
2.2.7 shall either obligate the Agent to require the Borrowers to deposit any
funds in the Letter of Credit Collateral Account or limit the right of the
Agent to release any funds held in the Letter of Credit Collateral Account
other than as required by Section 8.1.
2.2.8. Nature of Obligations. (a) As among the Borrowers, the Issuer and
the Lenders, the Borrowers assumes all risks of the acts and omissions of, or
misuse of the Facility Letters of Credit by, the respective beneficiaries of
the Facility Letters of Credit. In furtherance and not in limitation of the
foregoing, the Issuer and the Lenders shall not be responsible for (i) the
forms, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Facility Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer of assign a Facility Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) failure of
the beneficiary of a Facility Letter of Credit to comply fully with conditions
required in order to draw upon such Facility Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) misapplication by the beneficiary of a Facility Letter of
Credit of the proceeds of any drawing under such Facility Letter of Credit;
(vii) any consequences arising from causes beyond the control of the Issuer or
the Lenders.
(b) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuer or
any Lender under or in connection with the Facility Letters of Credit or any
related certificates, if taken or omitted in good faith, shall not put
AMENDED AND RESTATED CREDIT AGREEMENT
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the Issuer or such Lender under any resulting liability to the Borrowers or
relieve the Borrowers of any of their obligations hereunder to the Issuer, the
Agent or any Lender.
2.3. Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Revolving Credit Commitments for such Loan bear to the Aggregate
Revolving Credit Commitment for such Loan.
2.4. Types of Advances. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrowers in
accordance with Sections 2.8 and 2.9.
2.5. Revolving Credit Commitment Fee; Reductions in Aggregate Revolving
Credit Commitment. The Borrowers agree to pay to the Agent for the account of
each Revolving Credit Lender a commitment fee at the rate of the Applicable
Margin on the daily unborrowed portion of such Lender's Revolving Credit
Commitment from the date hereof to and including the Termination Date, payable
on each Payment Date hereafter and on the Termination Date. The Borrowers may
permanently reduce the Aggregate Revolving Credit Commitment in whole, or in
part ratably among the Lenders in amounts of not less than $5,000,000 and
integral multiples of $1,000,000 thereafter, upon at least one Business Days'
written notice to the Agent, which notice shall specify the amount of any such
reduction, provided, however, that the amount of the Aggregate Revolving Credit
Commitment may not be reduced below the aggregate principal amount of the
outstanding Revolving Credit Loans and Facility Letters of Credit. All accrued
commitment fees shall be payable on the effective date of any termination of
the obligations of the Revolving Credit Lenders to make Revolving Credit Loans
hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Revolving Credit Commitment.
2.7. Principal Payments. Unless earlier payment is required under this
Agreement, the Borrowers shall pay to the Revolving Credit Lenders on the
Termination Date the entire outstanding principal amount of the Revolving
Credit Loans and Facility Letters of Credit outstanding to it. If the
Revolving Credit Loans and Facility Letters of Credit at any time exceed the
amount allowed pursuant to Section 2.1(b), the Borrowers shall prepay the
Revolving Credit Loans and Facility Letters of Credit by an amount equal to or
greater than such excess.
2.8. Method of Selecting Types and Eurodollar Interest Periods for New
Advances. The Borrowers shall select the Type of Advance and, in the case of
each Eurodollar Advance, the
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Eurodollar Interest Period applicable to each Advance from time to time. The
Borrowers shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 10:00 a.m. (Detroit time) at least one Business Day before the
Borrowing Date of each Floating Rate Advance and three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Eurodollar Interest
Period applicable thereto.
Not later than noon (Detroit time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Detroit to
the Agent at its address specified pursuant to Article XIII. The Agent will
make the funds so received from the Lenders available to the Borrowers at the
Agent's aforesaid address. Notwithstanding anything herein to the contrary,
the Borrowers acknowledge and agree that they may not elect the Eurodollar Rate
for any Loan prior to the date ninety (90) days after the Effective Date,
provided that NBD shall consider alternative interest rates during such ninety
(90) days as agreed upon between NBD and the Borrowers.
2.9. 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 Eurodollar Interest Period therefor, at which time such Eurodollar
Advance shall be automatically converted into a Floating Rate Advance unless
the Borrowers shall have given the Agent a Conversion/Continuation Notice
requesting that, at the end of such Eurodollar Interest Period, such Eurodollar
Advance either continue as a Eurodollar Advance for the same or another
Eurodollar Interest Period or be converted into an Advance of another Type.
Subject to the terms of Section 2.6, the Borrowers 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 Eurodollar Interest Period
applicable thereto. The Borrowers shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurodollar Advance not later than 10:00 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:
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(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
(iii) the amount 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 Eurodollar Interest Period
applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.9 to but excluding
the date it becomes due or is converted into a Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
day. 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 Prime Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Eurodollar Interest Period applicable thereto to (but not including) the last
day of such Eurodollar Interest Period at the interest rate determined as
applicable to such Eurodollar Advance. No Eurodollar Interest Period may end
after, with respect to any Revolving Credit Loan, the Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to
the Borrowers (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare that no Advance
may be made as, converted into or continued as a Eurodollar Advance. During
the continuance of a Default the Required Lenders may, at their option, by
notice to the Borrowers (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that
each Advance shall bear interest at the Overdue Rate.
2.12. Method of Payment. All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in immediately available
funds to the Agent at the Agent's address specified pursuant to Article XIII,
or at any other Lending Installation of the Agent specified in writing by the
Agent to the Borrowers, by noon (local time) on the date when due and shall be
applied ratably by the Agent among the Lenders. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending
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Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of any Borrower maintained
with NBD for each payment of principal, interest and fees as it becomes due
hereunder.
2.13. Notes Recordation; Telephonic Notices. Each Lender is hereby
authorized to record the principal amount of each of its Loans and each
repayment on the schedule attached to its Note, provided, however, that neither
the failure to so record nor any error in such recordation shall affect the
Borrowers' obligations under such Note. The Borrowers hereby authorize the
Lenders and the Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic or
facsimile notices made by any person or persons the Agent or any Lender in good
faith believes to be an Authorized Officer or authorized to act on behalf of an
Authorized Officer. The Borrowers agree to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the 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 Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.14. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a
day other than a Payment Date shall be payable on the date of conversion.
Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Eurodollar 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 Eurodollar Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Eurodollar Interest Period. Interest and
commitment fees shall be calculated for actual days elapsed on the basis of a
360-day year. 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,
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.
2.15. Notification of Advances, Interest Rates, Prepayments and Revolving
Credit Commitment Reductions. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Revolving Credit
Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The Agent will notify each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
AMENDED AND RESTATED CREDIT AGREEMENT
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determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Prime Rate.
2.16. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrowers, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.17. Non-Receipt of Funds by the Agent. Unless the Borrowers or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrowers, a payment of
principal, interest or fees to the Agent for the account of the Lenders, that
it does not intend to make such payment, the Agent may assume that such payment
has been made. The 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 the Borrowers, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the 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 Agent until the date the
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 the Borrowers, the interest rate applicable to the
relevant Loan.
2.18. Mandatory Prepayment in the Event of a Change in Control. Within
30 Business Days prior to the consummation of any transaction which would cause
a Change in Control, the Borrowers shall notify (a "Change in Control Notice")
the Agent and each Lender of such expected transaction, including within such
Change in Control Notice the expected closing date of such transaction. Within
15 Business Days of receipt of such Change in Control Notice by any Lender,
such Lender may, at its option, give notice to the Agent and the Borrowers that
such Lender elects to terminate its Revolving Credit Commitments hereunder.
Unless an earlier date is otherwise agreed upon between the Borrowers, the
Agent and the terminating Lender, such Lender's Revolving Credit Commitments
shall terminate simultaneously with the closing of such transaction and the
Borrowers shall repay at such time all of such Lender's outstanding Loans,
together with accrued interest thereon, any accrued fees with respect to such
Lender's Revolving Credit Commitment, any costs, losses or expenses incurred by
such Lender in connection with such prepayment payable by the Borrower pursuant
to Section 3.4 and any other obligations of the Borrowers to such Lender
hereunder. In the event any of the Lenders do not elect to terminate their
respective Revolving Credit Commitments hereunder, the Borrowers may,
notwithstanding any provision herein to the contrary, make any mandatory
prepayments required under the 1994 Subordinated Debt Documents
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and the 1997 Senior Unsecured Debt Documents so long as such payments would not
cause a Default or Unmatured Default under this Agreement (other than a Default
under Section 6.17 or 6.24).
2.19 Obligations Joint and Several. Anything herein to the contrary
notwithstanding, each Borrower hereby agrees and acknowledges that the
obligation of each Borrower for payment of the Obligations shall be joint and
several with the obligations of each other Borrower hereunder regardless of
which Borrower actually receives the proceeds of any Borrowing. Without
limiting the generality of the foregoing, each Borrower agrees and acknowledges
that it is jointly and severally liable for all Obligations of each Borrower
under the Revolving Credit Commitments even though such Borrower itself may not
borrow for its own account thereunder.
Each Borrower agrees that its joint and several obligation to pay all
Obligations hereunder is irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than the indefeasible
payment in full of the Obligations, and the liability of each Borrower with
respect to the Obligations shall not be affected, reduced or impaired by (i)
consideration of the amount of proceeds of the Loans received by any Borrower
relative to the aggregate amount of the Loans, (ii) consideration of the face
amount of Letters of Credit issued for the account of any Borrower relative to
the aggregate face amount of all Letters of Credit issued hereunder, (iii) the
dissolution or termination of or any increase, decrease or change in personnel
of, any other Borrower, (iv) the insolvency or business failure of, or any
assignment for the benefit of creditors by, or the commencement of any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceedings by or against any other Borrower or (v) the appointment of a
receiver for, or the attachment, restraint of or making or levying of any order
of court or legal process affecting, the property of any other Borrower. Each
Borrower agrees that a separate action or actions may be brought and prosecuted
against such Borrower whether or not action is brought against any other
Borrower and whether or not any other Borrower is joined in any such action or
actions. Any Borrower's payment of a portion, but not all, of the Obligations
shall in no way limit, affect, modify or abridge such Borrower's liability for
that portion of the Obligations which is not paid.
