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EXHIBIT 4.e
MASCOTECH, INC.,
MASCOTECH ACQUISITION, INC.,
and
THE BORROWING SUBSIDIARIES,
as Borrowers
________________________________________________
$1,300,000,000
CREDIT AGREEMENT
dated as of January 16, 1998
______________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
BANK OF AMERICA NT&SA
and
NATIONSBANK, N.A.
as Syndication Agents
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Definitions. . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . .23
1.3 Other Definitions; Rules of Construction . . . . . . .24
ARTICLE II. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
TERMINATION OF EXISTING CREDIT AGREEMENT . . . . . . .24
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES . . . . . . .24
3.1 Revolving Loans . . . . . . . . . . . . . . . . . . .24
3.2 Term Loans . . . . . . . . . . . . . . . . . . . . . .25
3.3 Letters of Credit. . . . . . . . . . . . . . . . . . .25
3.4 Bid-Option Borrowings. . . . . . . . . . . . . . . . .29
3.5 Swing Line Loans . . . . . . . . . . . . . . . . . . .34
3.6 Alternate Currency Syndicated Loans. . . . . . . . . .35
3.7 Notice to Banks; Funding of Loans. . . . . . . . . . .37
3.8 The Notes. . . . . . . . . . . . . . . . . . . . . . .40
3.9 Certain Fees . . . . . . . . . . . . . . . . . . . . .40
3.10 Optional Termination or Reduction of Commitments . . .41
3.11 Mandatory Termination of Commitments . . . . . . . . .41
3.12 Borrowing Subsidiaries . . . . . . . . . . . . . . . .42
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC. . . . . . . . . . .42
4.1 Scheduled Principal Payments . . . . . . . . . . . . .42
4.2 Prepayments of Principal . . . . . . . . . . . . . . .43
4.3 Interest Payments . . . . . . . . . . . . . . . . . .45
4.4 Payment Procedures . . . . . . . . . . . . . . . . . .46
4.5 Computation of Interest and Fees . . . . . . . . . . .48
4.6 No Setoff or Deduction . . . . . . . . . . . . . . . .48
4.7 Types for all Loans. . . . . . . . . . . . . . . . . .48
4.8 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Loans . . . . . . . . .49
(A) Right to Convert. . . . . . . . . . . . . . . . .49
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(B) Automatic Conversion and Continuation . . . . . .49
(C) No Conversion After Default . . . . . . . . . . .49
(D) Conversion/Continuation Notice. . . . . . . . . .49
4.9 Other Provisions Applicable to Alternate Currency
Loans. . . . . . . . . . . . . . . . . . . . . . . . .49
ARTICLE V.
CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . .50
5.1 Impossibility; Interest Rate Inadequate or Unfair. . .50
5.2 Illegality . . . . . . . . . . . . . . . . . . . . . .50
5.3 Increased Cost; Yield Protection . . . . . . . . . . .51
5.4 Substitute Loans . . . . . . . . . . . . . . . . . . .54
5.5 Funding Losses . . . . . . . . . . . . . . . . . . . .54
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . .55
6.1 Corporate Existence and Power. . . . . . . . . . . . .55
6.2 Corporate Authority; No Violations; Governmental
Filings; Etc . . . . . . . . . . . . . . . . . . . . .55
6.3 Binding Effect . . . . . . . . . . . . . . . . . . . .56
6.4 Litigation . . . . . . . . . . . . . . . . . . . . . .56
6.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . .56
6.6 Financial Condition. . . . . . . . . . . . . . . . . .56
6.7 Compliance with ERISA. . . . . . . . . . . . . . . . .56
6.8 Environmental Matters. . . . . . . . . . . . . . . . .57
6.9 Compliance with Laws . . . . . . . . . . . . . . . . .57
6.10 Subordinated Debt. . . . . . . . . . . . . . . . . . .57
ARTICLE VII.
COVENANTS . . . . . . . . . . . . . . . . . . . . . .58
7.1 Financial Statements . . . . . . . . . . . . . . . . .58
7.2 Certificates of No Default and Compliance. . . . . . .59
7.3 Preservation of Corporate Existence, Etc.. . . . . . .60
7.4 Minimum Capitalization . . . . . . . . . . . . . . . .60
7.5 Fixed Charge Coverage Ratio. . . . . . . . . . . . . .60
7.6 Maximum Leverage Ratio . . . . . . . . . . . . . . . .61
7.7 Subsidiary Indebtedness. . . . . . . . . . . . . . . .62
7.8 Negative Pledge. . . . . . . . . . . . . . . . . . . .62
7.9 Dispositions of Assets; Mergers and Consolidations . .63
7.10 Changes in Subordinated Debt . . . . . . . . . . . . .64
7.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . .64
7.12 Fiscal Year. . . . . . . . . . . . . . . . . . . . . .64
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7.13 Compliance with Laws . . . . . . . . . . . . . . . . .64
7.14 Interest Rate Agreements . . . . . . . . . . . . . . .65
7.15 Restricted Payments. . . . . . . . . . . . . . . . . .65
7.16 Guaranties and Pledges . . . . . . . . . . . . . . . .65
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT
ISSUANCES. . . . . . . . . . . . . . . . . . . . . . .66
8.1 Each Borrowing and Letter of Credit Issuance . . . . .66
8.2 Initial Borrowing or Letter of Credit Issuance . . . .67
8.3 Closing . . . . . . . . . . . . . . . . . . . . . . .70
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . .71
9.1 Events of Default. . . . . . . . . . . . . . . . . . .71
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . .74
9.3 Set Off. . . . . . . . . . . . . . . . . . . . . . . .74
ARTICLE X.
THE AGENTS AND THE BANKS . . . . . . . . . . . . . . .75
10.1 Appointment and Authorization. . . . . . . . . . . . .75
10.2 Administrative Agent and Affiliates. . . . . . . . . .75
10.3 Scope of Agent's Duties. . . . . . . . . . . . . . . .75
10.4 Reliance by Administrative Agent . . . . . . . . . . .75
10.5 Default. . . . . . . . . . . . . . . . . . . . . . . .76
10.6 Liability of Administrative Agent. . . . . . . . . . .76
10.7 Nonreliance on Administrative Agent and Other Banks. .76
10.8 Indemnification. . . . . . . . . . . . . . . . . . . .77
10.9 Resignation of Administrative Agent. . . . . . . . . .77
10.10 Sharing of Payments. . . . . . . . . . . . . . . . . .78
10.11 Withholding Tax Exemption. . . . . . . . . . . . . . .78
10.12 The Syndication Agents and Arrangers . . . . . . . . .79
ARTICLE XI.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . .79
11.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . .79
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . .80
11.3 No Waiver By Conduct; Remedies Cumulative. . . . . . .81
11.4 Reliance on and Survival of Various Provisions . . . .81
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11.5 Expenses and Indemnification . . . . . . . . . . . . .81
11.6 Successors and Assigns . . . . . . . . . . . . . . . .83
11.7 Confidentiality. . . . . . . . . . . . . . . . . . . .86
11.8 Counterparts; Effectiveness of Telecopied Signatures .87
11.9 Table of Contents and Headings . . . . . . . . . . . .87
11.10 Construction of Certain Provisions . . . . . . . . . .87
11.11 Independence of Covenants. . . . . . . . . . . . . . .87
11.12 Interest Rate Limitation . . . . . . . . . . . . . . .87
11.13 Substitution of Banks. . . . . . . . . . . . . . . . .88
11.14 Governing Law. . . . . . . . . . . . . . . . . . . . .88
11.15 Integration and Severability . . . . . . . . . . . . .88
11.16 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . .89
11.17 Alternate Currency Addenda Binding on Each Bank;
Provisions Regarding Alternate Currency Agents . . . .89
11.18 Unification of Certain Currencies. . . . . . . . . . .89
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SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1 - Applicable Margin Chart
Schedule 2 - Certain Industrial Revenue Bonds (see Section 9.1(e) of
the Credit Agreement)
EXHIBITS
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - Form of Alternate Currency Syndicated Note
Exhibit B-1 - Form of Bid-Option Note
Exhibit B-2 - Form of Swing Line Note
Exhibit C-1 - Notice of Syndicated Borrowing
Exhibit C-2 - Notice of Swing Line Borrowing
Exhibit D - Request for Letter of Credit Issuance
Exhibit E - Bid-Option Quote Request
Exhibit F - Invitation for Bid-Option Quotes
Exhibit G - Bid-Option Quote
Exhibit H - Notice of Disbursement of Alternate Currency Loan
Exhibit I - Notice of Receipt of Alternate Currency Loan Payment
Exhibit J - Securities Purchase Agreement
Exhibit K - Assignment and Acceptance
Exhibit L - Notice of Substitution of Bank(s)
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Exhibit M - Opinion of Counsel for the Borrowers
Exhibit N - Opinion of Special New York Counsel for the Borrowers
Exhibit O - Terms of Subordination
Exhibit P-1 - Form of Alternate Currency Addendum for Pounds Sterling
Exhibit P-2 - Form of Alternate Currency Addendum for Deutsche Marks
Exhibit P-3 - Form of Alternate Currency Addendum for Italian Lire
Exhibit Q - Form of Guaranty
Exhibit R - Form of Pledge Agreement
Exhibit S - Form of Assumption Letter
Exhibit T - Conversion/Continuation Notice
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 16, 1998 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), is by
and among MASCOTECH, INC., a Delaware corporation (together with its
successors, "MascoTech"), MASCOTECH ACQUISITION, INC., a Delaware corporation
(together with its successors, "Acquisition"), any Borrowing Subsidiaries which
are now or may hereafter become a party hereto from time to time (each
individually a "Borrowing Subsidiary" and collectively, the "Borrowing
Subsidiaries") (MascoTech, Acquisition and each Borrowing Subsidiary referred
to individually as a "Borrower" and collectively as the "Borrowers"), the Banks
party hereto from time to time (collectively, the "Banks" and individually, a
"Bank"), The First National Bank of Chicago (the "Administrative Agent"), Bank
of America NT&SA and NationsBank, N.A. (the "Syndication Agents", and
collectively with the Administrative Agent, the "Agents"), and First Chicago
Capital Markets, Inc., BancAmerica Robertson Stephens, Inc., and NationsBanc
Montgomery Securities, Inc. (each individually an "Arranger" and collectively,
the "Arrangers").
RECITALS:
A. MascoTech, the Existing Banks (as hereinafter defined) and the
Existing Agent (as hereinafter defined) have entered into the Existing Credit
Agreement (as hereinafter defined), pursuant to which the Existing Banks
provided to MascoTech a revolving credit facility in the maximum aggregate
principal amount of $575,000,000 (the "Existing Bank Facility").
B. The Borrowers now desire to replace the Existing Bank Facility
under the Existing Credit Agreement with a new facility evidenced by this
Agreement which shall include a revolving credit facility in an aggregate
principal amount the Dollar Equivalent (as hereinafter defined) of which does
not exceed $800,000,000 and a term loan facility in an aggregate principal
amount the Dollar Equivalent of which does not exceed $500,000,000 to provide
funds (i) to refinance the Existing Bank Facility, (ii) to finance the purchase
of capital stock of TriMas Corporation, a Delaware corporation (the "Target"),
acquired pursuant to a tender offer by Acquisition announced December 11, 1997
(the "Tender Offer"), (iii) to finance the merger of the Target with
Acquisition (the "Merger") and (iv) to refinance the current credit facilities
of the Target.
C. The Banks are willing to provide such a replacement credit
facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
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ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, and in any
certificate, report, other agreement or other document made or delivered
pursuant to this Agreement, the following terms shall have the following
respective meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined unless the context otherwise
requires):
"Absolute Rate Dollar Bid-Option Borrowing" means any Borrowing
consisting of an Absolute Rate Dollar Bid-Option Loan.
"Absolute Rate Dollar Bid-Option Loan" means a Loan which pursuant to
the applicable Notice of Borrowing is made at the Bid-Option Absolute Rate.
"Acquired Debt" means, with respect to any Person who becomes a
Subsidiary after the Closing Date, Debt of such Person which was outstanding
before such Person became a Subsidiary and which was not created in
contemplation of such Person becoming a Subsidiary.
"Additional Bank" shall have the meaning ascribed thereto in Section
11.13(b).
"Adjusted Net Worth" means, as of any date, the sum of (a) Net Worth,
plus (b) the amount of all Subordinated Debt which by its terms matures at
least thirty days after the then existing Scheduled Expiration Date, plus (c),
at any time prior to March 31, 2002, the Available Masco Corporation Funding
Commitment, plus (d) (without duplication) the principal amount of any trust
convertible debt securities or similar securities issued by MascoTech.
"Affiliate", when used with respect to any Person, means any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Alternate Currency" means (i) so long as such currencies remain
Eligible Currencies, Pounds Sterling, Deutsche Marks and Italian Lire, (ii) any
other Eligible Currency which MascoTech requests the Administrative Agent to
include as an Alternate Currency hereunder and which is acceptable to
one-hundred percent (100%) of the applicable Alternate Currency Banks and with
respect to which an Alternate Currency Addendum has been executed among
MascoTech, one or more Alternate Currency Banks and an Alternate Currency Agent
in connection therewith; and, (iii) in the case of Alternate Currency
Bid-Option Loans, any currency acceptable to the applicable Bank.
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"Alternate Currency Addendum" means an addendum (i) substantially in
the form of Exhibit P-1, P-2 or P-3 (ii) or, in the case of any addendum
relating to a currency other than Pounds Sterling, Deutsche Marks and Italian
Lire, in such form as shall be approved by the Administrative Agent, in each
case entered into among MascoTech, one or more Alternate Currency Banks and an
Alternate Currency Agent.
"Alternate Currency Agent" means one or more entities (which may be the
Administrative Agent or its local affiliates), satisfactory to the
Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"Alternate Currency Bank" means any Bank (or any Affiliate, branch or
agency thereof) party to an Alternate Currency Addendum. If any agency or
Affiliate of a Bank shall be a party to an Alternate Currency Addendum, such
agency or Affiliate shall, to the extent of any commitment extended and any
Loans made by it, have all the rights of such Bank hereunder; provided,
however, that such Bank shall to the exclusion of such agency or Affiliate,
continue to have all the voting rights vested in it by the terms hereof.
"Alternate Currency Bid-Option Borrowing" means any Borrowing
consisting of an Alternate Currency Bid-Option Loan.
"Alternate Currency Bid-Option Loan" means a Bid-Option Loan made in an
Alternate Currency.
"Alternate Currency Bid-Option Percentage" means, with respect to any
Bank and any Alternate Currency Bid-Option Borrowing, the percentage of the
aggregate outstanding principal amount of all the Alternate Currency Bid-Option
Loans comprising such Borrowing represented by the outstanding principal amount
of the Alternate Currency Bid-Option Loan made by such Bank as part of such
Borrowing.
"Alternate Currency Borrowing" means any Borrowing consisting of a Loan
made in an Alternate Currency.
"Alternate Currency Commitment" means, for each Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Syndicated Loans not exceeding the Dollar Equivalent
set forth in the applicable Alternate Currency Addendum, as such amount may be
modified from time to time pursuant to the terms of this Agreement and the
applicable Alternate Currency Addendum.
"Alternate Currency Loan" means an Alternate Currency Bid-Option Loan
or an Alternate Currency Syndicated Loan.
"Alternate Currency Share" means, with respect to any Alternate
Currency Bank for any particular Alternate Currency, the percentage obtained by
dividing (A) such Alternate Currency Bank's
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Alternate Currency Commitment at such time as set forth in the applicable
Alternate Currency Addendum by (B) the aggregate of the Alternate Currency
Commitments at such time of all Alternate Currency Banks with respect to such
Alternate Currency as set forth in the applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Interest Period" means, with respect to
any Alternate Currency Syndicated Loan, the Interest Period as set forth on the
applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Loan" means any Loan denominated in an
Alternate Currency made by one or more of the Alternate Currency Banks to a
Borrower pursuant to Section 3.6 and an Alternate Currency Addendum.
"Alternate Currency Syndicated Note" means a promissory note of any
Borrower, substantially in the form of Exhibit A-3 attached hereto, evidencing
the obligation of such Borrower to repay Alternate Currency Syndicated Loans,
as amended or modified from time to time and together with any promissory note
or notes issued in exchange or replacement therefor.
"Applicable Facility Fee Rate" means, with respect to any Application
Period for Facility Fees, the percentage found in the applicable chart set
forth on Schedule 1 attached hereto by reading down the column of Leverage
Ratio ranges to the row for the range into which the Leverage Ratio as of the
relevant Determination Date falls. For the period from the Closing Date to but
excluding the date that occurs three months after the Closing Date, the
Applicable Facility Fee Rate shall be 0.25% per annum, and for the period from
and including the date that occurs three months after the Closing Date to but
excluding the date that occurs six months after the Closing Date, the
Applicable Facility Fee Rate shall not be less than 0.225% per annum.