Each Borrower hereby waives any right to require the Agent or any Lender,
as a condition of payment or performance of the Obligations by such Borrower,
to proceed against any other Borrower or any other Person, to exhaust any
security held from any Borrower, or pursue any other remedy in the power of the
Agent or any Lender. Each Borrower hereby waives any defense arising by reason
of incapacity, lack of authority or any disability or other defense or benefits
that may be derived or afforded by law which would limit the liability of or
exonerate any guarantor or surety with respect to the Obligations, or which may
conflict with the terms and provisions of this Agreement.
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Any indebtedness of a Borrower now or hereafter held by any other Borrower
is hereby subordinated in right of payment to the Obligations, and any such
indebtedness of a Borrower to any other Borrower collected or received by such
other Borrower after an Event of Default has occurred and is continuing shall
be held in trust for the Agent on behalf of the Lenders and shall forthwith be
paid over to the Agent for the benefit of the Lenders to be credited and
applied against the Obligations but without affecting, impairing or limiting in
any manner the liability of such other Borrower under any other provision of
this Agreement.
2.20 Contribution Among Borrowers and Guarantors. In order to provide for
just and equitable contribution among the Borrowers and the Guarantors, the
Borrowers and the Guarantors shall execute a subrogation and contribution
agreement (which shall be deemed a Loan Document) in form and substance
satisfactory to the Required Lenders.
2.21. Financial Condition of Borrowers. Neither the Agent nor any Lender
shall have any obligation to any Borrower or any Guarantor to disclose or
discuss with such Borrower or any Guarantor the Agent or any Lender's
assessment of the financial condition of any Borrower or any Guarantor, and
each Borrower and each Guarantor hereby waives any obligation of any Lender to
disclose any matter, fact or thing relating to the business, operations or
conditions of any Borrower or any Guarantor now or hereafter known by the Agent
or any Lender. Each Borrower and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of each other Borrower
and each Guarantor and of all circumstances bearing upon the risk of nonpayment
of the Secured Obligations by any other Borrower. No Lender shall have any
obligation to any Borrower or any Guarantor arising from any Lender's
assessment of, or failure to assess, any Borrower's or any Guarantor's
financial condition in connection with the granting of any Loans or other
extensions of credit hereunder.
2.22. Collateral Security; Further Assistance. (a) As security for the
payment of the Obligations, the Borrowers shall cause to be granted to the
Agent, for the ratable benefit of the Lenders, a Lien on and security interest
in all of the following, whether now or hereafter existing or acquired: (i)
all of the shares of capital stock of each Domestic Subsidiary now or hereafter
owned by any Borrower or any Guarantor and all proceeds thereof, all as more
specifically described in the Pledge Agreement; and (ii) not less than 65% (or
100% if requested by the Agent) of the outstanding shares of capital stock of
each Foreign Subsidiary now or hereafter directly owned by any Borrower or any
Guarantor and all proceeds thereof, all as more specifically described in the
Pledge Agreements; and all other Property now or hereafter owned by any
Borrower or any Guarantor and all proceeds thereof, all as more specifically
described in the Collateral Documents.
(b) Concurrently with the consummation of any Acquisition or the
formation of any new Subsidiary of any Borrower which is permitted hereunder,
the Borrowers shall:
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(i) in the case of an Acquisition of stock by any Borrower or a
Subsidiary or the formation of a new Subsidiary: (A) deliver or cause to be
delivered to the Agent, for the ratable benefit of the Lenders, (I) in the case
of the Acquisition of the stock of a Domestic Subsidiary or the formation of a
Domestic Subsidiary, all of the certificates representing the capital stock (or
other instruments or securities evidencing ownership) of such new Domestic
Subsidiary which is being acquired or formed, and (II) in the case of the
Acquisition of the stock of a Foreign Subsidiary or the formation of a Foreign
Subsidiary, all of the certificates representing not less than 65% (or 100% if
requested by the Agent) of the outstanding capital stock (or other instruments
or securities evidencing ownership) of such new Foreign Subsidiary which is
being acquired or formed, as additional collateral for the Obligations, to be
held by the Agent; (B) cause each new Domestic Subsidiary and, if requested by
the Agent, each Foreign Subsidiary which is being acquired or formed to deliver
to the Agent a Guaranty and Collateral Documents, granting to the Agent, for
the ratable benefit of the Lenders, a Lien on and security interest in all of
the Property now or hereafter owned by such new Subsidiary; and (C) deliver to
the Agent such other documents as the Agent, individually or on behalf of the
Lenders, may have reasonably requested;
(ii) in any case, provide such other documentation to the Agent,
including, without limitation, one or more opinions of counsel satisfactory to
the Agent, environmental surveys, articles of incorporation, by-laws and
resolutions, which in the reasonable opinion of the Agent is necessary or
advisable in connection with such Acquisition or formation of such new
Subsidiary.
2.23. Liability of Grantor, Beneficiary or Trustee. The grantor or
Beneficiary or the Special Advisor of the Trust shall not be subject to any
personal liability whatsoever under the Loan Documents. The Loan Documents and
each representation, warranty, undertaking and agreement herein made on the
part of the Trust is made and intended not as a personal representation,
warranty, undertaking and agreement by the VHT Trustee or for the purpose or
with the intention of binding the VHT Trustee personally but is made and
intended for the purpose of binding only the trust estate held pursuant to the
Trust Agreement and this Agreement is executed and delivered by the VHT Trustee
solely in the exercise of the powers expressly conferred upon it as VHT
Trustee; and no personal liability or responsibility is assumed hereunder by
nor shall this Agreement at any time be enforceable against the VHT Trustee or
its successor in trust on account of this Agreement or any representation,
warranty, covenant, undertaking or agreement hereunder of the VHT Trustee,
either express or implied, all such personal liability, if any, being expressly
waived. Except as expressly provided in the preceding sentence, all liability
hereunder of the Trust shall be limited solely to recourse against the assets
of the trust estate held pursuant to the Trust Agreement or otherwise of the
Trust.
2.24. Application of Payments with Respect to Defaulting Lenders. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such
AMENDED AND RESTATED CREDIT AGREEMENT
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Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the
Agent is hereby authorized and directed by all parties hereto to hold such
funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Agent pursuant to
Section 2.1(c) and to the Issuer under Section 2.2.5; and
(ii) Second, to Loans required to be made by such Defaulting Lender on any
Borrowing Date to the extent such Defaulting Lender fails to make such Loans.
Notwithstanding the foregoing, upon the termination of the Aggregate Revolving
Credit Commitment 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 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
3.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the Borrowers
(excluding federal taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of taxation of payments
to any Lender in respect of its Loans or other amounts due it hereunder, or
(ii) 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
(iii) 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
AMENDED AND RESTATED CREDIT AGREEMENT
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such Lender,
then, within 15 days of demand by such Lender, the Borrowers shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received, without duplication of any other amount claimed pursuant to
this Section 3.1, which such Lender determines is attributable to making,
funding and maintaining its Loans and its Revolving Credit Commitments.
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 Borrowers shall pay such Lender the amount necessary, without
duplication of any other amount claimed pursuant to this Section 3.2, 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
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) 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 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 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, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and
require any Eurodollar Advances of the affected Type to be repaid.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Eurodollar
Interest Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrowers for any
reason other than default by the Lenders, the Borrowers will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any
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loss or cost in liquidating or employing deposits acquired to fund or maintain
the Eurodollar Advance.
3.5. Alternative Lending Installation; 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 Borrowers 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. Each Lender shall
deliver a written statement of such Lender to the Borrowers (with a copy to the
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 be final, conclusive and
binding on the Borrowers in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar 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 Borrowers of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2 and 3.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION
4.1. Effectiveness of Amendments. The amendments to the 1996 Credit
Agreement embodied in this Agreement shall become effective only upon receipt
by the Agent of all of the documents and other materials described below, with
sufficient copies for the Lenders, and satisfaction of all of the other
conditions set forth below, to wit:
(a) Copies of the articles of incorporation of each Borrower, and a
certificate of good standing, both certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of each
Borrower, of its by-laws and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution of the Loan Documents.
(c) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each Borrower, which shall identify by name and title and bear the
signature of the officers of each Borrower authorized to sign the Loan
Documents and to make borrowings hereunder, upon which
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certificate the Agent and the Lenders shall be entitled to rely until informed
of any change in writing by such Borrower.
(d) A certificate, signed by the chief financial officer of each Borrower,
stating that on the Effective Date no Default or Unmatured Default has occurred
and is continuing.
(e) A written opinion of the Borrowers' counsel, addressed to the Lenders,
in substantially the form of Exhibit F hereto.
(f) Notes payable to the order of each of the Lenders.
(g) Written money transfer instructions, in substantially the form of
Exhibit G hereto (to the extent required by the Agent), addressed to the Agent
and signed by an Authorized Officer, together with such other related money
transfer authorizations as the Agent may have reasonably requested.
(h) The Collateral Documents duly executed on behalf of the Borrowers, as
the case may be, or amendments thereto, confirming the continuing effectiveness
of such documents, granting to the Lenders and the Agent the collateral and
security intended to be provided pursuant to Section 2.22, together with (to
the extent not previously delivered in connection with the 1996 Credit
Agreement):
(i) Recordation, filing and other action (including payment of any
applicable taxes or fees) in such jurisdictions as the Lenders or the Agent may
deem necessary or appropriate with respect to the Security Documents, including
the filing of financing statements and similar documents which the Lenders or
the Agent may deem necessary or appropriate to create, preserve or perfect the
liens, security interests and other rights intended to be granted to the
Lenders or the Agent thereunder, together with Uniform Commercial Code record
searches in such offices as the Lenders or the Agent may request;
(ii) Policies of mortgage title insurance issued by an insurer and in
amounts satisfactory to the Lenders and the Agent, insuring the interest of the
Lenders and the Agent under the Mortgages without standard exceptions and
without any special exceptions not acceptable to the Lenders and the Agent and
containing such further endorsements, affirmative coverage and other terms as
the Lenders and the Agent may request;
(iii) Surveys of the property subject to the Mortgages made by a land
surveyor licensed in the State in which such property is located and acceptable
to the Lenders and the Agent complying with the Minimum Standard Detail
Requirements for Land Title Surveys as adopted by the American Title
Association and the American Congress on Surveying and Mapping and showing
AMENDED AND RESTATED CREDIT AGREEMENT
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such details as the Lenders and the Agent may request, certified to the Lenders
and the Agent and the issuer of such mortgage title insurance policy in form
acceptable to the Lenders and the Agent, or such surveys recertified by such a
surveyor sufficient to permit the issuers of all mortgage title insurance
policies to remove their standard exceptions;
(iv) A schedule setting forth all real property leased by each
Borrower, together with copies of the related leases, certified as true and
correct as of the Effective Date by a duly authorized officer of such Borrower,
and an agreement of each landlord under such leases, in form and substance
acceptable to the Lenders and the Agent, waiving its distraint, lien and
similar rights with respect to any property subject to the Security Documents
and agreeing to permit the Lenders and the Agent to enter such premises in
connection therewith;
(v) Evidence that the casualty and other insurance required pursuant
to the Loan Documents is in full force and effect; and
(vi) Appraisals of all real Property and equipment, in form reasonably
satisfactory to the Agent, performed by an appraiser approved by the Agent and
conforming to the requirements of the Financial Institutions Reform, Recovery
and Enforcement Act.
(i) The terms and provisions of the 1997 Senior Unsecured Notes and of the
other 1997 Senior Unsecured Debt Documents shall have been approved by the
Agent and the Lenders, which approval shall be deemed given upon delivery of
such Lender's signature page to this Agreement.
(j) The 1997 Senior Unsecured Debt Documents shall have been executed and
delivered by all parties thereto and shall be in full force and effect, the
Borrowers shall have issued and sold the 1997 Senior Unsecured Notes and
received not less than $205,000,000 less the amount of all fees and costs in
connection with such issuance and sale, and the Term Notes outstanding under
the 1996 Credit Agreement shall have been paid in full.
(k) Copies of all opinions delivered to or for the benefit of the holders
of the 1997 Senior Unsecured Notes or the Trustee under the Indenture pursuant
to which such Notes are issued.
(l) Copies of all governmental and nongovernmental consents, approvals,
authorizations, declarations, registrations or filings required on the part of
any Borrower in connection with the execution, delivery and performance of the
Loan Documents, or the transactions contemplated hereby or thereby or as a
condition to the legality, validity or enforceability of the Loan Documents,
certified as true and correct in full force and effect as of the Effective Date
by a duly authorized officer of the Borrowers, or if none are required, a
certificate of such officer to that effect;
(m) Payment of all fees owing by the Borrowers as of the Effective Date.
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(n) An Environmental Certificate executed by each Borrower together with
all environmental audits and reports required by the Agent.
(o) Evidence satisfactory to the Required Lenders that no Material
Adverse Effect has occurred since March 31, 1997.
(p) Delivery of such other agreements and documents, and the
satisfaction of such other conditions as may be required by the Agent,
including without limitation a subrogation and contribution agreement executed
by the Borrowers, such funding instructions, sources and uses certificate and
other certificates required by the Agent and such evidence of the perfection
and priority of all liens and security interests as required by the Agent.
4.2. Each Advance. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V of this
Agreement and the other representations and warranties contained in the Loan
Documents 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.
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrowers that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form of Exhibit H hereto
as a condition to making an Advance.
4.3. Withholding Tax Exemption. At least five Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to the Trust
and the Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or their equivalents, certifying in either case that
such Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes.
Each Lender which so delivers a Form 1001 or 4224 or their equivalents further
undertakes to deliver to the Trust and the Agent two additional copies of such
form (or a successor form) on or before the date that such form expires
(currently, three successive
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calendar years for Form 1001 and one calendar year for Form 4224 or their
equivalents) or becomes obsolete or after the occurrence of any event requiring
a change in the most recent forms so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably requested by the
Borrower or the Agent, in each case certifying that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required 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 advises the Trust and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Trust and its
Subsidiaries is a corporation or trust duly incorporated or organized as the
case may be, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
5.2. Authorization and Validity. The Borrowers and each Guarantor has the
corporate and trust power, as the case may be, and authority and legal right to
execute and deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by each Borrower and each Guarantor of
the Loan Documents to which it is a party and the performance of its
obligations thereunder have been duly authorized by proper corporate or trust
proceedings, and the Loan Documents constitute legal, valid and binding
obligations of each Borrower and each Guarantor enforceable against each
Borrower and each Guarantor 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 each Borrower and each Guarantor of the Loan Documents to which it is a
party, 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 Trust or any
of its Subsidiaries or the Trust's or any Subsidiary's articles of
incorporation or by-laws or Trust Agreement or the provisions of any indenture,
instrument or agreement to which the Trust or any
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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 in, of or on the Property of the Trust or
its Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other action
in respect of 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 December 31, 1996 and the March 31, 1997
consolidated financial statements of the Trust and its Subsidiaries 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 the Trust
and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
5.5. Material Adverse Change. Since March 31, 1997, there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Trust and its Subsidiaries which could have a
Material Adverse Effect.
5.6. Taxes. The Trust 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 due pursuant to said returns or pursuant to any
assessment received by the Trust 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 as to
which no Lien exists. The United States income tax returns of the Trust and
its Subsidiaries have been audited by the Internal Revenue Service as shown on
Schedule 5.6. No tax liens have been filed and no claims are being asserted
with respect to any such taxes. The charges, accruals and reserves on the
books of the Trust and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Other than as set forth on
Schedule 5.7, 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 Trust or any of its Subsidiaries which
could have a Material Adverse Effect or which seeks to prevent, enjoin or delay
the making of the Loans or Advances or which seeks to declare a default or
enforce any remedies under the 1994 Subordinated Debt Documents, and there is
no basis for any of the foregoing. The Trust 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. Schedule 5.8 hereto contains an accurate list of all
Subsidiaries of the
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Trust as of the date of this Agreement, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by the Trust or other Subsidiaries. All of the issued and
outstanding shares of capital stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $4,000,000 at any time within 10 days after the
Borrowers know of the amount of such Unfunded Liabilities. Neither the Trust
nor any other member of the Controlled Group has incurred, or is reasonably
expected to incur, any withdrawal liability to Multiemployer Plans. Each Plan
complies in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan, neither
the Trust nor any other members of the Controlled Group has withdrawn from any
Plan or initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Trust or any of its Subsidiaries to the Agent 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.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of those assets of the Trust and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements. Neither the Trust nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could have a Material Adverse Effect. Neither the
Trust nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.13. Compliance With Laws. Other than with respect to Environmental Laws
(which is addressed in Section 5.16), the Trust 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. Ownership of Properties. Except as set forth on Schedule 5.14
hereto, on the date of this Agreement, the Trust and its Subsidiaries will have
good title, free of all Liens other than those permitted by Section 6.15, to
all of the Property and assets reflected in the financial statements as
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owned by it.
5.15. Plan Assets; Prohibited Transactions. The Trust is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. 2510.3-101 of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of the Code);
and neither the execution of this Agreement and the making of Loans hereunder
do not give rise to a prohibited transaction within the meaning of Section 406
of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. All representations and warranties contained
in the Environmental Certificate are true and correct.
5.17. Investment Company Act. Neither the Trust nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Trust Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Trust nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
5.19. Subordinated Indebtedness. The Secured Obligations constitute
Senior Indebtedness, Permitted Indebtedness and Designated Senior Indebtedness
(and is hereby specifically designated as such) under the 1994 Subordinated
Debt Documents, and are entitled to all of the benefits of the subordination
provisions of the 1994 Subordinated Debt Documents. The incurrence of the
Secured Obligations is, and will at all times be incurred, in full compliance
with the 1994 Subordinated Debt Documents and the 1997 Senior Unsecured Debt
Documents and does not result in any event of default under the 1994
Subordinated Debt Documents or the 1997 Senior Unsecured Debt Documents, or any
event or condition which could result in such an event of default. Other than
the Secured Obligations and the 1997 Senior Unsecured Notes, there is no other
Designated Senior Indebtedness under the 1994 Subordinated Debt Documents.
Attached hereto as Schedule 5.19 is a true, correct and complete copy of the
1996 Subordinated Supplemental Indenture and any agreements executed in
connection therewith. The 1996 Subordinated Supplemental Indenture has not
been amended or modified and is in full force and effect and is binding upon
all holders of the 1994 Subordinated Debt. No Event of Default has occurred
and is continuing under the 1994 Subordinated Debt Documents or any event or
condition which could result in such an Event of Default.
5.20. Post-Retirement Benefits. The present value of the expected cost of
post-retirement medical and insurance benefits payable by the Trust and its
Subsidiaries to its employees and former
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employees, as estimated by the Trust in accordance with procedures and
assumptions deemed reasonable by the Required Lenders, does not exceed
$1,000,000.
5.21. Insurance. The certificate signed by the President or Chief
Financial Officer of the Trust, that attests to the existence and adequacy of,
and summarizes, the property and casualty insurance program carried by the
Trust and its Subsidiaries and that has been furnished by the Trust to the
Agent and the Lenders, is complete and accurate. This summary includes the
insurer's or insurers' name(s), policy number(s), expiration date(s), amount(s)
of coverage, type(s) of coverage, exclusion(s), and deductibles. This summary
also includes similar information, and describes any reserves, relating to any
self-insurance program that is in effect.
5.22. Solvency. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the making
of each Loan, if any, made on the date hereof and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Trust and the Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise,
of the Trust and the Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the property of the Trust and the Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Trust and the Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
the Trust and the Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Trust and the
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Trust does not intend to, or to permit any of its Subsidiaries
to, and does not believe that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
5.23 Labor Controversies. There are no labor controversies pending or, to
the best of the Trust's knowledge, threatened against the Trust or any
Subsidiary, which could have a Material Adverse Effect.
5.24 No Adverse Development. Since March 31, 1997, neither the
consolidated financial position nor the business as a whole of the Trust and
its Subsidiaries nor any substantial portion of the properties and assets of
the Trust and its Subsidiaries has been materially adversely affected as a
result of any legislative or regulatory change or of any fire, explosion, tidal
wave, flood,
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windstorm, earthquake, landslide, land subsidence, accident, condemnation or
governmental intervention, order of any court or governmental agency or
commission, technological development in the industries in which the company
and subpatent or patent license, act of God or of the public enemy or of armed
forces, rebellion, strike, labor disturbance or embargo, or otherwise, whether
or not insured against, which in the judgment of the Required Lenders might
impair materially the ability of the Borrowers to fulfill punctually its
obligations under this Agreement.