"Applicable Lending Office" means, as to any Bank, its Domestic Lending
Office, Eurodollar Lending Office or any other office of such Bank or of any
Affiliate of such Bank selected and notified to the Borrowers and the
Administrative Agent as the applicable lending office for a particular Loan or
type of Loan by such Bank; provided that the Borrowers shall not be responsible
for the increase, if any, in costs hereunder that (a) are due to any Bank
changing its Applicable Lending Office with respect to a particular Loan or
type of Loan and (b) arise because of circumstances existing at the time of
such change.
"Applicable Margin" means, with respect to any Application Period for
Eurodollar Rate Syndicated Loans, Facility Fees and Letters of Credit, the
percentage found in the applicable chart set forth on Schedule 1 attached
hereto by reading down the column of Leverage Ratio ranges to the row for the
range into which the Leverage Ratio as of the relevant Determination Date
falls. For the purpose of this definition of the term "Applicable Margin", the
Leverage Ratio shall be calculated as prescribed in Section 7.6. For purposes
of this definition of the term "Applicable Margin", (a) the term "Application
Period" means a period commencing with and including the 60th day after the end
of the most recently completed fiscal quarter of the Borrowers to and including
the 59th day after the end of the next following fiscal quarter of the
Borrowers, (b) the term "Determination Date" means, with
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respect to any Application Period, the last day of the Determination Period
for such Application Period, (c) the term "Determination Period" means, with
respect to any Application Period, the period of four consecutive fiscal
quarters of the Borrowers ending with the fiscal quarter ending immediately
preceding such Application Period, and (d) any change in the Applicable Margin
during any Interest Period for any Syndicated Loan or applicable to any Letter
of Credit shall be effective as to such Syndicated Loan or such Letter of
Credit, as the case may be, upon such change in the Applicable Margin taking
effect pursuant to this definition. For the period from the Closing Date to
but excluding the date that occurs three months after the Closing Date, the
Applicable Margin shall be 0.875% per annum and for the period from and
including the date that occurs three months after the Closing Date to but
excluding the date that occurs six months after the Closing Date, the
Applicable Margin shall not be less than 0.775% per annum.
"Application Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Approximate Equivalent Amount" of any currency with respect to any
amount of Dollars shall mean the equivalent amount of such currency with
respect to such amount of Dollars calculated on the basis of the arithmetical
mean of the buy and sell spot rates of exchange of the Administrative Agent for
such other Alternate Currency at 11:00 a.m. (London time) two Business Days
prior to the date of determination for purposes of this Agreement (i) if such
currency is Pounds Sterling, Deutsche Marks or Italian Lire, rounded up to the
nearest 100,000 of such currency and (ii) if such currency is any other
Alternate Currency, rounded up to the nearest amount of such currency as
determined by the Administrative Agent from time to time.
"Arrangers" means First Chicago Capital Markets, Inc., BancAmerica
Robertson Stephens, Inc. and NationsBanc Montgomery Securities, Inc.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such
Person); provided that (i) a sale, lease, conveyance, disposition or other
transfer between or among MascoTech and any of its Consolidated Subsidiaries
shall not constitute an Asset Sale and (ii) any sale or other disposition of
any Cash or Cash Equivalents or any Marketable Securities shall not be
construed as an Asset Sale; and provided further that a sale of "margin stock"
(as defined in Regulation U of the Board of Governors of the Federal Reserve
System), to the extent that the value of such margin stock would exceed 25% of
the value of the assets of MascoTech and its Subsidiaries, shall not constitute
an Asset Sale.
"Assignment and Acceptance" is defined in Section 11.6(d).
"Assumption Letter" means a letter agreement of a Subsidiary of
MascoTech addressed to the Banks substantially in the form of Exhibit S hereto
pursuant to which such Subsidiary agrees to become a "Borrowing Subsidiary" and
agrees to be bound by the terms hereof.
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"Authorized Officer" means any of the chief executive officer, chief
financial officer, treasurer, controller, secretary, assistant treasurer or
vice president corporate counsel of MascoTech, acting singly.
"Available Masco Corporation Funding Commitment" means, as of any date,
any unused and available amount of the "Commitment" of Masco Corporation under,
and as defined in, the Securities Purchase Agreement, provided that such amount
for purposes of this definition shall not exceed $200,000,000, provided that
such "Commitment" relates only to the purchase by Masco Corporation of equity
securities of MascoTech or of Subordinated Debt of MascoTech.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA that is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by a Borrower or any ERISA
Affiliate of a Borrower.
"Bid-Option Absolute Rate" means, with respect to any Absolute Rate
Dollar Bid-Option Loan or Alternate Currency Bid-Option Loan, the Bid-Option
Absolute Rate, as defined in Section 3.4(d)(ii)(D), that is offered for such
Loan.
"Bid-Option Auction" means a solicitation of Bid-Option Quotes setting
forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins, as the
case may be, pursuant to Section 3.4(b).
"Bid-Option Eurodollar Rate" means the sum of (a) the Bid-Option
Eurodollar Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" means, with respect to any
Eurodollar Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as
defined in Section 3.4(d)(ii)(E), that is offered for such Loan.
"Bid-Option Interest Period" means (a) with respect to each Eurodollar
Rate Bid-Option Borrowing, the Eurodollar Rate Interest Period applicable
thereto, and (b) with respect to each Absolute Rate Dollar Bid-Option Borrowing
and Alternate Currency Bid-Option Borrowing, the period commencing on the date
of such Borrowing and ending on the date elected by the applicable Borrower in
the applicable Notice of Borrowing, which date shall be not less than 15 and
not more than 360 days after the date of such Borrowing; provided that:
(i) any such Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day; and
(ii) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
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"Bid-Option Loan" means a Loan which is made by a Bank pursuant to a
Bid-Option Auction.
"Bid-Option Note" means a promissory note of a Borrower in
substantially the form of Exhibit B-1 hereto evidencing the obligation of such
Borrower to repay Bid-Option Loans, as amended or modified from time to time
and together with any promissory note or notes issued in exchange or
replacement therefor.
"Bid-Option Quote" means an offer by a Bank to make a Bid-Option Loan
in accordance with Section 3.4(d).
"Bid-Option Quote Request" shall have the meaning ascribed thereto in
Section 3.4(b).
"Borrower" means, as applicable, MascoTech, Acquisition and their
respective successors and assigns and any Borrowing Subsidiary.
"Borrowing" means a borrowing hereunder consisting of Loans made to a
Borrower on a single date, of a single Type and currency and for a single
Interest Period.
"Borrowing Subsidiary" means any Borrowing Subsidiary duly designated
by MascoTech pursuant to Section 3.12 hereof to request Loans hereunder,
provided at least 95% of the Capital Stock of such Subsidiary is owned directly
or indirectly by MascoTech and such Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 3.12 and
such other documents, instruments and agreements as may be required pursuant to
the terms of this Agreement.
"Business Day" means any day on which commercial banks are open for
domestic and international business (including dealings in Dollar deposits) in
New York City and Chicago, Illinois and, with respect to Eurodollar Rate Loans
and the related Interest Periods, in London, and with respect only to Alternate
Currency Loans and the related Interest Periods, on which dealings in deposits
in the relevant Alternate Currency are carried out in the relevant interbank
market and in the principal financial center of the country issuing the
relevant Alternate Currency.
"Capital Expenditures" means, for any period, the aggregate amount of
capital expenditures of MascoTech and its Consolidated Subsidiaries during such
period, determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Capital Lease" of any Person means any lease which, in accordance with
generally accepted accounting principles, is required to be capitalized on the
books of such Person.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock and (iii) in the case of a partnership,
partnership interests (whether general or limited).
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"Cash and Cash Equivalents" means (a) all cash of MascoTech and its
Consolidated Subsidiaries on hand or on deposit, plus (b) cash equivalents as
determined in accordance with generally accepted accounting principles, plus
(c) all investments of MascoTech and its Consolidated Subsidiaries of the
following generally accepted accounting principles: (i) commercial paper of
any United States issuer having a rating of A1 or better by Moody's Investors
Service, Inc. or P1 or better by Standard & Poor's Ratings Group, (ii) direct
obligations of, and obligations fully guaranteed by, the United States of
America, and (iii) certificates of deposit of (A) any commercial bank which is
a member of the Federal Reserve System and which has capital, surplus and
undivided profits (as shown on its most recently published statement of
condition) aggregating not less than $100,000,000 or (B) any Bank, provided
that each of the foregoing investments has a maturity date not later than 180
days after the date of acquisition thereof by MascoTech or any of its
Consolidated Subsidiaries.
"Closing Date" means the first day on which the initial Borrowing under
this Agreement shall have occurred.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means, with respect to each Bank, its Revolving Credit
Commitment and its Term Loan Commitment.
"Consolidated" or "consolidated" refers to the consolidation of the
accounts of a Person and its Subsidiaries in accordance with generally accepted
accounting principles.
"Consolidated Subsidiary" of any corporation means any Subsidiary which
would be consolidated on the consolidated balance sheet of such corporation in
accordance with generally accepted accounting principles.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by The First National Bank of Chicago from time
to time, changing when and as said corporate base rate changes.
"Current Assets" means, at any time, the current assets of MascoTech
and its Consolidated Subsidiaries, determined as to amount and classification
on a consolidated basis in accordance with generally accepted accounting
principles.
"Debt" means (a) indebtedness for money borrowed; (b) the capitalized
portion of lease rentals under Capital Leases; (c) other indebtedness incurred
in connection with the acquisition of any real or personal property, stock,
debt or other assets (to the extent that any of the foregoing acquisition
indebtedness is represented by any notes, bonds, debentures or similar
evidences of indebtedness); and (d) obligations in respect of obligations or
indebtedness of others of the types referred to in each of the foregoing
clauses (a)-(c), for the payment of which MascoTech or any Consolidated
Subsidiary is
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directly or contingently liable, or which is secured by any property of
MascoTech or any Consolidated Subsidiary (whether or not MascoTech or any such
Consolidated Subsidiary is liable therefor); provided, however, any trust
convertible debt securities or similar securities issued by MascoTech shall not
be deemed to be Debt to the extent such securities are not treated as debt of
MascoTech in accordance with generally accepted accounting principles.
"Debt Securities" means any securities (as defined under the Securities
Act of 1933, as amended) evidencing Debt.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Determination Date" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Determination Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Deutsche Marks" or "DM" means the lawful money of the Republic of
Germany.
"Dollar Bid-Option Borrowing" means any Borrowing consisting of a
Dollar Bid-Option Loan.
"Dollar Bid-Option Loan" means a Bid-Option Loan made in Dollars.
"Dollar Bid-Option Percentage" means, with respect to any Bank and any
Dollar Bid-Option Borrowing, the percentage of the aggregate outstanding
principal amount of all the Dollar Bid-Option Loans comprising such Borrowing
represented by the outstanding principal amount of the Dollar Bid-Option Loan
made by such Bank as part of such Borrowing.
"Dollar Equivalent" means, as of any date, (a) with respect to any
amount of Dollars, the amount thereof, and (b) with respect to any amount of
any Alternate Currency, the amount of Dollars that could be purchased with such
amount of such Alternate Currency at the spot rate of exchange quoted by the
Administrative Agent at approximately 10:00 a.m. (Chicago time) on such date or
such number of Business Days before such date as may reasonably be deemed
necessary by the Administrative Agent for purposes of this Agreement.
"Dollars" and "$" shall mean the lawful money of the United States.
"Domestic Lending Office" means, as to any Bank, its office identified
on the signature pages hereof as its Domestic Lending Office or such other
office as such Bank may hereafter designate as its Domestic Lending Office.
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"Domestic Subsidiary" means a Subsidiary that is incorporated under the
laws of the United States of America or any State thereof.
"EBITDA" means, for any rolling four fiscal quarter period, on a
consolidated basis for MascoTech and its Consolidated Subsidiaries, the sum of
the amounts for such period, without duplication, of (i) Net Income for such
period, plus (ii) Interest Charges for such period, plus (iii) charges against
income for taxes (including the Michigan Single Business Tax) to the extent
deducted in computing Net Income during such period, plus (iv) depreciation
expense to the extent deducted in computing Net Income during such period, plus
(v) amortization expense, including without limitation, amortization of
goodwill and other intangible assets, and fees, costs and expenses in
connection with the Tender Offer and the Merger to the extent deducted in
computing Net Income during such period, plus (vi) other non-cash charges
(excluding any non-cash charges that require an accrual or reserve for cash
charges for any future period, other than accruals for future retiree medical
obligations, made pursuant to SFAS No. 87, No. 112 and No. 106, as amended or
modified) to the extent deducted in computing Net Income during such period,
minus (vii) extraordinary gains to the extent they are non-cash items and to
the extent included in computing Net Income during such period, plus (viii)
extraordinary losses to the extent they are non-cash items and to the extent
deducted in computing Net Income during such period; minus (ix) if EBITDA
Certain Items is positive, (a) zero, if EBITDA Certain Items is less than or
equal to $30,000,000 and (b) the amount by which EBITDA Certain Items exceeds
$30,000,000; plus (x) if EBITDA Certain Items is negative, the lesser of (a)
the absolute value of EBITDA Certain Items and (b) $30,000,000; provided
further that in the event MascoTech or any of its Consolidated Subsidiaries
acquires any corporation or business, EBITDA shall be calculated on a pro forma
basis (which, to the extent deemed reasonable to the Administrative Agent, may
include as pro forma adjustments, reasonable eliminations of excess
compensation (including salaries) and other adjustments that are attributable
to the change in ownership or management of the corporation or business) as if
MascoTech or such Subsidiary had owned the acquired corporation or business for
the four fiscal quarters preceding its acquisition.
"EBITDA Certain Items" is the sum (which may be positive or negative)
of (a) non-recurring and (without duplication) extraordinary gains to the
extent they are cash items and to the extent included in computing Net Income
during such period, plus (b) non-cash earnings from equity investments to the
extent included in computing Net Income during such period, minus (c)
non-recurring and (without duplication) extraordinary losses to the extent they
are cash items and to the extent included in computing Net Income during such
period, minus (d) non-cash losses from equity investments to the extent
included in computing Net Income during such period.
"Eligible Currency" means any currency other than Dollars that is
readily available, freely traded, in which deposits are customarily offered to
banks in the London interbank market, convertible into Dollars in the
international interbank market and as to which the Dollar Equivalent may be
readily calculated. If, (i) after the designation by the Administrative Agent
of any currency as an Alternate Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with
the result that different types of such currency are introduced, (ii) such
country's currency is, in the determination of the Administrative Agent, no
longer readily available or
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freely traded, or (iii) in the determination of the Administrative Agent, a
Dollar Equivalent for such country's currency is not readily calculable, then
the Administrative Agent shall promptly notify the Alternate Currency Agent and
MascoTech, and such country's currency shall no longer be an Alternate Currency
until such time as the Administrative Agent agrees to reinstate such country's
currency as an Alternate Currency and promptly, but in any event within five
(5) Business Days of receipt of such notice from the Administrative Agent, the
Borrowers with respect to such Alternate Currency shall repay all Loans in such
affected currency or convert such Loans into Loans in Dollars or an Alternate
Currency, as applicable, subject to the other terms contained in Articles III
and IV.
"Environmental Laws" means any and all applicable United States
federal, state and local statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to the environment or
to emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes or the
clean-up or other remediation thereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Borrower, are treated as a single
employer under Section 414(b), (c) or (m), or the regulations prescribed under
Section 414(o), of the Code.
"Euro" means the lawful currency adopted by the European Economic
Community.
"Eurodollar Base Rate" applicable to any Eurodollar Rate Interest
Period means the per annum rate obtained by dividing (a) the per annum rate of
interest at which deposits in Dollars for such Interest Period and in an
aggregate amount comparable to (i) in the case of Eurodollar Rate Syndicated
Loans, the amount of the related Eurodollar Rate Syndicated Loans to be made by
the Eurodollar Reference Banks in their capacity as Banks hereunder, and (ii)
in the case of Eurodollar Rate Bid-Option Loans, the aggregate amount of the
Eurodollar Rate Bid-Option Borrowing set forth in the related Bid-Option Quote
Request, are offered to the Eurodollar Reference Banks by other prime banks in
the London or Nassau interbank market, selected in the Eurodollar Reference
Banks' discretion, at approximately 11:00 a.m. London or Nassau time, as the
case may be, on the second Business Day prior to the first day of such
Eurodollar Rate Interest Period, by (b) an amount equal to
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19
one minus the stated maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that is specified on the first day of
such Eurodollar Rate Interest Period by the Board of Governors of the Federal
Reserve System (or any successor agency thereto) for determining the maximum
reserve requirement with respect to Eurodollar funding (currently referred to
as "Eurodollar liabilities" in Regulation D of such Board) maintained by a
member bank of such System; all as conclusively determined, absent manifest
error, by the Administrative Agent.