5.25 Burdensome Obligations. Neither the Trust nor any Subsidiary is a
party to or is bound by any agreement, deed, lease, or other instrument, or
subject to any charter, by-law or other corporate restriction which, in the
opinion of the management of the Trust, is so unusual or burdensome as in the
foreseeable future might cause a Material Adverse Effect. The Trust does not
presently anticipate that future expenditures needed to meet the provisions of
federal or state statutes, orders, rules or regulations will be so burdensome
as to affect or impair in a materially adverse manner the consolidated
financial condition, business, operations or property of the Trust.
5.26 Payment of Wages. Except as disclosed in Schedule 5.26 hereto, the
Trust and its Subsidiaries are in substantial compliance in all material
respects with the Fair Labor Standards Act, as amended, and have paid all
minimum and overtime wages required by law to be paid to its employees.
5.27 Intellectual Property. Set forth on Schedule 5.27 is a complete and
accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses (other than those
licenses implicit in purchase orders and supply agreements of customers and
suppliers) thereof, of the Trust and each of its Subsidiaries showing as of the
Effective Date the jurisdiction in which registered, the registration number
and the date of registration. The Trust and each of its Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, service marks, copyrights,
technology, know-how and processes necessary for the conduct of its business as
currently conducted (the "Intellectual Property") except for those the failure
to own or licenses which could not be reasonably be expected to have a Material
Adverse Effect. No claim has been asserted and is pending by any person
challenging or questioning the use by the Trust or any of its Subsidiaries of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Trust or any of its Subsidiaries know of
any valid basis for any such claim, the use of such Intellectual Property by
the Trust and each of its Subsidiaries does not infringe on the rights of any
Person, and, to the knowledge of the Trust, no such Intellectual Property of
the Trust and its Subsidiaries has been infringed, misappropriated or diluted
by any other Person except for such claims, infringements, misappropriation and
dissolution that, in the aggregate, could not have a Material Adverse Effect.
5.28 Other Representations. All representations and warranties contained
in the 1994 Subordinated Debt Documents and all representations and warranties
contained in the 1997 Senior
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Unsecured Debt Documents are true and correct except as disclosed on the
Schedules to this Agreement.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Trust will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public accountants,
acceptable to the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and the 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,
accompanied by (a) any management letter prepared by said accountants, and (b)
a certificate of said accountants that, in the course of their examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the nature
and status thereof.
(ii) Within 45 days after the close of the first three quarterly periods
of each of its fiscal years, for itself and the Subsidiaries, consolidated
unaudited balance sheets as at the close of each such period and consolidated
unaudited profit and loss and unaudited reconciliation of surplus statements
and an unaudited statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by its chief
financial officer.
(iii) Within 10 Business Days after the close of each fiscal month end, a
Borrowing Base Certificate prepared as of the close of business on the last day
of each month and such supporting schedules requested by the Agent, certified
as true and correct by an authorized officer of the Trust.
(iv) Upon request of the Agent, as soon as available and in any event
within 30 days after the end of each month, a report containing an aging as of
the end of the preceding month of accounts receivable and accounts payable of
the Trust and its Subsidiaries, in a form satisfactory to the Required Lenders,
and a report identifying the inventory of the Trust and its Subsidiaries, and
the cost and location thereof as of the end of the preceding month, in form
satisfactory to the Required
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Lenders.
(v) Promptly and in any event within 10 days after receipt, a copy of
any management letter or comparable analysis prepared by the auditors for the
Trust and its Subsidiaries.
(vi) Together with the financial statements required under Sections 6.1
(i) and (ii), a compliance certificate in substantially the form of Exhibit K
hereto signed by an authorized officer showing the calculations necessary to
determine compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof.
(vii) Within 270 days after the close of each fiscal year, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as correct by
an actuary enrolled under ERISA.
(viii) As soon as possible and in any event within 10 days after the Trust
or any Subsidiary knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the chief financial officer of the Trust,
describing said Reportable Event and the action which the Trust proposes to
take with respect thereto.
(ix) As soon as possible and in any event within 10 days after receipt by
the Trust or any Subsidiary, a copy of (a) any notice or claim to the effect
that the Trust or any of its Subsidiaries is or may be liable to any Person as
a result of the release by the Trust, any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Trust or any of its
Subsidiaries, which, in either case, could have a Material Adverse Effect.
(x) Promptly upon the furnishing thereof to the shareholders or
Beneficiary or trustees of the Trust or any holder of the 1994 Subordinated
Debt or the 1997 Senior Unsecured Notes or trustee therefor, copies of all
financial statements, reports, proxy statements and other documents so
furnished.
(xi) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which the
Trust or any of its Subsidiaries files with the Securities and Exchange
Commission.
(xii) Promptly and in any event within three calendar days after becoming
aware of the occurrence of a Default or an Unmatured Default, a certificate of
the chief financial officer of the Trust stating the nature and status thereof.
(xiii) Such other information (including non-financial information) as the
Agent or any
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Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Trust will, and will cause each Subsidiary to,
use the proceeds of the Revolving Credit Loans for working capital and other
corporate purposes. The Trust will not, nor will it permit any Subsidiary to,
use any of the proceeds of the Advances to purchase or carry any "margin stock"
(as defined in Regulation U).
6.3. Notice of Default. The Trust will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could have a Material Adverse Effect.
6.4. Conduct of Business. The Trust will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same fields of
enterprise as it is presently conducted and to do all things necessary to
remain duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted; provided, however, that any Domestic subsidiary may transfer its
jurisdiction of incorporation to another State of the United States of America.
6.5. Taxes. The Trust will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and 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 Trust will maintain fire and extended coverage
insurance on its and each Domestic Subsidiary's equipment and inventory
containing a lender's loss payable and breach of warranty clause in favor of
the Agent and providing that said insurance will not be terminated except after
at least 30 days' written notice from the insurance company to the Agent. The
certificate signed by the President or Chief Financial Officer of the Trust,
that attests to the existence and adequacy of (as comparable to insurance
customarily maintained by similar companies in the Trust's line of business),
and summarizes, the Property and casualty insurance program carried by the
Trust and that has been furnished by the Trust to the Agent and the Lenders, is
complete and accurate. This summary includes the insurer's or insurers'
name(s), policy number(s), expiration date(s), amount(s) of coverage, type(s)
of coverage, exclusion(s), and deductibles. This summary also includes similar
information, and describes any reserves, relating to any self-insurance program
that is in effect.
6.7. Compliance with Laws. The Trust will, and will cause each Subsidiary
to, comply
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with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject.
6.8. Maintenance of Properties. Except as to Property which is obsolete
or is not being used in the business or is to be replaced, the Trust will, and
will cause each Subsidiary to, do all things necessary to maintain, preserve,
protect and keep its Property in good repair, working order and condition, and
make all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times.
6.9. Inspection. The Trust will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records
of the Trust and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Trust and each Subsidiary, and to
discuss the affairs, finances and accounts of the Trust and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate.
6.10. Dividends. The Trust will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions of any kind
(including without limitation any distribution of assets) on its Capital Stock
(other than dividends payable in its own Capital Stock) or redeem, repurchase
or otherwise acquire or retire any of its Capital Stock at any time
outstanding, except that (i) any Subsidiary may declare and pay dividends or
make distributions to the Trust or to a Wholly-Owned Subsidiary, and (ii) the
Trust may make distributions to any Beneficiary of the Trust required to pay
the aggregate federal, state and local income and intangibles tax liability of
such Beneficiary attributable solely to earnings of the Trust, provided that
such amounts shall be paid only so long as the Trust is an entity described in
Section 1361(a)(1), 1361(c)(2) or 1361(d) of the Code and such distributions
may be made only as and when such tax liability of the Beneficiary is due (the
"Permitted Tax Distributions).
6.11. Indebtedness. The Trust will not, nor will it permit any Subsidiary
to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and Facility Letters of Credit.
(ii) Indebtedness existing on the date hereof and described in Schedule
6.11 hereto, but no increase in the amount thereof, as reduced from time to
time.
(iii) Indebtedness arising under Rate Hedging Agreements with Lenders.
(iv) Indebtedness incurred solely to refinance or replace any then
existing Indebtedness permitted hereunder, provided that such Indebtedness does
not in any case exceed the amount of
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existing Indebtedness refinanced or replaced and such existing Indebtedness is
paid and discharged to the extent of the new Indebtedness incurred.
(v) Indebtedness owing between Borrowers, between Guarantors and between
Borrowers and Guarantors, provided that such Indebtedness is evidenced by a
promissory note in form and substance satisfactory to the Agent and the Agent
has a first priority, perfected and enforceable lien and security interest in
such promissory note.
(vi) Indebtedness which is secured by Liens permitted pursuant to Section
6.15(vii).
(vii) Other Indebtedness in an aggregate amount at any one time
outstanding not to exceed $10,000,000.
6.12. Merger. The Trust will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a Subsidiary
may merge into the Trust or a Wholly-Owned Subsidiary.
Notwithstanding anything contained in this Agreement to the
contrary, the Trust is permitted to contribute all of the Equity Interests of
the Subsidiaries then held by the Trust (other than the Equity Interests of the
Subsidiary which is to receive such contribution from the Trust) to Venture
Holdings Corporation or any other successor to the Trust (as "Trust
Contribution") provided that (A) any successor or surviving corporation is
organized and existing under the laws of the United States, any state thereof
or the District of Columbia, (B) such contribution or reorganization is not
materially adverse to the Lenders; it being understood, however, that such
contribution or reorganization shall not be considered materially adverse to
the Lenders solely because the successor or surviving corporation is subject to
income taxation as a corporate entity, (C) immediately after giving effect to
such transaction, no Default of Unmatured Default exists, (D) the actions
comprising such contribution or reorganization (e.g., the contribution of stock
of the subsidiaries, or the issuance of stock of the corporation in exchange
for assets of or Equity Interests in the Trust or in exchange for stock of a
corporation holding such Equity Interests, or the merger or consolidation of
such corporations) will not themselves directly result in material income tax
liability to the successor or surviving corporation, (E) the successor or
surviving corporation has assumed all obligations of the Trust, pursuant to
agreements in a form reasonably satisfactory to the Agent and the lenders and
(F) the Lenders will not recognize income, gain or loss for federal or income
tax purposes as a result of such contribution or reorganization and will be
subject to federal income tax on the same amounts, in the same manner, and at
the same time as would have been the case if such contribution or
reorganization had not occurred. If the successor or surviving corporation
after a Trust Contribution is not a corporation described in Section 1361(a)(1)
of the Code, the Trust's ability to make Permitted Tax Distributions terminates
(except with respect to tax distributions in respect of taxable periods ending
on or prior to the date such contribution or reorganization is effective for
relevant tax
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purposes), other than tax distributions in respect of beneficiaries' income tax
liability that results from the actions comprising such contribution or
reorganization. The Trust shall deliver to the Agent prior to such
contribution or reorganization an officers' certificate covering paragraphs (A)
through (F) and the preceding sentence of this paragraph, stating that such
contribution or reorganization and such agreements comply with this Agreement,
and an opinion of counsel covering paragraphs (A), (D), (E) and (F) above and
the preceding sentence of this paragraph.
6.13. Sale of Assets. The Trust will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business and the sales
of obsolete material or equipment in the ordinary course of business.
(ii) Sales of equipment if 100% of the Net Cash Proceeds from the sale of
any such equipment are used within 360 days of such sale to purchase equipment
of comparable or greater value which is subject to the lien and security
interest of the Agent or are used to repay the Loans or, if there are no Loans
outstanding, to repay amounts outstanding under the 1997 Senior Unsecured Notes
(and such payment shall not be considered a Default under Section 6.17), and
permanently reduce the Revolving Credit Commitments by such amounts.
(iii) Transfers of assets between Borrowers, between Guarantors and
between Borrowers and Guarantors of assets.
(iv) Leases, sales or other dispositions of its Property that, together
with all other Property of the Trust and its Subsidiaries previously leased,
sold or disposed of (other than inventory in the ordinary course of business)
as permitted by this Section during the twelve-month period ending with the
month in which any such lease, sale or other disposition occurs, does not
exceed $10,000,000 in aggregate amount, provided that no such lease, sale or
other disposition may be made if any Default or Unmatured Default exists or
would be caused thereby.
(v) Any sale of assets by a Subsidiary if at least 85% of the total
consideration received for the sale consists of cash or its equivalent or a
like-kind exchange, and the Net Cash Proceeds of the sale are used within 360
days of such sale to purchase replacement assets of comparable or greater value
which are subject to the lien and security interest of the Agent or are used to
repay the Loans or, if there are no Loans outstanding to repay amounts
outstanding under the 1997 Senior Unsecured Notes (and such payment shall not
be considered a Default under Section 6.17), and permanently reduce the
Revolving Credit Commitments by such amounts.
6.14. Investments and Acquisitions. The Trust will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and
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other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint
venture, or to make any Acquisition of any Person, except:
(i) Short-term obligations of, or fully guaranteed by, the United States
of America.
(ii) Commercial paper rated A-l or better by Standard and Poor's Ratings
Group, a division of McGraw Hill, Inc. or P-l or better by Moody's Investors
Service, Inc.
(iii) Demand deposit accounts maintained in the ordinary course of
business.
(iv) Certificates of deposit issued by and time deposits with commercial
banks (whether domestic or foreign) having capital and surplus in excess of
$100,000,000.
(v) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 6.14 hereto.
(vi) Advances of Loans between Borrowers, between Guarantors and between
Borrowers and Guarantors, subject to the requirements of Section 6.11(v).
(vii) Capital contributions and loans by any of the Borrowers or
Guarantors to one or more of the other Borrowers or Guarantors.
(viii) Acquisitions of any Persons (including Investments made to
accomplish such Acquisitions) if (a) as of the end of the fiscal quarter of the
Trust immediately preceding any Acquisition and on a Pro Forma Basis,
satisfactory to the Agent, giving effect to the Acquisition, the Borrowers are
in compliance with all covenants contained in this Agreement and no Default or
Unmatured Default then exists, (b) the total consideration for the Acquisition
(including all indebtedness assumed) does not exceed $50,000,000 and (c) on a
Pro Forma Basis, satisfactory to the Agent, giving effect to the Acquisition,
the Borrowing Base exceeds all Indebtedness of the Borrowers outstanding under
this Agreement by not less than $15,000,000.
6.15. Liens. The Trust 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
Trust or any of its Subsidiaries, except:
(i) Liens for taxes, assessments, judgments 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 for which adequate reserves in accordance
with generally accepted principles of accounting shall have been set aside on
its books.
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(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 or
which are being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other encumbrances
or charges against real property as are of a nature generally existing with
respect to properties of a similar character and which do not in any material
way affect the marketability of the same or interfere with the use thereof in
the business of the Trust or the Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule 6.15
hereto but no increase in the amount secured thereby, as reduced from time to
time, and Liens granted in connection with any refinancing of such indebtedness
provided that the Liens are on the same assets and the indebtedness secured is
not increased.
(vi) Liens in favor of the Agent, for the benefit of the Lenders, granted
pursuant to any Collateral Document.
(vii) Any Lien to secure payment of a portion of the purchase price of any
tangible fixed asset acquired by any Borrower or any Guarantor may be created
or suffer to exist upon such fixed asset if the outstanding principal amount of
the Indebtedness is secured by such Lien does not at any time exceed the
purchase price paid for such fixed asset, provided that such Lien does not
encumber any other asset at any time owned by any Borrower or any Guarantor,
and provided, further, that not more than one such Lien shall encumber such
fixed asset at any one time.
6.16. Affiliates. Section 4.9 of the Indenture executed in connection
with the 1997 Senior Unsecured Debt Documents is hereby incorporated by
reference, including definitions of defined terms used in Section 4.9 of the
Indenture and definitions of defined terms used within such definitions, and
made a part of this Agreement to the same extent as if set forth fully herein
except that (i) references therein to "Issuers" shall be deemed references to
"Borrowers" as defined herein, (ii) references therein to "Guarantor" and
"Subsidiary" shall be deemed references to those terms as defined herein, and
(iii) reference to "Issue Date" shall be deemed references to "Effective Date".
6.17. Modification and Prepayment of Indebtedness. The Trust will not,
and will not permit any Subsidiary to, make any amendment or modification to
the indenture, note or other agreement evidencing or governing any Subordinated
Indebtedness, including without limitation any
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1994 Subordinated Debt Document, or any 1997 Senior Unsecured Debt Document or
any Indebtedness described in Schedule 6.11, which in any case would be adverse
to the Lenders or materially more burdensome to the Borrowers, or directly or
indirectly voluntarily prepay, defease or in substance defease, purchase,
redeem, retire or otherwise acquire, any Subordinated Indebtedness, including
without limitation the 1994 Subordinated Debt, or the 1997 Unsecured Notes, or
any Indebtedness described on Schedule 6.11; provided, however, that the
Borrowers may use the proceeds of Revolving Credit Loans to prepay the 1994
Senior Subordinated Debt Documents and the 1997 Senior Unsecured Debt Documents
if (i) no Default or Unmatured Default then exists or would be caused thereby,
as determined on a Pro Forma Basis acceptable to the Agent, and (ii) either (a)
the amount of the prepayment, together with all other prepayments of
Subordinated Debt subsequent to the Effective Date, does not exceed
$50,000,000, or (b) the Leverage Ratio as of the end of the last fiscal quarter
immediately preceding the date of such prepayment, and on the date of the
prepayment, does not exceed 3.25 to 1.0 and the amount of the prepayment,
together with all other prepayments of Subordinated Debt subsequent to the
Effective Date, does not exceed $100,000,000.
6.18. Sale of Accounts. The Trust will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse, other than a sale by the Trust to a
Wholly-Owned Subsidiary or by any Wholly-Owned Subsidiary to the Trust or to
another Wholly-Owned Subsidiary.
6.19. Contingent Obligations and Guarantees. The Trust 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), except (i) by endorsement of instruments for
deposit or collection in the ordinary course of business, (ii) any Guaranty and
any guaranty by the Trust or any of its Subsidiaries of Indebtedness of the
Trust or any of its Subsidiaries and (iii) Contingent Obligations described on
Schedule 6.19, but no increase in the amount thereof, as such amount is reduced
from time to time.
6.20. Financial Contracts. The Trust will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial Contract, except
Rate Hedging Agreements permitted under Section 6.11 and any other Financial
Contract not entered into for purpose of market speculation.
6.21. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries. The Trust will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Trust to pay dividends or
make other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Trust or any Subsidiary
of the Trust, except (a) restrictions imposed by this Agreement, (b)
restrictions imposed by applicable law, (c) existing restrictions under
Indebtedness outstanding on
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the Effective Date specified on Schedule 6.21, (d) restrictions under any
acquired Indebtedness not incurred in violation of this Agreement or any
agreement relating to any property, asset, or business acquired by the Trust or
any of its Subsidiaries, which restrictions in each case existed at the time of
an Acquisition, were not put in place in connection with or in anticipation of
such Acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property,
assets and business so acquired, (e) any such restriction or requirement
imposed by Indebtedness incurred under the 1994 Subordinated Debt Documents or
the 1997 Senior Unsecured Debt Documents provided such restriction or
requirement is not materially less favorable than that imposed by this
Agreement, (f) restrictions with respect solely to a Subsidiary of the Trust
imposed pursuant to a binding agreement which has been entered into for the
sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary, provided such restrictions apply solely to the
Equity Interests or assets of such Subsidiary, which are being sold, and (g) in
connection with and pursuant to permitted refinancing Indebtedness,
replacements of restrictions imposed pursuant to clauses (a), (c), (d) or (e)
of this paragraph that are not materially less favorable than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, customary provisions restricting subletting or
assignment of any lease entered into in the ordinary course of business,
consistent with industry practice shall not in and of themselves be considered
a restriction on the ability of the applicable Subsidiary to transfer such
agreement or assets, as the case may be.
6.22. Additional Covenants re: Indebtedness. Except for the agreements and
instruments described in Schedule 6.22, at any time any Borrower or any
Guarantor have or shall enter into or have or shall be a party to any
instrument or agreement, including all such instruments or agreements in
existence as of the date hereof and all such instruments or agreements entered
into after the date hereof, relating to or amending any terms or conditions
applicable to any of its Indebtedness which includes covenants, terms,
conditions or defaults not substantially provided for in this Agreement or more
favorable to the lender or lenders thereunder than those provided for in this
Agreement, then the Borrowers shall promptly so advise the Agent and the
Lenders. Thereupon, if the Agent shall request, upon notice to the Borrowers,
the Agent and the Lenders shall enter into an amendment to this Agreement or an
additional agreement (as the Agent may request), providing for substantially
the same covenants, terms, conditions and defaults as those provided for in
such instrument or agreement to the extent required and as may be selected by
the Agents. In addition to the foregoing, any covenants, terms, conditions or
defaults in the 1994 Subordinated Debt Documents or the 1997 Senior Unsecured
Debt Documents not substantially provided for in this Agreement, or more
favorable to the holders of the 1994 Subordinated Debt or the holders of the
1997 Senior Unsecured Notes, are hereby incorporated by reference into this
Agreement to the same extent as if set forth fully herein, and no subsequent
amendment waiver or modification thereof shall affect any such covenants,
terms, conditions or defaults as incorporated herein.