"Eurodollar Borrowing" means any Borrowing consisting of a Eurodollar
Rate Loan.
"Eurodollar Lending Office" means, as to any Bank, its office
identified on the signature pages hereof as its Eurodollar Lending Office or
such other branch (or Affiliate) of such Bank as such Bank may hereafter
designate as its Eurodollar Lending Office.
"Eurodollar Rate Bid-Option Borrowing" means any Borrowing consisting
of a Eurodollar Rate Bid-Option Loan.
"Eurodollar Rate Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Eurodollar Rate.
"Eurodollar Rate Interest Period" means, with respect to each
Eurodollar Rate Syndicated Loan, the period commencing on the date of such
Eurodollar Rate Syndicated Loan and ending one month, two months, three months,
four months, five months or six months thereafter, or twelve months if such
proposed twelve-month Eurodollar Rate Interest Period is specifically agreed
to by all Banks, and with respect to each Eurodollar Rate Bid-Option Loan, the
period commencing on the date of such Eurodollar Rate Bid-Option Loan and
ending on a date between fifteen days and twelve months thereafter, as a
Borrower may request in the applicable Notice of Borrowing; provided that:
(a) any such Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month
in which case such Interest Period shall end on the next preceding
Business Day;
(b) unless such Interest Period is for less than one month,
any such Interest Period that begins on the last Business Day of a
calendar month or on a day for which there is no numerically
corresponding day in the calendar month during which such Eurodollar
Interest Period is to end shall end on the last Business Day of such
calendar month; and
(c) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Eurodollar Rate" means with respect to a Eurodollar Rate Loan for the
relevant Interest
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Period, the Eurodollar Base Rate applicable to such Interest Period plus the
then Applicable Margin.
"Eurodollar Rate Loan" means any Eurodollar Rate Bid-Option Loan or
Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Eurodollar Rate.
"Eurodollar Rate Syndicated Revolving Loan" means a Syndicated
Revolving Loan which bears interest at the Eurodollar Rate.
"Eurodollar Reference Bank" means the principal London office of each
of The First National Bank of Chicago, Bank of America NT&SA and NationsBank,
N.A., or such other Eurodollar Reference Banks as may be appointed pursuant to
Section 11.6.
"Events of Default" has the meaning ascribed thereto in Section 9.1.
"Excess Cash Flow" means, for any period, (i) Net Income for such
period minus (ii) scheduled amortization payments of the principal portion of
all Debt (excluding the installment due January 31, 2002) with an original
maturity in excess of one year during such period minus (iii) the aggregate
amount of all dividends in respect of any preferred stock of MascoTech and its
Consolidated Subsidiaries up to an amount not to exceed $15,000,000 in any four
fiscal quarter period. Excess Cash Flow shall be calculated on a quarterly
basis on each Determination Date.
"Existing Agent" means NBD Bank, a Michigan banking corporation,
formerly known as NBD Bank, N.A., in its capacity as agent for the Existing
Banks.
"Existing Banks" means the banks that are parties to the Existing
Credit Agreement.
"Existing Bid-Option Loans" means the "Bid-Option Loans" (as defined in
the Existing Credit Agreement) outstanding on the Closing Date.
"Existing Commitment" means, with respect to each Bank, the amount, if
any, of such Bank's "Commitment" (as defined in the Existing Credit Agreement)
immediately prior to the Closing Date.
"Existing Credit Agreement" means the Credit Agreement dated as of
February 28, 1997, among MascoTech, the Existing Banks and the Existing Agent,
as amended, supplemented or otherwise modified, and as in force immediately
prior to the Closing Date.
"Existing Debt" shall have the meaning ascribed thereto in the
definition of the term "Senior Debt".
"Existing Notes" means the "Notes" (as defined in the Existing Credit
Agreement) held by the
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Existing Banks under the Existing Credit Agreement.
"Facility Fees" means the facility fees payable pursuant to Section
3.9(a).
"Federal Funds Rate" means, as of any day, the per annum rate that is
equal to the average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published by the Federal Reserve Bank of New York for such day (or, in the case
of any day on which the federal funds market is not open, for the immediately
preceding day on which it was open), or, if such rate is not so published for
any day (or, in the case of any day on which the federal funds market is not
open, for the immediately preceding day on which it was open), the average of
the quotations for such rates received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the Administrative
Agent in its discretion; all as conclusively determined, absent manifest error,
by the Administrative Agent, such average to be rounded up, if necessary, to
the nearest whole multiple of one-hundredth of one percent (1/100 of 1%); which
Federal Funds Rate shall change simultaneously with any change in such
published or quoted rates.
"Financing" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Debt Securities of
such Person other than (i) any Equity Interests or Debt Securities issued to
MascoTech or any of its Subsidiaries, (ii) any Equity Securities issued in
connection with any employee stock option, employee stock award or any related
benefit plan, (iii) any Debt Securities issued by any Subsidiary to the extent
permitted under Section 7.7 and (iv) any Debt Securities secured by a Lien
permitted pursuant to Section 7.8(c) or (f).
"Fixed Charge Coverage Ratio" has the meaning ascribed thereto in
Section 7.5.
"Fixed Rate Loan" means any Eurodollar Rate Syndicated Loan, Alternate
Currency Syndicated Loan or Bid-Option Loan.
"Floating Rate" means, with respect to any Floating Rate Loan, the
greater of (a) the Corporate Base Rate and (b) the per annum rate equal to the
sum of (i) one-half percent (1/2%) plus (ii) the Federal Funds Rate; which
Floating Rate shall change simultaneously with any change in such Corporate
Base or Federal Funds Rate, as the case may be.
"Floating Rate Borrowing" means any Borrowing consisting of a Floating
Rate Loan.
"Floating Rate Loan" means a Loan which pursuant to the applicable
Notice of Borrowing is made at the Floating Rate.
"Floating Rate Revolving Loan" means a Revolving Loan which bears
interest at the Floating Rate.
"Floating Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Floating
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Rate.
"Indemnified Person" shall have the meaning ascribed thereto in Section
11.5(a) hereto.
"Interest Charges" means, for any period, the sum of interest that is
expensed (or, under generally accepted accounting principles, would be
expensed) during such period by MascoTech and its Consolidated Subsidiaries on
Debt of MascoTech and its Consolidated Subsidiaries, including any interest
expense in connection with any trust convertible debt securities issued by
MascoTech to the extent it is treated as interest expense in accordance with
generally accepted accounting principles.
"Interest Payment Date" means, with respect to each Floating Rate Loan,
the last Business Day of each month, with respect to each Swing Line Loan, the
date such Loan is repaid, and with respect to each other Loan, the last day of
each Interest Period with respect to such Loan and, in the case of any Interest
Period exceeding (a) with respect to Eurodollar Rate Loans and the Alternate
Currency Syndicated Loans, three months or (b) with respect to Absolute Rate
Dollar Bid-Option Loans, ninety days, those days that occur during such
Interest Period at intervals of three months and ninety days, respectively,
after the first day of such Interest Period.
"Interest Period" means any Eurodollar Rate Interest Period, Bid-Option
Interest Period or Alternate Currency Syndicated Interest Period; provided,
however, notwithstanding anything in this Agreement to the contrary for the
period from the Closing Date to the earlier of (x) the date that is 90 days
after the Closing Date and (y) the date 30 days after the date upon which the
Arrangers confirm that the loan syndication process has been complete but not
later than March 15, 1998 (the "Syndication Period"), "Interest Period" means,
with respect to a Eurodollar Rate Loan (except as the Administrative Agent
otherwise approves), a period of seven (7) or fourteen (14) days.
"Invitation for Bid-Option Quotes" means an Invitation for Bid-Option
Quotes in the form referred to in Section 3.4(c).
"Italian Lire" means the lawful money of Italy.
"Letter of Credit" shall mean a standby letter of credit issued for the
account of MascoTech or any of its Consolidated Subsidiaries pursuant to this
Agreement.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(f).
"Letter of Credit Issuance" shall mean any issuance by the
Administrative Agent of a Letter of Credit pursuant to Section 3.3.
"Letter of Credit Obligations Amount" means, as of any date, the
amount equal to the sum of (a) the maximum aggregate amount available to be
drawn under all outstanding Letters of Credit at any time on or before the
stated expiry date thereof, plus (b) the amount of any draws under all Letters
of Credit that have not been reimbursed as provided in Section 3.3(e).
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"Leverage Ratio" has the meaning ascribed thereto in Section 7.6.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
security interest or similar encumbrance in respect of such asset; provided
that a subordination agreement shall not be deemed to create a Lien. For the
purposes of this Agreement, MascoTech or any Consolidated Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other similar title retention agreement relating to
such asset.
"Loan" means any (a) Swing Line Loan or (b) Term Loan or (c) Revolving
Loan or (d) Bid-Option Loan or (e) Alternate Currency Loan.
"Marketable Securities" means any securities which are marketable
securities included in current assets in accordance with generally accepted
accounting principles and any future or forward contracts related thereto.
"Masco Corporation" means Masco Corporation, a Delaware corporation.
"Masco Group" means Masco Corporation or any Person who, on the date
hereof, is an Affiliate of Masco Corporation or who hereafter becomes an
Affiliate controlled by Masco Corporation.
"Material Adverse Change" means any event, occurrence, development or
state of circumstances or facts which has had or has a reasonable probability
of having, individually or in the aggregate, a material adverse effect on
MascoTech and its Consolidated Subsidiaries (including the Target and its
Consolidated Subsidiaries, to the extent the Target is owned by MascoTech or
Acquisition, which, with respect to the funding to purchase the shares of the
Target acquired pursuant to the Tender Offer, would take into effect the shares
to be purchased) taken as a whole.
"Merger" means the merger of the Target and Acquisition pursuant to the
Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger
dated as of December 10, 1997, as amended by Amendment No. 1 dated as of
December 15, 1997 and Amendment No. 2 dated as of January 13, 1998, among
Target, MascoTech and Acquisition.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto. Any rating or change in rating given by Moody's shall be deemed
effective, and in effect, when publicly announced by Moody's.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which a Borrower or any
ERISA Affiliate is then making, or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions or has
within the preceding five plan years made contributions, including for these
purposes any Person
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which ceased to be an ERISA Affiliate during such five-year period.
"Net Cash Proceeds" means, with respect to any Asset Sale or any
Financing by any Person, (a) cash (freely convertible into Dollars) received
by such Person or any Subsidiary of such Person from such Asset Sale or such
Financing (or, in the case of a Receivables Sale, the Receivables Sale Amount
with respect to such Receivables Sale), after (i) provision for all income or
other taxes measured by or resulting from such Asset Sale, (ii) payment of all
brokerage commissions and other fees and expenses related to such Asset Sale or
such Financing, and (iii) all amounts used to repay Debt secured by a Lien on
any asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Debt) to be repaid in connection
with such Asset Sale (including payments made to obtain or avoid the need for
the consent of any holder of such Debt); and (b) cash payments in respect of
any other consideration received by such Person or any Subsidiary of such
Person from such Asset Sale upon receipt of such cash payments by such Person
or such Subsidiary.
"Net Income" means, for any period, the consolidated net income of
MascoTech and its Consolidated Subsidiaries (after deduction for income and
other taxes of MascoTech and its Consolidated Subsidiaries determined by
reference to income or profits of MascoTech and its Consolidated Subsidiaries)
for such period, all as determined in accordance with generally accepted
accounting principles.
"Net Worth" means, as of any date, (a) the amount of total
shareholders" equity of MascoTech and its Consolidated Subsidiaries on such
date, determined on a consolidated basis in accordance with generally accepted
accounting principles, minus (or, if the amount determined pursuant to the
following clause (b) is negative, plus the absolute amount thereof) (b) to the
extent included in total shareholders' equity the amount of the foreign
currency translation adjustment account, plus (c) the amount of the foreign
currency translation adjustment account shown on the consolidated balance sheet
of MascoTech and its Consolidated Subsidiaries dated September 30, 1997, which
amount is $4,520,000.
"New Debt" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Note" means any Revolving Note, Term Loan Note, Bid-Option Note or
Swing Line Note or any note issued to evidence the Alternate Currency Loans.
"Notice of Bid-Option Borrowing" shall have the meaning ascribed
thereto in Section 3.4(f).
"Notice of Borrowing" means any Notice of Syndicated Borrowing or
Notice of Bid-Option Borrowing or Notice of Swing Line Borrowing.
"Notice of Syndicated Borrowing" shall have the meaning ascribed
thereto in Section 3.7(a).
"Overdue Rate" means (a) in respect of the principal of any Loan, the
rate per annum that is
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equal to the sum of two percent (2%) per annum plus the per annum rate
otherwise applicable to such Loan until the end of the then current
Interest Period for such Loan and, thereafter, a rate per annum that is equal
to the sum of two percent (2%) per annum plus the Floating Rate; and (b) in
respect of other amounts payable by the Borrowers hereunder (other than
interest), a per annum rate that is equal to the sum of two percent (2%) per
annum plus the Floating Rate.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, corporation, partnership, joint venture,
trust, association, limited liability company or unincorporated organization,
or a government or any agency or political subdivision thereof.
"Plan" means at any time any employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained, or contributed to, by a Borrower or any ERISA Affiliate for
employees of such Borrower or any ERISA Affiliate, or (b) has at any time
within the preceding five years been maintained, or contributed to, by a
Borrower or any Person which was at such time an ERISA Affiliate for employees
of such Borrower or any Person which was at such time an ERISA Affiliate.
"Pounds Sterling" means the lawful money of the United Kingdom.
"Pro Rata Share" means, with respect to any Bank, the percentage
obtained by dividing (a) such Bank's Revolving Credit Commitment at such time
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement) plus the outstanding balance of such Bank's Term Loans by
(b) the aggregate amount of all of the Revolving Credit Commitments at such
time plus the outstanding principal balance of all of the Term Loans; provided,
however, if all of the Revolving Credit Commitments are terminated pursuant to
the terms of this Agreement, then "Pro Rata Share" means the percentage
obtained by dividing (x) the sum of such Bank's Revolving Loans and Term Loans
by (y) the aggregate amount of all Revolving Loans and Term Loans.
"Receivables Sale" means any Asset Sale consisting of the sale of
accounts or notes receivable and associated assets, other than any such sale in
bulk as part of a sale or other disposition of all or substantially all of the
assets or stock of any Person or of any principal division or lines of business
of any Person.
"Receivables Sale Amount" means in the case of a single sale of
receivables, the cash proceeds received by the transferor, and, in the case of
a revolving receivables sales facility, the cash proceeds received by the
seller representing incremental new funding in excess of any previous level of
funding made available under such facility, net of repayments of Debt or
repurchases under, or proceeds otherwise required to refinance, any previous
receivables sales facility.
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"Reference Bank" means any Eurodollar Reference Bank.
"Refunded" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds of such Borrowing, results in no net increase in the Dollar Equivalent
of the aggregate outstanding principal amount of the Loans made by any Bank.
"Reimbursement Amount" shall have the meaning ascribed thereto in
Section 3.3(e).
"Request for a New Alternate Currency Facility" shall have the meaning
ascribed thereto in Section 3.6(b).
"Request for Letter of Credit Issuance" shall have the meaning ascribed
thereto in Section 3.3(b).
"Required Banks" means Banks having not less than 51% of the aggregate
amount of the Commitments or, if the Commitments have terminated, Banks holding
Notes evidencing not less than 51% of the aggregate unpaid principal amount of
the Loans.
"Restricted Payment" means, without duplication, (i) any dividend or
other distribution on account of any Equity Interest of MascoTech now or
hereafter outstanding, (ii) any redemption, retirement, purchase or other
acquisition for value of any Equity Interests of MascoTech now or hereafter
outstanding, (iii) any redemption, purchase, retirement, defeasance, prepayment
or other acquisition for value, direct or indirect, of any Subordinated Debt or
any trust convertible debt securities or similar securities to the extent such
securities are not treated as debt of MascoTech in accordance with generally
accepted accounting principles, in each case prior to the stated maturity
thereof or (iv) an amendment or modification of any term or provision of any
instrument or agreement relating to any Subordinated Debt such that it would
not constitute Subordinated Debt as defined in this Agreement or would mature
or any principal payment thereunder would be due prior to the Termination Date,
but in the case of any of the foregoing shall exclude issuances of, or
purchases of, Equity Interests, or the payment of dividends, in connection with
employee stock option, employee stock award or any related benefit plans.