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6.23. Nature of Business. The Borrower will not, and will not permit any
of the Subsidiaries, to make or suffer any change in the nature of its business
from that engaged in on the Effective Date or engage in any other businesses
other than those in which it is engaged on the Effective Date.
6.24 Permitted Payments. Notwithstanding anything to the contrary in
Sections 6.10, 6.14, 6.17 and 6.19, the Trust and its Subsidiaries shall be
permitted to make any of the following "Permitted Payments", provided, that
they do not in the aggregate exceed the sum of (x) 50% of Consolidated Net
Income for the period commencing July 1, 1997 and ending on the last day of the
fiscal quarter of the Trust immediately preceding the transaction in question,
plus (y) $10,000,000:
(i) dividends or distributions by the Trust or its Subsidiaries in excess
of those otherwise permitted by Section 6.10;
(ii) Investments not otherwise permitted by Section 6.14;
(iii) prepayments of Indebtedness otherwise prohibited by Section 6.17
(other than mandatory prepayments caused by a Change of Control and permitted
pursuant to Section 2.18 and other than prepayments required by Section 6.13);
and
(iv) Contingent Obligations otherwise prohibited by Section 6.19.
6.25. Consolidated Net Worth. The Borrowers will maintain Consolidated
Net Worth at all times of not less than the sum of $51,000,000 plus 75% of the
consolidated net income (after taxes) of the Trust and its Subsidiaries, as
determined in accordance with the Agreement Accounting Principles, such 75% of
Consolidated Net Income to be added as of the end of each fiscal year of the
Trust, provided that if such income is negative in any fiscal year, the amount
added for such fiscal year shall be zero and it shall not reduce the amount to
be added for any other fiscal year.
6.26. Interest Coverage Ratio. The Borrowers will maintain an Interest
Coverage Ratio of at least (a) 2.25 to 1.0 as of June 30, 1997 and as of the
end of each fiscal quarter thereafter through the fiscal quarter ending
September 30, 1999, and (b) 2.50 to 1.0 as of December 31, 1999 and as of the
end of each fiscal quarter thereafter.
6.27. Fixed Charge Coverage Ratio. The Borrowers will maintain a Fixed
Charge Coverage Ratio of at least (a) 1.15 to 1.0 as of the end of each fiscal
quarter ending in 1997 and 1998, (b) 1.20 to 1.0 as of the end of each fiscal
quarter ending in 1999 and 2000 and (c) 1.25 to 1.0 as of the end of each
fiscal quarter thereafter.
6.28. Leverage Ratio. The Borrowers will maintain a ratio of consolidated
Indebtedness
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of the Trust and its Subsidiaries at such time to EBITDA, as calculated for the
four most recently ended quarters as of such time (provided that for the fiscal
quarter ended June 30, 1997, such EBITDA shall equal the product of EBITDA for
the ten consecutive months then ending times 1.2), of not more than (i) 4.25 to
1.0 at any time from and including the Effective Date to and including December
30, 1999, (ii) 4.0 to 1.0 at any time from and including December 31, 1999 to
and including December 30, 2001, and (iii) 3.75 to 1.0 on December 31, 2001,
and at any time thereafter.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Trust or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Loan, any Facility Letter of Credit, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any commitment fee or other obligations under any
of the Loan Documents within five days after the same becomes due.
7.3. The breach by the Trust or any of its Subsidiaries of any of the
terms or provisions of Article VI, other than Sections 6.1, 6.5, 6.7, 6.8, 6.15
and 6.22.
7.4. The breach by the Trust or any Subsidiary (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement which is not remedied within ten days after
written notice from the Agent.
7.5. Failure of the Trust or any of its Subsidiaries to pay when due any
Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness"); or
the default by the Trust or any of its Subsidiaries in the performance of any
term, provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event shall
occur or condition exist, the effect of which is to cause, or to permit the
holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Trust or any of its Subsidiaries shall be declared in
default or declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Trust or any of its Subsidiaries shall not pay, or
admit in writing its inability to pay, its debts generally as they become
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due.
7.6. The Trust or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it
or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal 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 its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors 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 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section
7.7.
7.7. Without the application, approval or consent of the Trust or any of
its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Trust or any of its Subsidiaries or any material
portion of its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against the Trust or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of the Trust and its Subsidiaries which,
when taken together with all other Property of the Trust and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation
occurs, constitutes a Substantial Portion.
7.9. The Trust 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 $5,000,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $4,000,000 or any Reportable Event shall occur in connection
with any Plan, in each case which is not remedied within ten days after written
notice from the Agent.
7.11. The Trust or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to
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Multiemployer Plans by the Trust or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such notification), exceeds
$1,000,000 or requires payments exceeding $1,000,000 per annum.
7.12. The Trust or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title
IV of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Trust and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $1,000,000.
7.13. The Trust or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the release by the Trust or any of
its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
7.14. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement or the Notes) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement or the Notes), which
default or breach continues beyond any period of grace therein provided.
7.15. Except as otherwise permitted hereunder, any Guaranty shall fail to
remain in full force or effect or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of any Guaranty, or any Guarantor
shall fail to comply with any of the terms or provisions of any Guaranty to
which it is a party, or any Guarantor denies that it has any further liability
under any Guaranty to which it is a party, or gives notice to such effect.
7.16. Any Collateral Document shall for any reason fail to create a valid
and perfected first priority security interest in any collateral purported to
be covered thereby, except as permitted by the terms of any Collateral
Document, or any Collateral Document 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 any Collateral Document, or the Trust or any Subsidiary
shall fail to comply with any of the terms or provisions of any Collateral
Document.
7.17. The representations and warranties set forth in "Section 5.15 Plan
Assets; Prohibited Transactions" shall at any time not be true and correct.
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7.18. The Trust or any Subsidiary shall fail to pay when due any amount
due under, or the breach by the Trust or any Subsidiary of any term, provision
or condition contained in, any Rate Hedging Obligation, operating lease Letter
of Credit, obligation under sale and leaseback transaction or Contingent
Obligation.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration.
(a) If any Default described in Section 7.6 or 7.7 occurs, (i) the
Revolving Credit Commitment shall automatically terminate and the Obligations
shall immediately become due and payable without presentment, demand, protest
or notice of any kind, all of which each Borrower hereby expressly waives and
without any election or action on the part of the Agent or any Lender and (ii)
each Borrower will be and become thereby unconditionally obligated, without the
need for demand or the necessity of any act or evidence, to deliver to the
Agent, at its address specified pursuant to Article XIII, for deposit into the
Letter of Credit Collateral Account, an amount (the "Collateral Shortfall
Amount") equal to the excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining
available to be drawn under the Facility Letters of Credit (assuming compliance
with all conditions for drawing thereunder) issued by Issuer outstanding as of
such time, over
(B) the amount on deposit in the Letter of Credit Collateral
Account at such time that is free and clear of all rights and claims of third
parties and that has not been applied by the Lenders against the Obligations.
(b) If any Default occurs and is continuing (other than a Default
described in Section 7.6 or 7.7), (i) the Required Revolving Credit Lenders may
terminate or suspend the Revolving Credit Commitments or (ii) the Required
Lenders may declare the Obligations to be due and payable, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which each Borrower hereby
expressly waives and (iii) the Required Lenders may, upon notice delivered to
the Borrowers and in addition to the continuing right to demand payment of all
amounts payable under this Agreement, make demand on the Borrowers to deliver
(and the Borrowers will, forthwith upon demand by the Required Lenders and
without necessity of further act or evidence, be and become thereby
unconditionally obligated to deliver), to the Agent, at its address specified
pursuant to Article XIII, for deposit into the Letter of Credit Collateral
Account an amount equal to the Collateral Shortfall Amount.
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(c) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
Agent may make demand on the Borrowers to deliver (and the Borrowers will,
forthwith upon demand by the Agent and without necessity of further act or
evidence, be and become thereby unconditionally obligated to deliver), to the
Agent as additional funds to be deposited and held in the Letter of Credit
Collateral Account an amount equal to such Collateral Shortfall Amount at such
time.
(d) The Agent may at any time or from time to time after funds are
deposited in the Letter of Credit Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time
have become due and payable by the Borrowers to the Lenders under the Loan
Documents.
(e) Neither any Borrower nor any Person claiming on behalf of or through
any Borrower shall have any right to withdraw any of the funds held in the
Letter of Credit Collateral Account. After all of the Obligations have been
indefeasibly paid in full, any funds remaining in the Letter of Credit
Collateral Account shall be returned by the Agent to the Borrowers or paid to
whoever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Agent accords its own
property, it being understood that the Agent shall not have any responsibility
for taking any necessary steps to preserve rights against any Persons with
respect to any such funds.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or any Borrower hereunder or
waiving any Default hereunder; provided, however, (a) no such supplemental
agreement shall, without the consent of the Required Revolving Credit Lenders,
allow any Borrower to obtain a Revolving Credit Loan or Facility Letter of
Credit if it would otherwise be unable to absent such supplemental agreement,
and (b) prior to any Lender other than NBD being a Lender hereunder, the
Borrowers will not unreasonably withhold their consent to any amendment to this
Agreement or any Loan Documents determined by the Agent as necessary to
syndicate a portion of the Revolving Credit Commitments and Advances hereunder
to additional Lenders, and provided, further, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Extend the maturity of any Loan or any Note or postpone any regularly
scheduled payment of principal 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.
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(ii) Reduce the percentage specified in the definition of Required Lenders
or Required Revolving Credit Lenders.
(iii) Extend the Termination Date or increase the amount of the Revolving
Credit Commitment of any Lender hereunder, or permit any Borrower to assign its
rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Borrower or any Guarantor or, except as provided in the
Collateral Documents, release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement. Notwithstanding anything herein to the
contrary, any Defaulting Lender shall not be entitled to vote (whether to
consent or to withhold its consent) with respect to any amendment,
modification, termination or waiver and, for purposes of the determining the
Required Lenders, the Revolving Credit Commitments and the Loans of such
Defaulting Lender shall be disregarded and the Agent shall have the ability,
but not the obligation, to replace any such Defaulting Lender with another
lender or lenders.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
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
any 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 Agent and the Lenders until the Obligations have been
paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
each Borrower and each Guarantor contained in this Agreement shall survive
delivery of the Notes 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 any
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal and state income taxes on the
overall net income of any Lender and intangible taxes) or other similar
assessments or charges made by any governmental or revenue authority in respect
of the Loan Documents shall be paid by any 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 Borrowers, the Guarantors, the Agent and the Lenders
and supersede all prior agreements and understandings among the Borrowers, the
Guarantors, the Agent and the Lenders relating to the subject matter thereof
other than any fee agreement described in Section 10.13.
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 extent to which the
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 Borrowers shall reimburse (i) the
Agent for any costs, internal charges and reasonable and documented
out-of-pocket expenses (including reasonable attorneys' fees and time charges
of attorneys for the Agent, which attorneys may be employees of the Agent) paid
or incurred by the Agent in connection with the preparation, review, execution,
delivery, amendment, modification and administration of the Loan Documents and
(ii) the Agent, the Issuer and the Lenders for any costs, internal charges and
reasonable and documented out-of-pocket expenses (including attorneys' fees and
time charges of attorneys for the Agent, the
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Issuer and the Lenders, which attorneys may be employees of the Agent, the
Issuer or the Lenders) paid or incurred by the Agent, the Issuer or any Lender
in connection with the collection and enforcement of the Loan Documents, any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or any insolvency or bankruptcy
proceedings in respect of the Trust or any Subsidiary. Expenses being
reimbursed by the Borrowers under this Section include, without limitation, the
cost and expense of obtaining an appraisal of each parcel of real Property or
interest in real Property described in the relevant Collateral Documents, which
appraisal shall be in conformity with the applicable requirements of any law or
any governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise
modified from time to time, and any rules promulgated to implement such
provisions. The Borrowers further agree to indemnify and hold harmless the
Agent, the Issuer, each 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 the Agent or any Lender is a
party thereto) arising at any time, and including without limitation due to any
actions or omissions before, on or after the Effective Date, which any of them
may pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the Bailey Acquisition, the Bailey Acquisition Documents, any other
Acquisition, any matters relating to any Environmental Laws with respect to any
property of any Borrower or any Guarantor, the transactions contemplated hereby
or thereby, or the direct or indirect application or proposed application of
the proceeds of any Advance hereunder, excluding any such losses, claims,
damages, penalties, judgments, liabilities and expenses which result from the
gross negligence or willful misconduct of the Agent, the Issuer or any Lender
as finally determined by a court of competent jurisdiction. The obligations of
the Borrowers 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 Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
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, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Trust and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Trust's
audited financial statements. In the event that the Borrowers or the Required
Lenders believe that there has been a change in generally accepted accounting
principles from those utilized in preparing the financial statements referred
to in Section 5.4 which materially affect (whether favorably or adversely)
compliance under Article VI of this Agreement, each of the Lenders and the
Borrowers agree to negotiate an amendment to
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this Agreement to bring the Borrowers into substantially the same compliance
with respect to Article VII immediately preceding such change in generally
accepted accounting principles. If no resolution of such item or items of
compliance is effected, the Borrowers and the Lenders agree, for the purposes
of the disputed item or items only, to determine compliance by using Agreement
Accounting Principles. The Trust will not change its fiscal year.
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 Borrowers and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrowers. Neither the Agent nor any Lender undertakes any responsibility to
the Borrowers to review or inform the Borrowers of any matter in connection
with any phase of any Borrower's business or operations. Each Borrower and
each Guarantor agree that neither the Agent nor any Lender shall have liability
to any Borrower or any Guarantor (whether sounding in tort, contract or
otherwise) for losses suffered by any Borrower or any Guarantor 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 the party from
which recovery is sought. Neither the Agent nor any Lender shall have any
liability with respect to, and each Borrower and each Guarantor hereby waives,
releases and agrees not to sue for, any special, indirect or consequential
damages suffered by any Borrower or any Guarantor in connection with, arising
out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans
provided for herein.
9.13. Confidentiality. Each of the Lenders and the Agent hereby agrees
that it will use reasonable efforts (e.g., procedures substantially comparable
to those applied by such Lender and the Agent in respect of non-public
information as to the business of such Lender or the Agent) to keep
confidential any financial reports and other information previously or from
time to time supplied to it by the Borrowers hereunder to the extent that such
information is not and does not become publicly available through or with the
consent or acquiescence of the Borrowers and will use such financial reports
and other information only in connection with the transactions contemplated by
this Agreement and for no other purpose, provided that nothing herein shall
affect
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the disclosure of any such information (i) by the Agent to any Lender,
(ii) to the extent required by law (including statute, rule, regulation or
judicial process), (iii) to counsel for any Lender, the Agent or to their
respective accountants, each of whom shall also be bound by the confidentiality
obligations set forth herein, (iv) to bank examiners and auditors and
appropriate government examining authorities, (v) to any Agent or to any other
Lender, (vi) to the extent necessary or appropriate in connection with any
litigation to which any Lender or the Agent is a party. A determination by a
Lender or the Agent as to the application of the circumstances described in the
foregoing clauses (i)-(v) shall be conclusive if made in good faith.
9.14 Limitation of Liabilities. Each Borrower (i) agrees that neither the
Agent nor any Lender shall have any liability to any Borrower or any of its
Subsidiaries (whether sounding in tort, contract or otherwise) for losses
suffered by any Borrower or any of its Subsidiaries 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 judgment of a
court that is binding on the Agent, or such Lender, and that is final and not
subject to review on appeal, that such losses were the result of acts or
omissions on the part of the Agent or such Lender, as the case may be,
constituting gross negligence, willful misconduct or knowing violations of law
and (ii) waives, releases and agrees not to sue upon any claim against the
Agent or any Lender (whether sounding in tort, contract or otherwise) except a
claim based upon gross negligence, willful misconduct or knowing violations of
law. Whether or not such damages are related to a claim that is subject to the
waiver effected above and whether or not such waiver is effective, neither the
Agent nor any Lender shall have any liability with respect to, and each
Borrower and each of its Subsidiaries hereby waives, releases and agrees not to
sue upon any claim for, any special, indirect or consequential damages suffered
by each Borrower or any of its Subsidiaries in connection with, arising out of,
or in any way related to the transactions contemplated or the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith.
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ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. NBD is hereby appointed by the
Lenders as the Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the 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. The Agent agrees to act as such
contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall have not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the 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, the 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 the 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. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no 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 the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for 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.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (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, except
receipt of items required to be delivered to the Agent; (iv) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other
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instrument or writing furnished in connection therewith; or (v) the value,
sufficiency, creation, perfection or priority of any interest in any collateral
security. The Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by any Borrower or any Guarantor to the
Agent at such time, but is voluntarily furnished by any Borrower to the Agent
(either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The 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 the Required Revolving Credit Lenders, as the case may be,
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 Notes. The
Lenders hereby acknowledge that the Agent shall be under no 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 or the Required Revolving Credit
lenders, as the case may be. The 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. The Agent may execute any of its
duties as 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. The 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. The Agent shall be entitled to rely
upon any 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 the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Revolving Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, in proportion to their Revolving Credit Commitments immediately
prior to such termination) (i) for any amounts not reimbursed by the Borrowers
for which the Agent is entitled to reimbursement by the Borrowers under the
Loan Documents, (ii) for any other expenses incurred by the Agent on behalf of
the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents
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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 the
Agent in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
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. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder
unless the Agent has received written notice from a Lender or a Trust referring
to this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the 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 the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is
a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The 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,
with the Trust or any of its Subsidiaries in which the Trust or such Subsidiary
is not restricted hereby from engaging with any other Person. The Agent, in
its individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrowers and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the 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 Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of
its intention to resign. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Borrowers and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning
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Agent's giving notice of its intention to resign, then the resigning Agent may
appoint, on behalf of the Borrowers and the Lenders, a successor Agent. If the
Agent has resigned and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrowers 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 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 Agent. Upon the effectiveness of the resignation
of the Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation 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 the Agent hereunder and under the
other Loan Documents.
10.13. Agent's Fee. The Borrowers agree to pay to the Agent, for its own
account, the fees agreed to by the Borrowers and the Agent from time to time.
10.14. Collateral Management. The Agent is hereby authorized on behalf of
all of the Lenders, without the necessity of any further consent from any
Lender, from time to time prior to an Event of Default, to take any action with
respect to the Collateral or the Collateral Documents which may be necessary
(i) to perfect and maintain perfected the security interest in and liens upon
the Collateral granted pursuant to the Security Agreement and the other
Collateral Documents; and (ii) to release portions of the Collateral from the
security interests and liens imposed by the Collateral Documents in connection
with any dispositions of such portions of the Collateral permitted hereby. In
the event that the Borrowers or Guarantors desire to sell or otherwise dispose
of any assets and such sale or disposition is permitted hereby, the Agent
shall, upon timely notice from the Borrowers, release such portions of the
Collateral from the security interests and liens imposed by the Collateral
Documents as may be specified by the Borrowers or Guarantors in order for the
relevant Borrower or Guarantor to consummate such proposed sale or disposition,
provided that at or prior to the time of such proposed sale or disposition no
Default or Unmatured Default shall have occurred and be continuing, including,
without limitation, any Unmatured Default or Default that would arise upon
consummation of such sale or disposition. For purposes of the preceding
sentence, the Borrowers shall give timely notice if, not less than two Business
Days prior to the date of such proposed sale or disposition, it shall furnish
to the Agent an officers' certificate setting forth in reasonable detail the
circumstances of such proposed sale or disposition.
10.15. Right to Indemnity. The Agent shall be fully justified in failing
or refusing to take any action hereunder unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability and
expense which may be incurred by it by reason of taking or
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continuing to take any such action.
10.16 Co-Agents. Each Co-Agent shall have all of the duties which may be
agreed upon or assigned to it from time to time by the Agent. In the event any
such duties are assigned to any Co-Agent, such Co-Agent shall be entitled to
the same indemnifications and other protections and held to the same standard
of care as provided in this Article X for the Agent.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Borrower or any Guarantor becomes
insolvent, however evidenced, or any Default occurs, 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 each Borrower and each
Guarantor may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion
of the Loans held by the other Lenders so that after such purchase each Lender
will hold its ratable proportion of Loans. 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.