"Revolving Credit Commitment" means, with respect to each Bank whose
commitment has not been terminated pursuant to Section 11.13, the commitment of
such Bank to make Revolving Loans pursuant to Section 3.1, to participate in
the risk of Letters of Credit pursuant to Section 3.3 and to participate in the
risk of the Swing Line Loans pursuant to Section 3.5 and Alternate Currency
Loans pursuant to Section 3.6 in an aggregate principal amount the Dollar
Equivalent of which does not exceed (a) in the case of each Bank originally a
party hereto, the amount set forth opposite the name of such Bank on the
signature pages hereof, and (b) in the case of each Bank becoming a party
hereto in accordance with Section 11.6(d) or 11.13, the aggregate amount
assigned to it, in each case (i) less the aggregate amount, if any,
subsequently assigned by it in accordance with Section 11.6(d), (ii) plus the
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aggregate amount, if any, subsequently assigned to it under Section 11.6(d)
or 11.13 and (iii) subject to activation pursuant to Section 3.1, and as such
amount may be reduced from time to time pursuant to Section 3.10.
"Revolving Credit Commitment Percentage" means, with respect to any
Bank, the percent of the aggregate amount of all the Revolving Credit
Commitments represented by the amount of such Bank's Revolving Credit
Commitment.
"Revolving Loan" means any Loan made pursuant to Section 3.1.
"Revolving Note" means a promissory note of any Borrower substantially
in the form of Exhibit A-1 hereto evidencing the obligation of such Borrower to
repay Revolving Loans, as amended or modified from time to time and together
with any promissory note or notes issued in exchange or replacement therefor.
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
Any rating or change in rating given by S&P shall be deemed effective, and in
effect, when publicly announced by S&P.
"Scheduled Expiration Date" means November 15, 2003.
"Securities Purchase Agreement" means the Amended and Restated
Securities Purchase Agreement dated as of November 23, 1993, as amended by that
certain Amendment No. 1 to Amended and Restated Securities Purchase Agreement
made as of October 31, 1996, between MascoTech and Masco Corporation, as in
effect on the Closing Date in the form attached hereto as Exhibit J, and as
heretofore or hereafter amended, supplemented or otherwise modified from time
to time. Nothing in this Agreement shall prohibit MascoTech and Masco
Corporation from amending or terminating such Securities Purchase Agreement,
provided that at the time of such amendment or termination, and immediately
after giving effect thereto, no Default exists or would exist, and, provided,
that MascoTech delivers a copy of any such amendment to the Administrative
Agent within 30 days of the date of such amendment.
"Securitization Amount" means, as of any date, the aggregate amount of
proceeds received by MascoTech or any of its Consolidated Subsidiaries, as the
transferor, with respect to any Receivables Sale at such date to the extent the
related transferee is entitled at such time to the recovery of such amount out
of the proceeds of the assets transferred pursuant thereto.
"Senior Debt" means all Debt of MascoTech and its Consolidated
Subsidiaries, determined on a consolidated basis, except Subordinated Debt,
provided that, for purposes of this definition, if any Debt ("Existing Debt")
is to be Refunded (as hereinafter defined) with the proceeds of other money
borrowed ("New Debt"), the Existing Debt to be so Refunded shall be excluded
from Senior Debt when the New Debt is incurred. For purposes of this
definition, Existing Debt is to be "Refunded" by New Debt if, and to the extent
that, (i) no later than five (5) Business Days after the New Debt is
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incurred, MascoTech delivers to the Administrative Agent written notice
stating that the purpose of such New Debt is to refund Existing Debt and
specifying the Existing Debt to be refunded, (ii) the proceeds of such New Debt
are held in the form of Cash and Cash Equivalents (free of any Lien except a
Lien securing the specified Existing Debt to be refunded and no other
indebtedness or obligations) until such specified Existing Debt is repaid and
(iii) such specified Existing Debt is repaid within 45 (forty-five) days after
the New Debt is incurred.
"Senior Debt Coverage Ratio" means, at any time from and including the
last day of any fiscal quarter of MascoTech to but excluding the last day of
the following fiscal quarter of MascoTech, the ratio of (a) Senior Debt as of
the end of such fiscal quarter to (b) EBITDA for the immediately preceding four
fiscal quarters.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of MascoTech as defined in Rule 1-02 of Regulation S-X under the
Securities Exchange Act of 1934, except that during fiscal year 1998, TriMas
Corporation shall be treated as if it were a Subsidiary of MascoTech as of
December 31, 1997, determined on a pro forma basis.
"Subordinated Debt" means, without duplication, (a) all Debt now
outstanding or hereafter created, issued, guaranteed, incurred or assumed by
any of the Borrowers which is subordinated to payment of principal, premium, if
any, and interest on the Notes by provisions not less favorable in any material
respect to the holders of the Notes than the provisions set forth on Exhibit O;
(b) Debt evidenced by MascoTech's 4-1/2% Convertible Subordinated Debentures
due 2003, in the original principal amount of $345,000,000 and (c) Debt
hereafter issued pursuant to the Securities Purchase Agreement; provided,
however, that any of such Debt shall cease to be "Subordinated Debt" upon and
to the extent of the Borrowers' repurchase or redemption of such Debt as
permitted hereunder or the Borrowers' transfer, conveyance, assignment or
delivery to any trustee, paying agent or other fiduciary for the benefit of the
holder(s) of such Debt of any cash, securities or other assets of the
Borrowers in payment or on account of, or as provision for, the principal of
such Debt; provided further, however, that any of such Debt referred to in
clauses (b) and (c) of this definition shall cease to be "Subordinated Debt"
upon any amendment or other modification to the Debentures referred to in such
clause (b) or any instrument issued pursuant to the Securities Purchase
Agreement referred to in clause (c) evidencing such Debt, relating to the
subordination thereof, unless, in any such case, the provisions of such
Debentures after giving effect to such amendment or modification are not less
favorable in any material respect to the holders of the Notes than the
provisions set forth on Exhibit O.
"Subsidiary" of any Person means (a) any limited partnership (whether
now existing or hereafter organized) of which such Person or another Subsidiary
of such Person is the general partner, (b) any general partnership or limited
liability company (whether now existing or hereafter organized) of which such
Person or one or more of the other Subsidiaries of such Person own at least a
majority of the ownership or membership interests and (c) any corporation
(whether now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency), at the time as of which
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any determination is being made, is owned, beneficially and of record, by such
Person or by one or more of the other Subsidiaries of such Person or by any
combination thereof. Unless the context otherwise requires, references to
"Subsidiary" or "Subsidiaries" herein refer to MascoTech's Subsidiaries.
"Substitute Loan" means any Loan made by a Bank pursuant to Section
5.4.
"Swing Line Bank" means The First National Bank of Chicago.
"Swing Line Borrowing" means any Borrowing consisting of a Swing Line
Loan.
"Swing Line Commitment" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any
one time outstanding.
"Swing Line Loan" means a loan made available to any of the Borrowers
by the Swing Line Bank pursuant to Section 3.5.
"Swing Line Loan Note" means a Note in substantially the form of
Exhibit B-2 hereto duly executed by the applicable Borrowers and payable to the
order of the Swing Line Bank in the amount of the Swing Line Commitment.
"Syndicated Loan" means any Revolving Loan or Term Loan.
"Syndicated Revolving Credit Borrowing" means any Borrowing consisting
of a Revolving Loan made to a Borrower on a syndicated basis.
"Syndication Period" shall have the meaning ascribed thereto in the
definition of the term "Interest Period".
"Synthetic Lease Agreement" shall have the meaning ascribed thereto in
the definition of the term "Synthetic Lease Amount".
"Synthetic Lease Amount" means, as of any date, 85% of the aggregate
fair market value of all real property subject to an agreement (a "Synthetic
Lease Agreement") for the use or possession of such real property by MascoTech
or any of its Consolidated Subsidiaries in effect at such date creating
obligations which do not appear on the balance sheet of any such Person but
which, upon the insolvency of such Person, would be characterized as Debt of
such Person (without regard to accounting treatment). For purposes of this
definition, the fair market value of each real property subject to a Synthetic
Lease Agreement shall be determined at the time of execution of such Synthetic
Lease Agreement.
"Term Loan" means a Loan made pursuant to Section 3.2(a).
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"Term Loan Commitment" means, with respect to each Bank whose
commitment has not been terminated pursuant to Section 11.13, the commitment of
such Bank to make Term Loans pursuant to Section 3.2, in an aggregate principal
amount which does not exceed, (a) in the case of each Bank originally a party
hereto, the amount set forth opposite the name of such Bank on the signature
pages hereof, and (b) in the case of each Bank becoming a party hereto in
accordance with Section 11.6(d) or 11.13, the aggregate amount assigned to it,
in each case (i) less the aggregate amount, if any, subsequently assigned by it
in accordance with Section 11.6(d) and (ii) plus the aggregate amount, if any,
subsequently assigned to it under Section 11.6(d) or 11.13.
"Term Note" means a promissory note, in substantially the form of
Exhibit A-2 hereto, duly executed by a Borrower and payable to the order of
Bank in the amount of its Term Loan Commitment, including any amendment,
restatement modification, renewal or replacement of such Term Note.
"Termination Date" means the earlier to occur of (a) the Scheduled
Expiration Date and (b) the date on which the Commitments shall be terminated
pursuant to Section 3.11 or 9.1.
"Type" means, with respect to any Loan, its nature as a Floating Rate
Loan or Eurodollar Rate Loan.
"Unfunded Benefit Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (a) the present value of all vested
nonforfeitable benefits under such Plan exceeds (b) the fair market value of
all Plan assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a Borrower or any ERISA Affiliate to the PBGC or any other Person
under Title IV of ERISA.
1.2 Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time, on a basis
consistent, to the extent required by such principles, with the most recent
audited consolidated financial statements of MascoTech and its Consolidated
Subsidiaries filed with the Securities and Exchange Commission on Form 10-K and
delivered to the Banks prior to the Closing Date; provided that, if MascoTech
notifies the Administrative Agent that the Borrowers wish to amend any covenant
in Article VII to eliminate the effect of any change in generally accepted
accounting principles in the operation of such covenant (or if the
Administrative Agent notifies the Borrowers that the Required Banks wish to
amend Article VII for such purpose), then the Borrowers' compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrowers
and the Required Banks. Without limiting the foregoing, all transfers of
receivables shall be recognized as sales, and not as Debts or Liens, if they
would be recognized as sales in accordance with generally accepted accounting
principles, provided
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that all probable adjustments in connection with the recourse provisions are
accrued, all as more specifically described in Statement of Financial
Accounting Standards No. 125.
1.3 Other Definitions; Rules of Construction. As used herein, the
terms "Acquisition", "Administrative Agent", "Agents", "Bank", "Banks",
"Borrowers", "MascoTech", "Syndication Agents", "Target" and "this Agreement"
shall have the respective meanings ascribed thereto in the introductory
paragraph of this Agreement. Use of the terms "herein", "hereof" and
"hereunder" shall be deemed references to this Agreement in its entirety and
not solely to the Section or clause in which such term appears. Unless
otherwise specified herein, references to "Sections" and "subsections" shall be
to Sections and subsections, respectively, of this Agreement.
Except as provided in the definition of Eurodollar Rate Interest Period, if any
payment, report, financial statement, notice or other obligation is due
hereunder on a day which is not a Business Day, then the due date thereof shall
be extended to the next Business Day.
ARTICLE II.
TERMINATION OF EXISTING CREDIT AGREEMENT
Termination. The Borrowers and the Banks acknowledge and agree that,
effective as of the initial Borrowing pursuant to Section 8.2(b), the Existing
Commitment of each Existing Bank shall hereby be terminated. Each Existing
Bank that is a party hereto shall cancel all Existing Notes (other than notes
evidencing Existing Bid-Option Loans that the holder thereof has agreed may
remain outstanding past the Closing Date) held by it and return them to
MascoTech promptly after all amounts payable thereunder have been paid in full.
Notwithstanding the foregoing, MascoTech and each of the Banks acknowledge and
agree that each Existing Bid-Option Loan made by any of the Banks which has
agreed that such Loan may remain outstanding past the Closing Date shall
continue with its existing principal amount, interest rate and Interest Period,
except that each such Existing Bid-Option Loan shall be deemed a Bid-Option
Loan under this Agreement and shall be governed by the provisions of this
Agreement.
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES
3.1 Revolving Loans. Each Bank agrees, for itself only, subject to
the terms and conditions set forth in this Agreement, to make Revolving Loans
in Dollars to any Borrower from time to time from the Closing Date to but
excluding the Termination Date; provided that the aggregate outstanding
principal amount of such Bank's Revolving Loans shall not at any time exceed
the excess of (a) the amount of its Revolving Credit Commitment, over (b) the
sum of (i) its Revolving Credit
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Commitment Percentage of the Letter of Credit Obligations Amount plus
(ii) its Revolving Credit Commitment Percentage of the aggregate outstanding
principal balance of the Swing Line Loans plus (iii) its Revolving Credit
Commitment Percentage of the Dollar Equivalent of the aggregate outstanding
principal amount of all Bid-Option Loans made by the Banks (using for purposes
of such determination, in the case of any Alternate Currency Loans, the Dollar
Equivalent as determined on the last Business Day of the month then most
recently ended); provided, however, that at no time shall the aggregate
outstanding principal balance of the Revolving Loans, Swing Line Loans,
Alternate Currency Loans, Bid-Option Loans and Letter of Credit Obligations
exceed $800,000,000. Each Eurodollar Borrowing shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $5,000,000 and each
Floating Rate Borrowing shall be in an aggregate principal amount of $5,000,000
or any larger multiple of $5,000,000; provided that any such Borrowing may be
in the aggregate amount of the unused Revolving Credit Commitments. Each such
Borrowing shall be made by the several Banks ratably in accordance with their
respective Revolving Credit Commitment Percentages. Within the foregoing
limits, each Borrower may borrow Revolving Loans under this Section 3.1, repay
such Revolving Loans, prepay such Loans to the extent permitted or required by
this Agreement and reborrow under this Section 3.1. Default by any Bank with
respect to its obligations hereunder shall not excuse any non-performance by
any other Bank, provided that no Bank shall be liable for the non-performance
by any other Bank of its obligations hereunder.
3.2 Term Loans.
Subject to the terms and conditions set forth in this Agreement,
each Bank on the Closing Date severally and not jointly agrees to make
a term loan, in Dollars, to one or more of the Borrowers in an aggregate amount
not to exceed such Bank's Term Loan Commitment (each individually, a "Term
Loan" and, collectively, the "Term Loans"). All Term Loans shall be made by
the Banks on the Closing Date simultaneously and pro rata, it being understood
that no Bank shall be responsible for any failure by any other Bank to perform
its obligation to make any Term Loan hereunder nor shall the Term Loan
Commitment of any Bank be increased or decreased as a result of any such
failure.
3.3 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement, the Administrative Agent agrees to issue for the account of and
upon the application of any of the Borrowers, and each Bank further agrees for
itself only to participate in the risk of, Letters of Credit from time to time
from the Closing Date to but excluding the Termination Date; provided that the
Letter of Credit Obligations Amount shall not at any time exceed the lesser of
(i) $150,000,000 and (ii) the excess of (A) the aggregate amount of the
Revolving Credit Commitments over (B) the aggregate outstanding principal
amount of the Revolving Loans plus the outstanding principal amount of the
Swing Line Loans plus the outstanding principal balance of the Bid-Option Loans
plus the aggregate outstanding principal amount of the Alternate Currency
Syndicated Loans. No Letter of Credit shall have a stated expiry date earlier
than 30 days after the date of its issuance, and no Letter of Credit shall have
a stated expiry date or, if by its terms it is periodically renewable, be
subject to being terminated by the Administrative Agent (unless renewal is
permitted by the Administrative Agent in its sole discretion, in which case the
Administrative Agent will not permit renewal to a date beyond that
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determined in accordance with the following portion of this sentence),
later than the earlier of (i) the one year anniversary of its issuance (or, if
renewable and renewal has been permitted, the one year anniversary of its last
renewal) and (ii) the fifth Business Day before the Scheduled Expiration Date.
Each Letter of Credit shall be in a minimum amount of $1,000,000 or as
otherwise agreed to by the Administrative Agent. Subject to the terms and
conditions set forth in this Agreement, the Administrative Agent shall, on the
date any Letter of Credit is requested to be issued, issue the related Letter
of Credit for the pro rata risk of the Banks. Notwithstanding anything herein
to the contrary, the Administrative Agent may decline to issue any Letter of
Credit if the beneficiary or the conditions of drawing are reasonably
unacceptable to the Administrative Agent, or if the purpose of issuance is
illegal or is in contravention of any law, rule, regulation or public policy or
any judgment, decree, writ, injunction, order or award of any arbitrator, court
or governmental authority.
(b) The applicable Borrower shall give the Administrative Agent
written notice in substantially the form attached hereto as Exhibit D (a
"Request for Letter of Credit Issuance") not later than 10:00 a.m. (Detroit
time) on the fifth Business Day before each requested Letter of Credit Issuance
or such later time as is acceptable to the Administrative Agent.
(c) The applicable Borrower agrees (i) to pay to the
Administrative Agent for the account of the Banks a fee computed at the per
annum rate equal to the Applicable Margin for Letters of Credit based on the
maximum amount available to be drawn from time to time under the related Letter
of Credit for the period from and including the date of such Letter of Credit
Issuance to but excluding the stated expiry date of such Letter of Credit, and
(ii) to pay an additional fee to the Administrative Agent for its own account
computed at the rate of one-eighth of one percent (1/8 of 1%) per annum of such
maximum amount for such period, such fees with respect to any Letter of Credit
to be paid quarterly in arrears, in each case with respect to each calendar
quarter or portion thereof not later than the tenth day after the end of each
March, June, September and December, commencing with the first such calendar
quarter-end after the Closing Date, and on the Termination Date, based upon the
Applicable Margin for Letters of Credit in effect from time to time during such
period. The applicable Borrower further agrees to pay to the Administrative
Agent, on demand, such other customary administrative fees, charges and expenses
of the Administrative Agent in respect of the issuance, negotiation, acceptance,
amendment, transfer and payment of such Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter of
Credit is issued.
(d) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Administrative Agent has the sole obligation under this Agreement to issue
Letters of Credit for the risk of the Banks. Upon each Letter of Credit
Issuance, each Bank shall automatically acquire a pro rata risk participation
interest in the related Letter of Credit based on its respective Revolving
Credit Commitment Percentage. If the Administrative Agent shall honor a draft
or other demand for payment presented or made under any Letter of Credit, the
Administrative Agent shall provide notice thereof to each Bank on the date such
draft or demand is honored unless the applicable Borrower shall have satisfied
its reimbursement obligation under subsection (e) of this Section 3.3 by payment
to the Administrative Agent on such date. Each Bank,
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on such date, shall make an amount equal to its Revolving Credit
Commitment Percentage of the amount paid by the Administrative Agent available
in immediately available funds at the principal office of the Administrative
Agent for the account of the Administrative Agent. If and to the extent such
Bank shall not have made such amount available to the Administrative Agent,
such Bank and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such amount, together with interest
thereon for each day from the date such amount was paid by the Administrative
Agent until such amount is so made available to the Administrative Agent at (i)
in the case of such Bank, the Federal Funds Rate and (ii) in the case of the
applicable Borrower, the per annum rate equal to the interest rate applicable
during such period to the related Borrowing deemed (or that could have been
deemed) disbursed under subsection (e) of this Section 3.3 in respect of the
reimbursement obligation of the applicable Borrower. If such Bank shall pay
such amount to the Administrative Agent together with such interest, if any,
accrued, such amount so paid shall constitute a Revolving Loan by such Bank as
part of the Borrowing disbursed in respect of the reimbursement obligation of
the applicable Borrower under subsection (e) of this Section 3.3 for purposes
of this Agreement. The failure of any Bank to make an amount equal to its
Revolving Credit Commitment Percentage of any such amount paid by the
Administrative Agent available to the Administrative Agent shall not relieve
any other Bank of its obligation to make available an amount equal to such
other Bank's Revolving Credit Commitment Percentage of such amount, but no Bank
shall be responsible for failure of any other Bank to make its share available
to the Administrative Agent.
(e)(i) Whether a Letter of Credit was issued for the account of
any Borrower or any Consolidated Subsidiary of such Borrower, and without
limiting the reimbursement obligation of such other Consolidated Subsidiary,
such Borrower agrees to pay to the Administrative Agent, not later than
3:00 p.m. (Detroit time) on the date on which the Administrative Agent
shall honor a draft or other demand for payment presented or made under such
Letter of Credit, an amount equal to the amount paid by the Administrative
Agent in respect of such draft or other demand under such Letter of Credit and
all expenses paid or incurred by the Administrative Agent relative thereto (the
"Reimbursement Amount"). The Administrative Agent shall, on the date of each
demand for payment under any Letter of Credit, give such Borrower notice
thereof and of the amount of such Borrower's reimbursement obligation and
liability for expenses relative thereto; provided that the failure of the
Administrative Agent to give such notice shall not affect the reimbursement and
other obligations of such Borrower under this Section 3.3. Unless such
Borrower shall have made such payment to the Administrative Agent on such day,
upon each such payment by the Administrative Agent, such Borrower shall be
deemed to have elected to satisfy its reimbursement obligation by a Floating
Rate Borrowing of a Revolving Loan in an amount equal to the amount so paid by
the Administrative Agent in respect of such draft or other demand under such
Letter of Credit, and the Administrative Agent shall be deemed to have
disbursed to such Borrower, for the account of the Banks, the Revolving Loans
comprising such Floating Rate Borrowing, and each Bank shall make its share of
each such Floating Rate Borrowing available to the Administrative Agent in
accordance with Section 3.7(d). Such Revolving Loans shall be deemed disbursed
notwithstanding any failure to satisfy any conditions for disbursement of any
Loan set forth in Article VIII and, to the extent of the Revolving Loans so
disbursed, the reimbursement obligation of such Borrower under this subsection
(e)(i) shall be deemed satisfied.
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(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to any of the
Borrowers pursuant to Section 9.1(f) or (g)), Revolving Loans may not be made by
the Banks as described in Section 3.3(e)(i), then (A) such Borrower agrees that
each Reimbursement Amount not paid pursuant to the first sentence of Section
3.3(e)(i) shall bear interest, payable on demand by the Administrative Agent, at
the interest rate then applicable to Revolving Loans, and (B) effective on the
date each such Revolving Loans would otherwise have been made, each Bank
severally agrees that it shall unconditionally and irrevocably, without regard
to the occurrence of any Default, to the extent of such Bank's Revolving Credit
Commitment Percentage, purchase a participating interest in each Reimbursement
Amount. Each Bank will immediately transfer to the Administrative Agent, in
same day funds, the amount of its participation. Each Bank shall share on a pro
rata basis (calculated by reference to its Revolving Credit Commitment
Percentage) in any interest which accrues thereon and in all repayments
thereof. If and to the extent that any Bank shall not have so made the
amount of such participating interest available to the Administrative Agent,
such Bank agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Administrative Agent until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate.
(f) The reimbursement obligation of the Borrowers under this
Section 3.3 with respect to each Letter of Credit shall be absolute,
unconditional and irrevocable and shall remain in full force and effect until
all such obligations of the Borrowers to the Banks and the Administrative Agent
with respect to such Letter of Credit shall have been satisfied, and such
obligations of the Borrowers shall not be affected, modified or impaired upon
the happening of any event, including without limitation, any of the following,
whether or not with notice to, or the consent of, the Borrowers:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of
Credit Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest
in collateral or security, with respect to any of the Letter of Credit
Documents;
(iii) The existence of any claim, setoff, defense or other right
which the Borrowers may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom
any such beneficiary or any such transferee may be acting), the
Administrative Agent or any Bank or any other Person, whether in
connection with any of the Letter of Credit Documents, the transactions
contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
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(v) Payment by the Administrative Agent to the beneficiary under
any Letter of Credit against presentation of documents which do not
comply with the terms of the Letter of Credit, including failure
of any documents to bear any reference or adequate reference to such
Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Administrative Agent or any Bank or any party to any of the Letter of
Credit Documents to enforce, assert or exercise any right, power or
remedy conferred upon the Administrative Agent, any Bank or any
such party; or
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law
or otherwise of the Borrowers from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Borrowers have or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the
Borrowers against the Administrative Agent or any Bank. Nothing in this
Section 3.3 shall limit the liability, if any, of the Administrative Agent to
the Borrowers pursuant to Section 11.5(c).
3.4 Bid-Option Borrowings.
(a) The Bid-Option. In addition to Syndicated Borrowings that
are made pursuant to Sections 3.1 and 3.2, so long as the most recently
determined Senior Debt Coverage Ratio is less than 3.0 to 1.0 (except as
provided in Article II with respect to Existing Bid-Option Loans), the
Borrowers may, as set forth in this Section, from time to time after the
Closing Date to but excluding the Termination Date request the Banks to offer
to make Bid-Option Loans to any one or more of the Borrowers. Each Bank may,
but shall have no obligation to, make such offers; furthermore, each Bank may
limit the aggregate amount of Bid-Option Loans when quoting rates for more
than one Bid-Option Interest Period in any Bid-Option Quote, provided that such
limitation shall not be less than the minimum amounts required hereunder for
Bid-Option Loans and the applicable Borrower may choose among the Bid-Option
Loans if such limitation is imposed. The applicable Borrower may, but shall
have no obligation to, accept any such offers, in the manner set forth in this
Section; provided that the Dollar Equivalent of the aggregate outstanding
principal amount of Bid-Option Loans (using for purposes of such determination,
in the case of any Alternate Currency Loans, the Dollar Equivalent determined
on the last Business Day of the month then most recently ended) shall not, at
any time exceed the lesser of (i) the excess of (A) the aggregate amount of the
Revolving Credit Commitments over (B) the sum of the aggregate outstanding
principal amount of Revolving Loans plus the Letter of Credit Obligations
Amount plus the outstanding principal balance of the Swing Line Loans plus the
outstanding principal balance of the Alternate Currency Syndicated Loans, or
(ii) fifty percent (50%) of the sum of the aggregate amount of the Revolving
Credit Commitments and the aggregate principal amount of the Term Loans (as the
same may be reduced in accordance with the terms of this
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Agreement during any applicable Bid-Option Interest Period); and
provided, further, that the Dollar Equivalent of the aggregate outstanding
principal amount of Alternate Currency Bid-Option Loans shall not exceed
$200,000,000 (when taken together with the Alternate Currency Syndicated
Loans).
(b) Bid-Option Quote Requests. When the applicable Borrower
wishes to request offers to make Bid-Option Loans under this Section, it shall
transmit to the Administrative Agent by telex or telecopy a request
substantially in the form attached hereto as Exhibit E (a "Bid-Option Quote
Request") so as to be received no later than 10:00 a.m. (Detroit time) on (i)
the Business Day next preceding the date of the Borrowing proposed therein, in
the case of a Bid-Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii)
the fifth Business Day next preceding the date of the Borrowing in the case of a
Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the fifth
Business Day prior to the date of Borrowing proposed therein, in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans, specifying:
(A) the proposed date of the Borrowing, which shall
be a Business Day;
(B) whether the Borrowing is to be an Absolute Rate
Dollar Bid-Option Borrowing, a Eurodollar Rate Bid-Option
Borrowing or an Alternate Currency Bid-Option Borrowing
and, if an Alternate Currency Bid-Option Borrowing, the
desired Alternate Currency;
(C) the aggregate amount of such Borrowing, which shall
be (A) $25,000,000 or a larger multiple of $5,000,000,
in the case of a Dollar Bid-Option Borrowing, or (B) not
less than the Dollar Equivalent of $5,000,000, in the case
of a Alternate Currency Bid-Option Borrowing; and
(D) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
the applicable Interest Period.
The Borrowers may request offers to make Bid-Option Loans for more than one
Interest Period in a single Bid-Option Quote Request. The Borrowers may not
request offers to make Bid-Option Loans in more than one currency in any Bid-
Option Quote Request and may not make more than five Bid-Option Borrowings
during any month without the consent of the Administrative Agent.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of
a Bid-Option Quote Request, the Administrative Agent shall send to the Banks by
telex or telecopy (or telephone promptly confirmed by telex or telecopy) an
Invitation for Bid-Option Quotes substantially in the form attached hereto as
Exhibit F, which shall constitute an invitation by the applicable Borrower to
each
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Bank to submit Bid-Option Quotes offering to make the Bid-Option Loans to which
such Bid-Option Quote Request relates in accordance with this Section.
(d) Submission and Contents of Bid-Option Quotes. (i) Each Bank
may submit a Bid-Option Quote containing an offer or offers to make Bid-Option
Loans in response to any Invitation for Bid-Option Quotes. Each Bid-Option
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or telecopy (or by telephone
promptly confirmed by telex or telecopy) not later than (A) 9:00 a.m. (Detroit
time) on the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Absolute Rate Dollar Bid-Option Loans, (B) 10:00 a.m. (Detroit time) on the
fourth Business Day prior to the proposed date of the Borrowing, in the case of
a Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (C) 2:00 p.m.
(Detroit time) on the third Business Day prior to the proposed date of the
Borrowing, in the case of a Bid-Option Auction for Alternate Currency Bid-Option
Loans; provided that Bid-Option Quotes submitted by the Administrative Agent (or
any Affiliate of the Administrative Agent) in its capacity as a Bank may be
submitted, and may only be submitted, if the Administrative Agent or such
Affiliate notifies the applicable Borrower of the terms of the offer or offers
contained therein not later than (A) 8:45 a.m. (Detroit time) on the proposed
date of the Borrowing, in the case of a Bid-Option Auction for Absolute Rate
Dollar Bid-Option Loans, (B) 9:45 a.m. (Detroit time) on the fourth Business Day
prior to the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Eurodollar Rate Bid-Option Loans, or (C) 1:00 p.m. (Detroit time) on the
third Business Day prior to the proposed date of the Borrowing in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans. Subject to Section
3.4(e), Article VIII and Article IX, any Bid-Option Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given on
the instructions of the applicable Borrower.
(ii) Each Bid-Option Quote shall be in substantially the
form attached hereto as Exhibit G and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) whether the Bid-Option Loans for which the offers
are made are Absolute Rate Dollar Bid-Option Loans,
Eurodollar Rate Bid-Option Loans or Alternate Currency
Bid-Option Loans, which must match the type of Borrowing
stated in the related Invitation for Bid-Option Quotes;
(C) the principal amount of the Bid-Option Loan for
which each such offer is being made, the Dollar Equivalent
of which (1) may, together with the Dollar Equivalent of
the aggregate outstanding principal amount of all
other Loans made by the quoting Bank, exceed the amount of
the Commitment of the quoting
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Bank, (2) must be (y) in the case of any Dollar Bid-
Option Loan, $5,000,000 or a larger multiple thereof,
or (z) in the case of any Alternate Currency Bid-Option
Loan, not less than $1,000,000, and (3) may not
exceed the Dollar Equivalent of the aggregate principal
amount of the Bid-Option Borrowing specified in the
related Invitation for Bid-Option Quotes;
(D) in the case of a Bid-Option Auction for
Absolute Rate Dollar Bid-Option Loans or Alternate
Currency Bid-Option Loans, the rate of interest per annum
(the "Bid-Option Absolute Rate") offered for each such
Bid-Option Loan;
(E) in the case of a Bid-Option Auction for Eurodollar
Rate Bid-Option Loans, the applicable margin, which
may be positive or negative (the "Bid-Option Eurodollar
Rate Margin"), expressed as a percentage, offered for each
such Bid-Option Loan;
(F) the Interest Period(s) for which each such Bid-
Option Absolute Rate or Bid-Option Eurodollar Rate Margin,
as the case may be, is offered; and
(G) the identity of the quoting Bank.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit G
hereto or does not specify all of the information required
by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Bid-Option
Quotes; or
(D) arrives after the time set forth in subsection (d)(i);
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provided that a Bid-Option Quote shall not be disregarded pursuant to
clause (B) or (C) above solely because it indicates that an allocation that
might otherwise be made to it pursuant to Section 3.4(g) would be unacceptable.
(e) Notice to Borrowers. The Administrative Agent shall
promptly notify the applicable Borrower of the terms (i) of any
Bid-Option Quote submitted by a Bank that is in accordance with subsection (d)
of this Section and (ii) of any Bid-Option Quote that amends, modifies or is
otherwise inconsistent with a previous Bid-Option Quote submitted by such Bank
with respect to the same Bid-Option Quote Request. Any such subsequent
Bid-Option Quote shall be disregarded by the Administrative Agent unless such
subsequent Bid-Option Quote is submitted solely to correct a manifest error in
such former Bid-Option Quote. The Administrative Agent's notice to the
applicable Borrower shall specify (i) the Dollar Equivalent of the aggregate
principal amount of Bid-Option Loans for which offers have been received for
each Interest Period specified in the related Bid-Option Quote Request and (ii)
the respective Dollar Equivalent of the principal amounts and respective
Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins, as the case
may be, so offered.