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 Borrowers and
the Lenders and their respective successors and assigns, except that (i) no
Borrower shall have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in
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compliance with Section 12.3. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement and its Notes 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 Agent may treat the payee of any Note 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 Agent. Any assignee or
transferee of a 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 holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any 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 Note held by such Lender, any
Revolving Credit 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 Note for all
purposes under the Loan Documents, all amounts payable by the Borrowers under
this Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrowers and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under the Loan Documents.
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 Revolving Credit Commitment
in which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any such Loan
or Revolving Credit Commitment, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on, any such
Loan or Revolving Credit Commitment, releases any guarantor of any such Loan or
releases any substantial portion of collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff. Each Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in
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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 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, 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 or other entities ("Purchasers") all or any part of
its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit I hereto or in such other form as may be
agreed to by the parties thereto. The consent of the Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate thereof. Each such assignment shall be in an
amount not less than the lesser of (i) $5,000,000 or (ii) the remaining amount
of the assigning Lender's Revolving Credit Commitments (calculated as at the
date of such assignment) or such other amount agreed to by the Agent and, with
the consent of the Agent, such assignments may be of any one or more of the
Revolving Credit Commitments of any Lender.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit J hereto (a
"Notice of Assignment"), together with any consents required by Section 12.3.1,
and (ii) payment of a $4,500 fee to the Agent for processing such assignment,
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 Revolving Credit Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and shall have
all the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further consent or
action by the Borrowers, the Lenders or the Agent shall be required to release
the transferor Lender with respect to the percentage of the Aggregate Revolving
Credit 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 Agent and the Borrowers shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their Revolving Credit Commitment,
and in exchange for the existing Notes
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which are being replaced, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Trust and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.13 of this Agreement.
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 4.3.
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.13 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 any Borrower or the 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 below its signature hereto 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 Agent and the Borrowers. 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 Agent under Article II shall not be effective until received.
13.2. Change of Address. Any Borrower, the 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
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
14.1. 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 MICHIGAN.
14.2. CONSENT TO JURISDICTION. EACH BORROWER AND EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR MICHIGAN STATE COURT SITTING IN DETROIT IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION
THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWERS OR ANY GUARANTOR IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER OR ANY GUARANTOR AGAINST
THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DETROIT,
MICHIGAN.
14.3. WAIVER OF JURY TRIAL. EACH BORROWER, EACH GUARANTOR, THE AGENT AND
EACH LENDER HEREBY WAIVE 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.
ARTICLE XV
THE AMENDMENT AND RESTATEMENT
The following terms, conditions and covenants relate to this amendment and
restatement of
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the Credit Agreement:
15.1 Relationship of this Agreement to the 1996 Credit Agreement. This
Agreement shall become effective on the Effective Date. On the Effective Date,
the outstanding Advances shall be considered a part of the Advances under this
Agreement for all purposes, as if made in accordance with and pursuant to the
terms of this Agreement; provided; however, that Term Loan A and Term Loan B
outstanding under the 1996 Credit Agreement including all principal and accrued
interest, shall be paid in full on the Effective Date. On and after the
Effective Date, (i) no further fees shall accrue to the Agent or Lenders under
the 1996 Credit Agreement and all fees accrued to (but excluding) the Effective
Date under such agreement shall constitute accrued fees hereunder and be
payable in accordance with the terms hereof and (ii) the rights and obligations
of the parties hereto shall be governed solely by this Agreement, except in
respect of any rights or obligations arising prior to the Effective Date which
shall survive the Effective Date. All of the Advances and other Obligations
are a continuation of, or replace and refund, as the case may be, the
"Advances" and other "Obligations" under and as defined in the 1996 Credit
Agreement, and all Advances and other Obligations shall be entitled to, and are
secured by, the same Collateral with the same priority, as the "Advances" and
other "Obligations" under and as defined in the 1996 Credit Agreement. This
Agreement amends and restates in full the terms and provisions of the 1996
Credit Agreement and is not intended to constitute a novation or satisfaction
of or a renunciation or cancellation or other discharge or the indebtedness and
other liabilities and obligations created under and evidenced by the 1996
Credit Agreement.
15.2 Execution by Guarantors. The Guarantors, if any, are joining in the
execution of this Agreement for the purpose of acknowledging and agreeing to
the terms hereof and confirming the continued effect of the Guaranty with
respect to all of the Secured Obligations (including the additions thereto
pursuant to the amendments to the Credit Agreement incorporated herein), and
all other obligations to be observed or performed by the Guarantor in
connection with this Agreement.
15.3 References. Whenever the 1996 Credit Agreement is referred to in any
note, certificate, instrument or other document executed and delivered in
connection with the Credit Agreement, it shall be deemed to mean the Credit
Agreement as hereby amended and restated. In all other respects, the Credit
Agreement (as hereby amended and restated) and all notes, certificates,
instruments and other documents executed pursuant thereto shall remain in full
force and effect.
ARTICLE XVI
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall
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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 each Borrower, the Agent and Lenders and each
party has notified the Agent by telex or telephone, that it has taken such
action. Upon receipt of such notification by each of the other parties, the
Agent shall insert the Effective Date in the final paragraph of this Agreement.
AMENDED AND RESTATED CREDIT AGREEMENT
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have executed
this Agreement as of July __, 1997 which shall be the Effective Date.
VENTURE HOLDINGS TRUST
VEMCO, INC.
VENTURE INDUSTRIES CORPORATION
VENTURE MOLD & ENGINEERING
CORPORATION
VENTURE LEASING COMPANY
VEMCO LEASING, INC.
VENTURE HOLDINGS CORPORATION
VENTURE SERVICE COMPANY
By: /s/ James E. Butler
Print Name: James E. Butler
Title: Executive Vice President
of each of the above
listed entities
Address for notices for the Trust
and each other Borrower:
33662 James J. Pompo Dr.
Fraser, Michigan 48026
Attention: President
Telephone:(810) 294-1500
Telecopy:(810) 294-1960
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment NBD BANK, as a Lender and as Agent
$25,000,000
By: /s/ Erik W. Bakker
Print Name: Erik W. Bakker
Title: VP
611 Woodward Avenue
Detroit, Michigan 48226
Attention:
Telephone:(313) 225-2979
Telecopy:(313) 225-2290
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Revolving Credit Commitment THE FIRST NATIONAL BANK OF
$22,500,000 CHICAGO
By: /s/ Richard T. Jones
Print Name: Richard T. Jones
Title: Authorized Agent
One First National Plaza
Chicago, Illinois 60670-0429
Attention: Kenneth Selle
Telephone:(312) 732-9524
Telecopy:(312) 732-7455
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment BHF-BANK AKTIENGESELLSCHAFT,
$22,500,000 as a Lender and as a Co-Agent
By: /s/ Linda Pace /s/ Paul Traupis
Print Name: Linda Pace Paul Traupis
Title: Vice President Vice President
590 Madison Avenue, 30th Floor
New York, New York 10022
Attention: John Sykes
Telephone:(212) 756-5543
Telecopy:(212) 756-5536
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment THE BANK OF NOVA SCOTIA,
$22,500,000 as a Lender and as a Co-Agent
By: /s/ N.D. Smith
Print Name: N.D. Smith
Title: Agent Operations
Attention: P.L. Jackson
Sr. Loan Operations Officer
Telephone: (404)877-1539
Telecopy: (404)888-8998
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment THE HUNTINGTON NATIONAL BANK,
$22,500,000 as a Lender and as a Co-Agent
By: /s/ Robert Michael Prescott
Print Name: Robert Michael Prescott
Title: Vice President
41 S. High Street
Columbus, Ohio 43287
Attention: R. Michael Prescott
Telephone:(614) 480-4039
Telecopy:(614) 480-3698
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment NATIONAL BANK OF CANADA
$15,000,000
By: /s/ Duane K. Bedard
Print Name: Duane K. Bedard
Title: Vice President
Attention: R. Kim Fir
Vice President
Telephone: (248) 354-4800
Telecopy: (248) 354-1768
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment THE MITSUBISHI TRUST AND
$15,000,000 BANKING CORP., CHICAGO BRANCH
By: /s/ Aaki Yamagishi
Print Name: Mr. Aaki Yamagishi
Title: Chief Manager
311 S. Wacker Drive, Suite 6300
Chicago, Illinois 60606
Attention: Mr. Chris Strike
Telephone: (312) 408-6015
Telecopy: (312) 663-0863
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment THE LONG-TERM CREDIT BANK OF
$15,000,000 JAPAN, LTD.
By: /s/ Mark A. Thompson
Print Name: Mark A. Thompson
Title: Vice President & Deputy
General Manager
190 S. LaSalle Street, Suite 800
Chicago, Illinois 60603
Attention:
Telephone: (312) 704-5459
Telecopy: (312) 704-8505
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Revolving Credit Commitment BANK OF TOKYO-MITSUBISHI TRUST
$15,000,000 COMPANY
By: /s/ Nicholas J. Campbell, Jr.
Print Name: Nicholas J. Campbell, Jr.
Title: Vice President
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Attention: Nicholas J. Campbell, Jr.
Telephone: (212) 782-4265
Telecopy: (212) 782-4981
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment BANQUE FRANCAISE DU COMMERCE
$10,000,000 EXTERIEUR
By: /s/ Evan Kraus /s/ Kevin Dooley
Print Name: Evan Kraus Kevin Dooley
Title: Associate Vice President
645 Fifth Avenue, 20th Floor
New York, New York 10022
Attention: Evan Kraus
Telephone:(212) 872-5118
Telecopy:(212) 872-5045
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment IMPERIAL BANK
$10,000,000
By: /s/ Ray Vadalma
Print Name: Ray Vadalma
Title: Senior Vice President
9920 South LaCienega Blvd., Suite 1015
Inglewood, California 90301
Attention: John Farrace
Telephone:(310) 417-5676
Telecopy:(310) 417-5997
AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Commitment CITY NATIONAL BANK
$5,000,000
By: /s/ George Hayrapetian
Print Name: George Hayrapetian
Title: Vice President
Attention: George Hayrapetian
Telephone: (310)888-6114
Telecopy: (310)888-6152
AMENDED AND RESTATED CREDIT AGREEMENT
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