(f) Acceptance and Notice by Borrowers. Not later than
10:00 a.m. (Detroit time) on (i) the proposed date of the Borrowing, in the
case of a Bid-Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii)
the third Business Day prior to the proposed date of the Borrowing, in the
case of a Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the
second Business Day prior to the proposed date of the Borrowing, in the
case of a Bid-Option Auction for Alternate Currency Bid-Option Loans, the
applicable Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e) of
this Section 3.4. In the case of acceptance, such notice (a "Notice of
Bid-Option Borrowing") shall specify the aggregate principal amount of accepted
offers for the applicable Interest Period(s). The applicable Borrower may
accept any Bid-Option Quote in whole or in part; provided that:
(A) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing may not exceed the
applicable amount set forth in the related Bid-Option Quote
Request;
(B) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing must be (1) in the case
of Dollar Bid-Option Borrowings, $25,000,000 or a larger
multiple of $5,000,000, unless the aggregate amount of the
related Bid-Option Loans for which Bid-Option Quotes were
received is less than $25,000,000, in which case the
aggregate principal amount of the Dollar Bid-Option
Borrowing may be any amount less than $25,000,000, and (2)
in the case of Alternate Currency Bid-Option Loans, not
less than $5,000,000 (or, if less, the aggregate amount of
the
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related Bid-Option Loans for which Bid-Option Quotes were
received);
(C) acceptance of offers may only be made on the basis
of ascending Bid-Option Absolute Rates or Bid-Option
Eurodollar Rate Margins, as the case may be; and
(D) a Borrower may not accept any offer that is
described in clause (iii) of subsection (d) of this Section
or that otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Banks with the same Bid-Option Absolute Rates or Bid-Option
Eurodollar Rate Margins, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Bid-Option Loans in respect of
which such offers are accepted shall be allocated by the Administrative Agent
among such Banks as nearly as possible (in such multiples, not greater than the
Dollar Equivalent of $500,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers
(excluding any Bank that has indicated in its offer that an allocation which
otherwise would be made to it is unacceptable). Determinations by the
Administrative Agent of the amounts of Bid-Option Loans shall be conclusive in
the absence of manifest error.
3.5 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Sections 8.1 8.2 and 8.3,
from and including the date of this Agreement and prior to the Termination
Date, the Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans in Dollars to the Borrowers from time to
time in an amount not to exceed the lesser of (i) $25,000,000 (minus the
outstanding principal balance of all Swing Line Loans then outstanding) or (ii)
an amount equal to the aggregate amount of the Revolving Credit Commitments
minus the outstanding principal balance of the Revolving Loans minus the Letter
of Credit Obligations Amount minus the outstanding principal balance of the
Bid-Option Loans minus the outstanding principal balance of all Swing Line
Loans at such time minus the outstanding principal balance of the Alternate
Currency Syndicated Loans at such time, in each case after giving effect to the
application of the proceeds of any Swing Line Loans made at such time (using
for purposes of such determination, in the case of any Alternate Currency
Loans, the Dollar Equivalent determined on the last Business Day of the month
then most recently ended). Each Swing Line Loan shall be in a minimum amount
of not less than $1,000,000 (or such lesser amount as may be agreed to by the
Swing Line Bank) or an integral multiple of $1,000,000 (or such lesser amount
as may be agreed to by the Swing Line Bank) in excess thereof, and all interest
payable on the Swing Line Loans shall be payable to the Swing Line Bank for its
account.
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(b) Borrowing Notice. The applicable Borrower shall deliver to
the Administrative Agent and the Swing Line Bank a Borrowing Notice
in substantially the form attached hereto as Exhibit C-2 ("Notice of Swing Line
Borrowing") signed by it not later than 2:00 p.m. (Detroit time) (or such
later time as shall be agreed upon between such Borrower and the Swing Line
Bank) on the Borrowing Date of each Swing Line Loan specifying (i) the
applicable Borrowing Date (which shall be a Business Day) and (ii) the aggregate
amount of the requested Swing Line Loan. The Swing Line Loans shall at all
times be at rates agreed to between the applicable Borrower and the Swing Line
Bank.
(c) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Loan Notes and each Swing Line Loan shall be paid in
full on or before the sixth Business Day after the Borrowing Date for such Swing
Line Loan (or such longer period as may be agreed to by the Swing Line Bank).
Outstanding Swing Line Loans may be repaid from the proceeds of Revolving Loans
or Swing Line Loans. Any repayment of a Swing Line Loan shall be accompanied by
accrued interest thereon and shall be in the minimum amount of $1,000,000 (or
such lesser amount as may be agreed to by the Swing Line Bank) and in increments
of $1,000,000 (or such lesser amount as may be agreed to by the Swing Line Bank)
in excess thereof or the full amount of such Swing Line Loan. If the applicable
Borrower at any time fails to repay a Swing Line Loan on the applicable date
when due, the applicable Borrower shall be deemed to have elected to borrow a
Floating Rate Loan under Section 3.1 as of such date equal in amount to the
unpaid amount of such Swing Line Loan (notwithstanding the minimum amount of
Floating Rate Loans as provided in Section 3.1). The proceeds of any such Loan
shall be used to repay such Swing Line Loan. Unless the Administrative Agent
upon the request of or with the consent of the Required Banks shall have
notified the Swing Line Bank prior to making any Swing Line Loan, that the
applicable conditions precedent set forth in Article VIII have not then been
satisfied, each Bank's obligation to make Loans pursuant to Section 3.1 and to
repay such Swing Line Loan pursuant to this Section 3.5 shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including the occurrence or continuance of a Default. In
the event that any Bank fails to make payment to the Administrative Agent of
any amount due under this Section 3.5(c), the Administrative Agent shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Bank hereunder until the Administrative
Agent receives such payment from such Bank or such obligation is otherwise
fully satisfied. In addition to the foregoing, if for any reason any Bank
fails to make payment to the Administrative Agent of any amount due under this
Section 3.5(c), such Bank shall be deemed, at the option of the Administrative
Agent, to have unconditionally and irrevocably purchased from the Swing Line
Bank, without recourse or warranty, an undivided interest in and participation
in the Swing Line Loan in the amount of the Loan such Bank was required to make
pursuant to this Section 3.5(c) and such interest and participation may be
recovered from such Bank together with interest thereon at the Federal Funds
Rate for each day during the period commencing on the date of demand by the
Administrative Agent and ending on the date such obligation is fully satisfied.
3.6 Alternate Currency Syndicated Loans.
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(a) Upon the satisfaction of the conditions precedent set forth in
Sections 8.1, 8.2 and 8.3 hereof and set forth in the applicable Alternate
Currency Addendum, from and including the later of the date of this Agreement
and the date of execution of the applicable Alternate Currency Addendum and
prior to the Termination Date (unless an earlier termination date shall be
specified in the applicable Alternate Currency Addendum), each applicable
Alternate Currency Bank agrees, on the terms and conditions set forth in this
Agreement and in the applicable Alternate Currency Addendum, to make Alternate
Currency Syndicated Loans under such Alternate Currency Addendum to the
applicable Borrower party to such Alternate Currency Addendum from time to time
in the applicable Alternate Currency, in an amount not to exceed each such
Alternate Currency Bank's applicable Alternate Currency Commitment; provided,
however, at no time shall the Dollar Equivalent of the outstanding principal
amount of the Alternate Currency Loans for all Alternate Currencies exceed
$200,000,000 other than as a result of currency fluctuations and then only to
the extent permitted in Section 4.2(h); provided, further, at no time shall the
Dollar Equivalent of the Alternate Currency Syndicated Loans for any specific
Alternate Currency exceed the maximum amount specified as the maximum amount
for such Alternate Currency in the applicable Alternate Currency Addendum other
than as a result of currency fluctuations and then only to the extent permitted
in Section 4.2(h). Each Alternate Currency Syndicated Loan under this Section
3.6 shall consist of Alternate Currency Syndicated Loans made by each
applicable Alternate Currency Bank ratably in proportion to such Alternate
Currency Bank's respective Alternate Currency Share. Subject to the terms of
this Agreement and the applicable Alternate Currency Addendum, the Borrowers
may borrow, repay and reborrow Alternate Currency Syndicated Loans at any time
prior to the Termination Date. On the Termination Date, the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the Termination Date prepayments of the
Alternate Currency Loans shall be made by the applicable Borrower if and to the
extent required in Section 4.2.
(b) MascoTech may, by written notice to the Administrative Agent
request the establishment of additional Alternate Currency Commitments in
additional Alternate Currencies other than Pounds Sterling, Deutsche Marks and
Italian Lire, provided the Dollar Equivalent of the aggregate amount of all of
the Alternate Currency Commitments does not exceed $200,000,000 ("Request for a
New Alternate Currency Facility"). The Administrative Agent will promptly
forward to the Banks any Request for a New Alternate Currency Facility received
from MascoTech; provided each Bank shall be deemed not to have agreed to such
request unless its written consent thereto has been received by the
Administrative Agent within ten (10) Business Days from the date of such
notification by the Administrative Agent to such Bank. In the event that
sufficient Banks consent to such Request for a New Alternate Currency Facility,
upon execution of the applicable Alternate Currency Addendum and the other
documents, instruments and agreements required pursuant to this Agreement and
such Alternate Currency Addendum, the Alternate Currency Loans with respect
thereto may be made.
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Agent or Alternate Currency Banks have the right to
accelerate the Alternate Currency Loans outstanding under any Alternate
Currency Addendum or to terminate their commitments (if any)
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thereunder to make Alternate Currency Loans prior to the stated termination
date in respect thereof, except that such Alternate Currency Agent and
Alternate Currency Banks shall, in each case, have such rights upon an
acceleration of the Loans and a termination of the Revolving Credit Commitments
pursuant to Article IX.
(d) Each Alternate Currency Agent shall furnish to the Administrative
Agent and the applicable Alternate Currency Banks, not less frequently than
monthly, and at any other time at the reasonable request of the Administrative
Agent, a statement setting forth the outstanding Alternate Currency Loans made
and repaid during the period since the last such report under such Alternate
Currency Addendum.
(e) Immediately and automatically upon the occurrence of an Event of
Default under Section 9.1(a), (f) or (g), each Bank shall be deemed to have
unconditionally and irrevocably purchased from each Alternate Currency Bank,
without recourse or warranty, an undivided interest in and participation in
each Alternate Currency Syndicated Loan ratably in accordance with such Bank's
Revolving Credit Commitment Percentage of the amount of such Loan, and
immediately and automatically all Alternate Currency Syndicated Loans shall be
converted to and redenominated in Dollars equal to the Dollar Equivalent of
each such Alternate Currency Loan determined as of the date of such conversion.
Each of the Banks shall pay to the applicable Alternate Currency Bank not later
than two (2) Business Days following a request for payment from such Alternate
Currency Bank, in Dollars, an amount equal to the undivided interest in and
participation in the Alternate Currency Syndicated Loan purchased by such Bank
pursuant to this Section 3.6(e). In the event that any Bank fails to make
payment to the applicable Alternate Currency Bank of any amount due under this
Section 3.6(e), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Bank hereunder until the Administrative Agent receives from such Bank
an amount sufficient to discharge such Bank's payment obligation as prescribed
in this Section 3.6(e) together with interest thereon at the Federal Funds Rate
for each day during the period commencing on the date of demand by the
Administrative Agent and ending on the date such obligation is fully satisfied.
The Administrative Agent will promptly remit all payments received as provided
above to the applicable Alternate Currency Bank.
3.7 Notice to Banks; Funding of Loans.
(a) Notice of Syndicated Borrowings. The applicable Borrower
shall give the Administrative Agent or the applicable Alternate Currency
Agent, as required, written notice in substantially the form attached hereto as
Exhibit C-1 (a "Notice of Syndicated Borrowing") signed by an Authorized
Officer or person designated by an Authorized Officer not later than 12:00 noon
(Detroit time) on the Business Day of each Borrowing of a Floating Rate
Revolving Loan, not later than 11:00 a.m. (Detroit time) on the third Business
Day before each Borrowing of a Eurodollar Rate Syndicated Loan, and not later
than 11:00 a.m. (Detroit time) on the fourth Business Day before each Borrowing
of an Alternate Currency Syndicated Loan, or as specified in the applicable
Alternate Currency Addendum, specifying: (i) the date of such Borrowing, which
shall be a Business Day, (ii)
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whether such Borrowing is pursuant to a Term Loan, a Revolving Credit
Syndicated Loan or an Alternate Currency Syndicated Loan, (iii) the
aggregate amount of such Borrowing and, in the case of each Alternate Currency
Syndicated Loan, the Dollar Equivalent of such Borrowing and the currency in
which such Borrowing is denominated, (iv) whether the Loans comprising such
Borrowing are to be, in the case of Term Loans or Revolving Loans, Floating
Rate Loans or Eurodollar Rate Syndicated Loans or Alternate Currency Syndicated
Loans and (v) in the case of each Eurodollar Rate Syndicated Borrowing or
Alternate Currency Syndicated Loan, the duration of the Interest Period
applicable thereto, which shall comply with the provisions of the definition of
the applicable Interest Period.
(b) Request for Letter of Credit Issuance; Notice of Bid-Option
Borrowing; Notice of Swing Line Borrowing. The applicable Borrower shall give
the Administrative Agent or the applicable Alternate Currency Agent, as
required, written notice in conformity with the Section 3.3(b) in the case of a
Request for Letter of Credit Issuance, Section 3.4(f) in the case of a Notice of
Bid-Option Borrowing and Section 3.5(b) in the case of a Notice of Swing Line
Borrowing.
(c) Upon receipt of a Notice of Borrowing or Request for Letter
of Credit Issuance, the Administrative Agent or the Alternate Currency Agent, as
applicable, shall promptly notify each applicable Bank of the contents thereof
and of such Bank's share, if any, of such Borrowing or the related Letter of
Credit risk, as the case may be. A Notice of Borrowing or Request for Letter of
Credit Issuance shall be irrevocable by the applicable Borrower once the
Administrative Agent, or the applicable Alternate Currency Agent, begins
notifying any Bank of the contents thereof.
(d) Each Bank, not later than 1:00 p.m. (Detroit time) on the
date any Borrowing is requested to be made, other than an Alternate Currency
Borrowing or a Borrowing of a Swing Line Loan, shall make its share, if any, of
such Borrowing available to the Administrative Agent in immediately available
funds, at the Administrative Agent's address specified in or pursuant to Section
11.2, for disbursement to the applicable Borrower. Unless the Administrative
Agent determines that any applicable condition specified in Article VIII has not
been satisfied, the Administrative Agent will make funds actually so received
from the Banks available to the applicable Borrower at the Administrative
Agent's aforesaid address. Unless the Administrative Agent shall have received
notice from any Bank prior to the date such Borrowing is requested to be made
that such Bank will not make available to the Administrative Agent such Bank's
share of such Borrowing, the Administrative Agent may assume that such Bank has
made such share available to the Administrative Agent on the date such Borrowing
is requested to be made in accordance with this Section 3.7. If and to the
extent such Bank shall not have so made such share available to the
Administrative Agent, the Administrative Agent may (but shall not be obligated
to) make such amount available to the applicable Borrower, and such Bank and the
applicable Borrower severally agree to pay to the Administrative Agent forthwith
on demand such amount, together with interest thereon for each day from the date
such amount is made available to the applicable Borrower by the Administrative
Agent until the date such amount is repaid to the Administrative Agent at (i) in
the case of such Bank, the Federal Funds Rate and (ii) in the case of the
applicable Borrower, a rate per annum equal to the interest rate applicable to
such Borrowing during such period. If such Bank shall pay such amount to the
Administrative Agent together with interest, such amount so paid shall
constitute a Loan by such Bank as a part of the related
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Borrowing for purposes of this Agreement. The failure of any Bank to make its
share of any Borrowing available to the Administrative Agent shall not relieve
any other Bank of its obligation to make available to the Administrative Agent
its share, if any, of such Borrowing on the date such Borrowing is requested to
be made, but no Bank shall be responsible for failure of any other Bank to make
such share available to the Administrative Agent on the date of such Borrowing.
(e)(i) Each Bank making an Alternate Currency Bid-Option Loan
shall make its share, if any, of such Borrowing available to the
applicable Borrower not later than 11:00 a.m. (local time in the principal
financial center of the country issuing the Alternate Currency) on the date any
Alternate Currency Bid-Option Borrowing is requested to be made by depositing
the proceeds thereof in an account maintained and designated by the applicable
Borrower at an office or branch of such Bank (or of an Affiliate of such Bank)
located in the principal financial center of the country issuing the Alternate
Currency in which such Borrowing is denominated or, if neither such Bank nor
any Affiliate of such Bank has an office or branch in such financial center, at
such Bank's Eurodollar Lending Office or Domestic Lending Office as selected by
such Bank, or by such other means requested by the applicable Borrower and
acceptable to such Bank. Promptly upon any such disbursement of an Alternate
Currency Bid-Option Loan, the Bank making such Loan shall give written notice
to the Administrative Agent by telex or telecopy of the making of such Loan,
which notice shall be substantially in the form attached hereto as Exhibit H.
(ii) Subject to the procedures set forth in the applicable
Alternate Currency Addendum, each Alternate Currency Bank shall make available
its Alternate Currency Syndicated Loan or Loans, in funds immediately available
to the Alternate Currency Agent at its office designated in the Alternate
Currency Addendum for payments of such Alternate Currency in the Alternate
Currency. The Alternate Currency Agent will promptly make the funds so received
from the Alternate Currency Banks available to the applicable Borrower. Promptly
upon any such disbursement of an Alternate Currency Syndicated Loan, the
Alternate Currency Agent, shall give written notice to the Administrative Agent
by telex or telecopy of the making of such Loan, which notice shall be
substantially in the form attached hereto as Exhibit H.
(iii) If for any reason any applicable Alternate Currency Bank
fails to make payment to the applicable Alternate Currency Agent of any amount
due under Section 3.7(e)(ii) and the applicable Alternate Currency Addendum, the
applicable Alternate Currency Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable to
such Alternate Currency Bank hereunder until the Alternate Currency Agent
receives such payment from such Alternate Currency Bank or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason any
Alternate Currency Bank fails to make payment to the applicable Alternate
Currency Agent of any amount due under Section 3.7(e)(ii) and the applicable
Alternate Currency Addendum, such Alternate Currency Bank shall be deemed, at
the option of the applicable Alternate Currency Agent, to have unconditionally
and irrevocably purchased from the applicable Alternate Currency Agent, without
recourse or warranty, an undivided interest in and participation in the
applicable Alternate Currency Loan in the amount such Alternate Currency Bank
was required to pay pursuant to Section 3.7(e)(ii) and the applicable Alternate
Currency Addendum, and such interest
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and such participation may be recovered from such Alternate Currency Bank
together with interest thereon at the Federal Funds Rate for each day
during the period commencing on the date of demand by the applicable Alternate
Currency Agent and ending on the date such obligation is fully satisfied.
3.8 The Notes.
(a) The Revolving Loans of each Bank shall be evidenced by a
Revolving Credit Note payable to the order of such Bank in an amount equal to
the Revolving Credit Commitment of such Bank.
(b) The Term Loans of each Bank shall be evidenced by a Term
Loan Note payable to the order of such Bank in an amount equal to the
Term Loan Commitment of such Bank.
(c) The Bid-Option Loans of each Bank shall be evidenced by a
single Bid-Option Note payable to the order of such Bank in an amount equal to
the Dollar Equivalent of the aggregate unpaid principal amount of such Bank's
Bid-Option Loans.
(d) The Alternate Currency Syndicated Loans of each Alternate
Currency Bank shall be evidenced by a single Alternate Currency Syndicated Note
payable to the order of such Bank in an amount equal to the Alternate Currency
Commitment of such Bank.
(e) Upon receipt of each Bank's Notes pursuant to Section 8.2,
the Administrative Agent shall forward such Notes to such Bank. Each Bank shall
record on its books and records, and prior to any transfer of its Notes shall
endorse on the schedules forming a part thereof appropriate notations to
evidence, the date of disbursement, amount and maturity of each Loan made by it,
the interest rate and Interest Period applicable thereto and the date and amount
of each payment of principal made by the applicable Borrowers with respect
thereto. Any notations made by such Bank shall be prima facie evidence of the
matters so recorded or endorsed. Each Bank is hereby irrevocably authorized by
the Borrowers to make such records, so to endorse schedules to its Notes and to
attach to and make a part of any Note a continuation of any such schedule as
and when required. Failure by any Bank to make such records or so to endorse
the schedules to its Notes, or any error in recording or so endorsing any such
information, shall not affect the Borrowers' liability hereunder or under any
Note.
3.9 Certain Fees.
(a) Facility Fee. MascoTech will pay to the Administrative
Agent for the respective accounts of the Banks a facility fee, for each
calendar quarter or portion thereof from the Closing Date to but not
including the Termination Date, on the amount of each Bank's Revolving Credit
Commitment and Term Loans, whether used or unused, during such period, at a rate
equal to the Applicable Facility Fee Rate. All accrued facility fees
hereunder shall be payable in arrears with respect to each calendar quarter or
portion thereof not later than the tenth day after the end of each March, June,
September and December, commencing with the first such calendar quarter-end
after the
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Closing Date, and on the Termination Date. Promptly upon receipt of such
facility fees for any calendar quarter or portion thereof, the Administrative
Agent shall distribute such facility fees to the Banks ratably in accordance
with their respective Pro Rata Shares.
(b) AgentS' and Arrangers' Fees and Closing Fee. MascoTech will
pay to the Agents and to the Arrangers fees in such amounts and at such times as
are agreed to in the Agents and Arrangers Fee Letter and the Administrative
Agent Fee Letter, each dated as of December 10, 1997 and the Administrative
Agent shall distribute out of such fees, closing fees to the Banks on the
Closing Date.
3.10 Optional Termination or Reduction of Commitments.
Subject to Section 5.5, the Borrowers shall have the right at any
time and from time to time, upon one Business Day's prior written notice
to the Administrative Agent, to terminate or proportionately reduce the amount
of the Revolving Credit Commitments or the Alternate Currency Commitments,
provided, that (i) any partial reduction of the amount of the Revolving Credit
Commitments shall be in the amount of $5,000,000 or a multiple of $1,000,000 in
excess thereof and any partial reduction of any Alternative Currency Commitment
shall be in the Approximate Equivalent Amount of $1,000,000 or any integral
multiple thereof, (ii) no such reduction shall be permitted with respect to any
portion of the Revolving Credit Commitments not in excess of the sum of the
Dollar Equivalent of the aggregate outstanding principal amount of all
Revolving Loans, Bid-Option Loans plus Alternative Currency Syndicated Loans
and Swing Line Loans, plus the Letter of Credit Obligations Amount, plus the
Dollar Equivalent of the aggregate amount of all Borrowings for which a Notice
of Borrowing is then pending, plus the aggregate amount of all Letters of
Credit for which a Request for Letter of Credit Issuance is then pending, (iii)
the Commitments may not be terminated if any Loans or Letters of Credit are
then outstanding or any Notice of Borrowing or Request for Letter of Credit
Issuance is then pending and (iv) no such termination or reduction shall be
permitted if, after giving effect thereto, the Dollar Equivalent of the
aggregate principal amount of the outstanding Bid-Option Loans would exceed
fifty percent (50%) of the aggregate amount of the sum of the Revolving Credit
Commitments and the outstanding aggregate principal amount of the Term Loans.
The Revolving Credit Commitments or any portion thereof terminated or reduced
pursuant to this Section may not be reinstated. The accrued facility fees with
respect to the terminated Revolving Credit Commitments or the amount of any
reduction therein shall be payable on the effective date of such notice. Upon
receipt of any notice from the Borrowers pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's share of any reduction of the Commitments. Each such notice
shall be irrevocable by the Borrowers once the Administrative Agent begins
notifying any Bank of the contents thereof.
3.11 Mandatory Termination of Commitments. The Revolving Credit
Commitments shall terminate on the Termination Date. The Term Loan Commitments
shall terminate upon disbursement of the Term Loans on the Closing Date.
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3.12 Borrowing Subsidiaries. MascoTech may at any time or from time
to time, with the consent of the Administrative Agent, which consent shall not
be unreasonably withheld, add as a party to this Agreement any Subsidiary to be
a "Borrowing Subsidiary" hereunder by the execution and delivery to the
Administrative Agent of a duly completed Assumption Letter by such Subsidiary,
with the written consent of MascoTech at the foot thereof. Upon such
execution, delivery and consent, such Subsidiary shall for all purposes be a
party hereto as a Borrowing Subsidiary as fully as if it had executed and
delivered this Agreement. So long as the principal of and interest on any
Loans made to any Borrowing Subsidiary under this Agreement shall have been
repaid or paid in full, all Letters of Credit issued for the account of such
Borrowing Subsidiary have expired or been returned and terminated and all other
obligations (other than contingent indemnification obligations) of such
Borrowing Subsidiary under this Agreement shall have been fully performed,
MascoTech may, by not less than five Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Banks thereof), terminate
such Borrowing Subsidiary's status as a Borrowing Subsidiary.
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC
4.1 Scheduled Principal Payments. (a) General. Unless earlier
payment is required under this Agreement or is made pursuant to Section 4.1(b)
or Section 4.2, on the last day of the Interest Period applicable to each Loan,
the Borrowers shall continue or convert such Loan in accordance with Section
4.8 or repay such Loan.
(b) Repayment of the Term Loans. (i) The Term Loans shall be repaid
by the Borrowers in twenty-five (25) installments payable on the dates set
forth below in the amounts set forth below corresponding to such dates and the
Term Loans shall be permanently reduced by the amount of each installment on
the date payment thereof is made hereunder.
Installment Date Installment Amount
March 31, 1998 $6,250,000
June 30, 1998 $6,250,000
September 30, 1998 $6,250,000
December 31, 1998 $6,250,000
March 31, 1999 $10,000,000
June 30, 1999 $10,000,000
September 30, 1999 $10,000,000
December 31, 1999 $10,000,000
March 31, 2000 $15,000,000
June 30, 2000 $15,000,000
September 30, 2000 $15,000,000
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December 31, 2000 $15,000,000
March 31, 2001 $18,750,000
June 30, 2001 $18,750,000
September 30, 2001 $18,750,000
December 31, 2001 $18,750,000
January 31, 2002 $100,000,000
March 31, 2002 $22,500,000
June 30, 2002 $22,500,000
September 30, 2002 $22,500,000
December 31, 2002 $22,500,000
March 31, 2003 $25,000,000
June 30, 2003 $25,000,000
September 30, 2003 $25,000,000
November 15, 2003 $35,000,000
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Term Loans. In addition, the
then outstanding principal balance of the Term Loans, if any, shall be due and
payable on the Termination Date. No installment of any Term Loan shall be
reborrowed once repaid.
4.2 Prepayments of Principal. The following provisions apply in
respect of prepayment of the Loans, other than Swing Line Loans, by any
Borrower:
(a) The Borrowers may prepay Floating Rate Loans in whole or in part
on any Business Day in amounts aggregating $5,000,000 or multiples of
$1,000,000 in excess thereof (unless such prepayment would cause the aggregate
outstanding principal amount of Floating Rate Loans to be less than $5,000,000,
in which event prepayment may only be made in an amount equal to the entire
outstanding principal amount of Floating Rate Loans), by paying the principal
amount being prepaid together with accrued interest thereon to the date of
prepayment. Each prepayment in part of such Loans shall be applied to such
Loans of the Banks ratably in accordance with their respective shares of the
aggregate outstanding principal amount of the Floating Rate Loans.
(b) The Borrowers may, upon at least three Business Days' notice to
the Administrative Agent, prepay any Eurodollar Rate Syndicated Loan in whole
or in part on any Business Day in the amount of $5,000,000 or the Approximate
Equivalent Amount of $1,000,000 of any Alternate Currency Syndicated Loan or
multiples of $1,000,000 or the Approximate Equivalent Amount of $1,000,000 of
any Alternate Currency in excess thereof (unless, in the case of prepayment of
any Eurodollar Rate Syndicated Loan, such prepayment would cause the aggregate
outstanding principal amount of such Eurodollar Rate Syndicated Loan to be
less than $5,000,000, in which event prepayment may only be made in an amount
equal to the outstanding unpaid principal amount of such Eurodollar Rate
Syndicated Loan), by paying the principal amount being prepaid together with
accrued interest thereon to the date of prepayment; provided, however, that the
Borrowers shall
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compensate the Banks pursuant to Section 5.5 for any losses or expenses
incurred as a result thereof. Each prepayment in part of any Eurodollar Rate
Syndicated Loan shall be applied to the Eurodollar Rate Syndicated Loans
comprising such Borrowing of the Banks ratably in accordance with their
respective shares of the aggregate outstanding principal amount of such Loans.
(c) Unless otherwise required by this Agreement, the Borrowers may
not prepay any Bid-Option Loan in whole or in part without the consent of the
Bank that made such Bid-Option Loan.
(d) Notwithstanding Section 4.2(a), (b) and (c), if on any date:
(i) the sum of (A) the Dollar Equivalent of
the aggregate outstanding principal amount of Loans plus (B)
the Letter of Credit Obligations Amount exceeds the sum of
the aggregate amount of the Revolving Credit Commitments and
the outstanding aggregate principal amount of the Term Loans;
or
(ii) the Dollar Equivalent of the aggregate outstanding
principal amount of Bid-Option Loans exceeds fifty percent
(50%) of the sum of the Revolving Credit Commitments and the
aggregate outstanding principal amount of the Term Loans; or
(iii) the Dollar Equivalent of the aggregate outstanding
principal amount of Alternate Currency Bid-Option Loans and the
Alternate Currency Syndicated Loans exceeds $200,000,000,
then the Borrowers shall pay forthwith the principal amount of such excess,
together with accrued interest thereon to the date of payment; provided,
however, that the Borrowers shall compensate the Banks pursuant to Section 5.5
for any losses or expenses incurred as a result thereof; and provided further,
however, that (A) no such payment otherwise required under clause (i) of this
Section 4.2(d) solely because of currency exchange rate fluctuations affecting
the Dollar Equivalent of the aggregate outstanding principal amount of
Alternate Currency Syndicated Loans or Alternate Currency Bid-Option Loans
shall be required unless such payment is due on a date when a payment of
principal of any Loan is otherwise due hereunder, and (B) notwithstanding
clause (A) of this proviso, no such payment otherwise required under subsection
(ii) or (iii) of this Section 4.2(d) shall be required if due solely because of
currency exchange rate fluctuations affecting the Dollar Equivalent of the
aggregate outstanding principal amount of Alternate Currency Syndicated Loans
and Alternate Currency Bid-Option Loans since the last date on which any of
such Alternate Currency Syndicated Loans or Alternate Currency Bid-Option
Loans, as the case may be, were made.
(e) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (in accordance with Section 4.4) of such
prepayment. Each such notice shall be irrevocable by the Borrowers once the
Administrative Agent begins notifying any Bank of the contents thereof.
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(f) At any time that the most recently determined Senior Debt
Coverage Ratio is greater than 3.0 to 1.0 (after giving pro forma effect to the
application of proceeds prescribed herein below), upon the consummation of any
Asset Sale or any Financing by MascoTech or any of its Consolidated
Subsidiaries (other than (i) sales of inventory in the ordinary course of
business and (ii) sales or other dispositions of equipment which in the
reasonable judgment of MascoTech is no longer used or useful in the business of
MascoTech) except to the extent that the Net Cash Proceeds of such Asset Sale,
when combined with the Net Cash Proceeds of all such Asset Sales during the
immediately preceding twelve-month period, do not exceed $25,000,000, and
except as provided in the immediately succeeding sentence, within three (3)
Business Days after MascoTech's or any of its Subsidiaries' receipt of any Net
Cash Proceeds from any such Asset Sale or Financing, the Borrowers shall make a
mandatory prepayment in an amount equal to one hundred percent (100%) of such
Net Cash Proceeds or such lesser amount as is sufficient to reduce the Senior
Debt Coverage Ratio (calculated using EBITDA for the most recently concluded
four fiscal quarter period and using Debt as of the last day of such four
fiscal quarter period, taking into account the reduction in such Debt as a
result of such mandatory prepayment on a pro forma basis) to 3.0 to 1.0. Net
Cash Proceeds of Asset Sales of capital assets with respect to which the
Borrowers shall have given the Agent written notice of its intention to replace
such capital assets within six months following such Asset Sale shall not be
subject to the provisions of the preceding sentence unless and to the extent
that such applicable period shall have expired without such replacement having
been made. Each such mandatory prepayment shall be applied first to the Term
Loan installment due January 31, 2002 and after such installment is paid in
full to each of the then remaining installments payable under the Term Loans in
the inverse order of maturity; and following the payment in full of the Term
Loans, the amount of each such prepayment shall be applied to repay Revolving
Loans (but shall reduce Revolving Loan Commitments only at the option of the
Borrowers). Subject to the preceding provisions of this Section 4.2(f), all of
the mandatory prepayments made pursuant to this Section 4.2(f) shall be applied
first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date. The Administrative Agent shall hold the remaining portion of such
mandatory prepayment as cash collateral in an interest bearing deposit account
and shall apply funds from such account to Eurodollar Rate Loans at the end of
the applicable Interest Period.
(g) All voluntary prepayments of the Term Loans shall be applied, at
the Borrowers' option, either to the installment due January 31, 2002 or to the
other remaining installments of the Term Loans, pro rata, or any combination of
the foregoing.
(h) If on the last Business Day of any month, the Dollar Equivalent
of all outstanding Alternate Currency Syndicated Loans under the Alternate
Currency Addenda exceeds 105% of the aggregate Alternate Currency Commitments
with respect thereto, the applicable Borrowers shall on such date prepay
Alternate Currency Syndicated Loans in an aggregate amount such that after
giving effect thereto the Dollar Equivalent of all such Alternate Currency
Syndicated Loans is less than or equal to the aggregate Alternate Currency
Commitments with respect thereto.
4.3 Interest Payments. The Borrowers shall pay interest to the Banks
on the unpaid principal amount of each Loan, for the period commencing on the
date such Loan is made until such
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Loan is paid in full, on each Interest Payment Date and at maturity
(whether at stated maturity, by acceleration or otherwise), and thereafter on
demand, at the following rates per annum (subject, however, to the provisions
of Section 11.12):
(a) With respect to each Floating Rate Loan, at the Floating Rate.
(b) With respect to each Loan which bears interest at the Eurodollar
Rate, the Eurodollar Rate, provided that if any Eurodollar Rate Syndicated
Revolving Loan or any portion thereof shall, as a result of clause (c) of the
definition of Eurodollar Rate Interest Period, have an Interest Period of less
than one month, such Loan or portion thereof shall bear interest during such
Interest Period at the Floating Rate.
(c) With respect to each Eurodollar Rate Bid-Option Loan, the
Bid-Option Eurodollar Rate, provided that if any Eurodollar Rate Bid-Option
Loan or any portion thereof shall, as a result of clause (c) of the definition
of Eurodollar Rate Interest Period, have an Interest Period of less than one
month, in the case of a Eurodollar Rate Syndicated Loan, or fifteen days, in
the case of a Eurodollar Rate Bid-Option Loan, such Loan or portion thereof
shall bear interest during such Interest Period at the Floating Rate.
(d) With respect to each Absolute Rate Dollar Bid-Option Loan and
Alternate Currency Bid-Option Loan, the Bid-Option Absolute Rate quoted for
such Loan by the Bank making such Loan.
(e) With respect to each Alternate Currency Syndicated Loan, the rate
prescribed in the applicable Alternate Currency Addendum.
(f) Notwithstanding the foregoing subsections (a) through (e), the
Borrowers shall (subject to the provisions of Section 11.12), at the option of
the Required Banks, pay interest on demand at the Overdue Rate on the
outstanding principal amount of all Loans and any other amount payable by the
Borrowers hereunder after the occurrence and during the continuance of an Event
of Default under Section 9.1(a), (b), (d), (e), (f), (g) or (k).
4.4 Payment Procedures.
(a) All payments of any facility fees, closing fees, Letter of
Credit fees, Agent's fees, or other fees hereunder and of principal of, and
interest on, the Loans, other than Alternate Currency Loans, and of
reimbursement obligations in respect of Letters of Credit shall be made in
Dollars and in funds immediately available at the Administrative Agent's
principal office in Detroit, Michigan not later than 1:00 p.m. (Detroit time) on
the date on which such payment shall become due. All payments of principal of,
and interest on, the Alternate Currency Loans shall be made in the currencies in
which such Loans are denominated and in funds immediately available, freely
transferable and cleared at the office or branch from which the Loan was made
under Section 3.4(a) and 3.6 not later than 3:00 p.m. local time on the date on
which such payment shall become due. Promptly upon receipt of any payment of
principal of the Alternate Currency Loans the Bank receiving
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such payment shall give written notice to the Administrative Agent by telex or
telecopy of the receipt of such payment, which notice shall be substantially
in the form attached hereto as Exhibit I. Whenever any payment of principal
of, or interest on, the Loans or of any fee shall be due on a day which is not
a Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day (unless as a result thereof, in respect of Eurodollar
Rate Loans and Alternate Currency Syndicated Loans, such date would fall in the
next calendar month, in which case it shall be advanced to the next preceding
Business Day) and, in the case of a payment of principal, interest thereon
shall be payable for any such extended time.
(b) Payments of principal of Syndicated Loans that comprise a
Syndicated Borrowing, including any Substitute Loan made by a Bank as part of
any Borrowing of a Eurodollar Rate Syndicated Revolving Loan, shall be promptly
distributed by the Administrative Agent to the Banks that made such Syndicated
Loans ratably in proportion to their respective shares of the outstanding
principal amount of such Syndicated Borrowing. Payments of interest on
Syndicated Loans that comprise a Syndicated Borrowing, including any Substitute
Loan made by a Bank as part of any Borrowing of a Eurodollar Rate Syndicated
Revolving Loan, shall be promptly distributed by the Administrative Agent to the
Banks that made such Syndicated Loans so that each such Bank receives a portion
of such payment equal to the amount of interest then owing to such Bank on such
Loans multiplied by a fraction, the denominator of which is the total amount of
interest then owing to all such Banks on such Loans and the numerator of which
is the amount of such payment. Payments of principal of any Dollar Bid-Option
Loans that comprise a Dollar Bid-Option Borrowing shall be promptly distributed
by the Administrative Agent to the Banks that made such Dollar Bid-Option Loans
ratably in accordance with their respective Dollar Bid-Option Percentages
together with interest ratably in accordance with the respective interest rates
applicable to such Loans.
(c) During any period when Dollar Bid-Option Loans are
outstanding, if the Administrative Agent cannot reasonably determine
whether a particular payment received by the Administrative Agent from the
applicable Borrower was intended to be applied to the principal of or interest
on one or more Dollar Bid-Option Borrowings or to the principal of or interest
on Syndicated Borrowings, or if the amount of any payment by the Borrowers is
insufficient to pay all amounts then due and payable with respect to Dollar
Bid-Option Loans and Syndicated Loans (including Substitute Loans), the
Administrative Agent shall first apportion such payment between the Dollar Bid-
Option Loans and the Syndicated Loans (including Substitute Loans) (i) if such
payment is of principal, ratably in accordance with the aggregate principal
amount of each such type of Loans on which payment is then due, and (ii) if
such payment is of interest, ratably in accordance with the aggregate amount of
interest that is then due on each such type of Loans. After such
apportionment, (i) the Administrative Agent shall distribute the portion of the
payment received and allocated to the Syndicated Loans (including Substitute
Loans) to the Banks as provided for payments of principal of or interest on, as
the case may be, Syndicated Loans under Section 4.4(b), and (ii) the portion of
the payment received and allocated to the Dollar Bid-Option Loans on which a
payment is then due shall first be allocated among the different Dollar
Bid-Option Borrowings of which such Dollar Bid-Option Loans are a part (A) if
such payment is of principal, ratably in accordance with the aggregate
principal amount of each such Dollar Bid-Option Borrowing, and (B) if such
payment is of interest, ratably in accordance with the
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aggregate amount of interest that is then due on each such Dollar Bid-Option
Borrowing. After such allocation, the Administrative Agent shall
distribute the amount allocated to each Dollar Bid-Option Borrowing to the
Banks that made the Dollar Bid-Option Loans comprising such Dollar Bid-Option
Borrowing ratably in accordance with their respective Dollar Bid-Option
Percentages.
(d) Any prepayments of Bid-Option Loans made under Section
4.2(d) may be applied to any one or more Bid-Option Borrowings as the
Borrowers may select; provided that such payments of principal shall be applied
by the Administrative Agent, in the case of Dollar Bid-Option Loans, or
made directly by the Borrowers, in the case of Alternate Currency Bid-Option
Loans, to the Banks participating in any such Bid-Option Borrowing ratably in
accordance with their respective Dollar Bid-Option Percentages or Alternate
Currency Bid-Option Percentages, as the case may be together with interest
ratably in accordance with the respective interest rates applicable to such
Loans.
4.5 Computation of Interest and Fees. Except as may be otherwise
prescribed in the applicable Alternate Currency Addendum, facility fees,
Administrative Agent fees and Letter of Credit fees, and interest on the
Floating Rate Loans and Alternate Currency Syndicated Loans and other amounts
due hereunder, other than Fixed Rate Loans (other than Alternate Currency
Syndicated Loans), shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. Interest on the Fixed Rate Loans
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.6 No Setoff or Deduction. All payments of principal of and
interest on the Loans and other amounts payable by the Borrowers hereunder
shall be made by the Borrowers without setoff or counterclaim, and free and
clear of, and without deduction or withholding for, or on account of, any
present or future taxes, levies, imposts, duties, fees, assessments, or other
charges of whatever nature, imposed by any governmental authority, or by any
department, agency or other political subdivision or taxing authority.
4.7 Types for all Loans. The Syndicated Loans (other than Alternate
Currency Syndicated Loans) may be Floating Rate Loans or Eurodollar Rate Loans,
or a combination thereof, selected by the applicable Borrower in accordance
with Section 4.8. The Term Loans and Revolving Loans made on the Closing Date
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Rate Loans as provided in
Section 4.8. The applicable Borrower may select, in accordance with Section
4.8, Types and Interest Periods applicable to portions of the Revolving Loans
and the Term Loans. Notwithstanding anything herein to the contrary, the
Borrower may not, without the written consent of the Administrative Agent,
select the Eurodollar Rate with Interest Periods other than seven (7) or
fourteen (14) days for any Loans during the Syndication Period.
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4.8 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Loans.
(A) Right to Convert. The Borrowers may elect from time to time,
subject to the provisions of Section 4.7 and this Section 4.8, to convert all
or any part of a Loan (other than a Swing Line Loan, an Alternate Currency
Syndicated Loan or a Bid-Option Loan) of any Type into any other Type or Types
of Loans; provided that any conversion of any Eurodollar Rate Syndicated Loan
shall be made on, and only on, the last day of the Interest Period applicable
thereto, unless the applicable Borrower makes the payments required pursuant to
Section 5.5.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Syndicated Loans. Eurodollar Rate Syndicated
Loans shall continue as Eurodollar Rate Syndicated Loans until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Rate
Syndicated Loans shall be automatically converted into Floating Rate Loans
unless the Borrower shall have given the Administrative Agent notice requesting
that, at the end of such Interest Period, such Eurodollar Rate Syndicated Loans
continue as a Eurodollar Rate Syndicated Loan.
(C) No Conversion After Default. Notwithstanding anything to the
contrary contained in Section 4.8(A) or Section 4.8(B), no Loan may be
converted into or continued as a Eurodollar Rate Syndicated Loan if the
Required Banks so direct after any Default or Event of Default has occurred and
is continuing.
(D) Conversion/Continuation Notice. The Borrowers shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice"),
in substantially the form attached hereto as Exhibit T or Exhibit C-1, as
applicable, of each conversion of a Floating Rate Loan into a Eurodollar Rate
Syndicated Loan or continuation of a Eurodollar Rate Syndicated Loan not later
than 11:00 a.m. (Detroit time) three Business Days prior to the date of the
requested conversion or continuation, specifying: (1) the requested date
(which shall be a Business Day) of such conversion or continuation; (2) the
amount and Type of the Loan to be converted or continued; and (3) the amounts
of Eurodollar Rate Syndicated Loan(s) into which such Loan is to be converted
or continued and the duration of the Interest Periods applicable thereto.
4.9 Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the essence.
Such Alternate Currency shall be the currency of account and payment of such
Loans under this Agreement and the Notes. Notwithstanding anything in this
Agreement, the obligation of the applicable Borrower in respect of such Loans
shall not be discharged by an amount paid in any other currency or at another
place, whether pursuant to a judgment or otherwise, to the extent the amount so
paid, on prompt conversion into the applicable Alternate Currency and transfer
to such Bank under normal banking procedure, does not yield the amount of such
Alternate Currency due under this Agreement and the Notes. In the event that
any payment, whether pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment
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of the amount of such Alternate Currency due under this Agreement and the
Notes, such Bank shall have an independent cause of action against the
Borrowers for the currency deficit.
ARTICLE V.
CHANGE IN CIRCUMSTANCES
5.1 Impossibility; Interest Rate Inadequate or Unfair. (a) If before
the beginning of any Eurodollar Rate Interest Period:
(i) the Administrative Agent is advised by any Reference Bank
that deposits in Dollars (in the applicable amounts) are not
being offered to such Reference Bank in the relevant market for
such Eurodollar Rate Interest Period, or
(ii) the Required Banks advise the Administrative Agent that the
Eurodollar Base Rate will not adequately and fairly reflect the
cost to such Banks of maintaining, making or funding, for such
Eurodollar Rate Interest Period, Eurodollar Rate Syndicated Loans
to which such Eurodollar Rate Interest Period applies,
the Administrative Agent shall forthwith give notice thereof to the Borrowers
and the Banks, whereupon until the Administrative Agent notifies the
Borrowers that the circumstances giving rise to such suspension no longer
exist, the obligations, if any, of the Banks to make Eurodollar Rate Loans, as
the case may be, shall be suspended. In the case of Eurodollar Rate Loans,
unless the Borrowers notify the Administrative Agent not later than 3:00 p.m.
(Detroit time) on the Business Day before the beginning of such Eurodollar Rate
Interest Period that the Borrowers elect not to borrow on such date, such
Borrowing shall, subject to the provisions of Section 8.1, be a Floating Rate
Borrowing. Promptly after the Administrative Agent receives any such notice
from the Borrowers under this Section 5.1(a), the Administrative Agent shall
notify each Bank of the contents thereof. Any such notice from the Borrowers
shall be irrevocable once the Administrative Agent begins notifying any Bank of
the contents thereof.
(b) If deposits in Dollars (in the applicable amounts) are not
being offered to a Reference Bank in the relevant market for any Eurodollar Rate
Interest Period, by reason of circumstances affecting such Reference Bank and
not affecting the London or Nassau Interbank Market, generally, the
Administrative Agent shall, in consultation with the Borrowers and with the
consent of the Required Banks, appoint another Bank to act as a Reference Bank
hereunder.
5.2 Illegality. If, after the date of this Agreement, the
introduction of, or any change in, any applicable law, rule or regulation or in
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof or compliance by any
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Bank (or its Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such authority shall make it
unlawful or impossible for such Bank (or its Applicable Lending Office) to
honor its binding legal obligations, if any, hereunder to make, maintain or
fund any type of Fixed Rate Loans, such Bank shall so notify the Administrative
Agent, and the Administrative Agent shall forthwith give notice thereof to the
Borrowers, whereupon until such Bank notifies the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation,
if any, of such Bank to make such type of Fixed Rate Loans shall be suspended.
Before any Bank gives any notice of unlawfulness or impossibility to the
Administrative Agent under this Section 5.2, such Bank shall designate a
different Applicable Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. Upon receipt of such notice, the applicable
Borrowers shall prepay in full the then outstanding principal amount of each
affected Fixed Rate Loan of such Bank together with accrued interest thereon
(a) on the last day of the then current Interest Period applicable to such Loan
if such Bank may lawfully continue to maintain and fund such Loan to such day,
or (b) immediately if such Bank may not lawfully continue to fund and maintain
such Loan to such day. Concurrently with prepaying each such Fixed Rate Loan,
the applicable Borrowers shall borrow a Floating Rate Loan (or, if the
applicable Borrowers so elect by at least three Business Days' notice to the
Administrative Agent and such Bank, a Eurodollar Rate Syndicated Loan of an
unaffected type) in an equal principal amount from such Bank, for an Interest
Period coinciding with the remaining term of the Interest Period applicable to
such Fixed Rate Loan, and such Bank shall make such a Loan, provided that there
has been no acceleration of the amounts due under the Notes pursuant to Article
IX.
5.3 Increased Cost; Yield Protection.
(a) If, after the date hereof, the introduction of, or any
change in, any applicable law, treaty, rule or regulation (whether domestic
or foreign and including, without limitation, the Federal Deposit
Insurance Act, as amended, and Regulation D of the Board of Governors of the
Federal Reserve System) or in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive of any such authority,
central bank or comparable agency (whether or not having the force of law),
(i) shall subject any Bank (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its obligation to
make any Loans, its Notes, any of its Loans or any of the
Letters of Credit or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on any of its Fixed Rate Loans or in
respect of its obligation, if any, to make any Loans or to
participate in the risk of Letters of Credit (except for changes
in the rate of tax on the overall net income of such Bank or its
Applicable Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Applicable Lending
Office is located), or
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(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding with
respect to any Eurodollar Rate Syndicated Loan any reserve
requirements to the extent included in clause (b) of the
definition of Eurodollar Base Rate when calculating the
Eurodollar Base Rate with respect to such Eurodollar Rate
Syndicated Loan), special deposit or similar requirement
(including, without limitation, any deposit insurance assessment
in respect of deposits held outside the United States, against
assets of, deposits with or for the account of, or credit
extended by, any Bank's Applicable Lending Office, or shall
impose on any Bank (or its Applicable Lending Office or the
relevant interbank market or the United States certificate of
deposit market) any other condition affecting its obligation, if
any, to make Loans or to participate in the risk of Letters of
Credit or affecting its Loans or the Letters of Credit or
affecting the Borrowers' obligations under the Notes in respect
of such Loans,
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining its existing or future
Fixed Rate Loans or of participating in the risk of Letters of Credit, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under the Notes (in respect
of Fixed Rate Loans or Letters of Credit) by an amount deemed by such Bank to
be material, then such Bank may notify the Borrowers (with a copy of any such
notice to be provided to the Administrative Agent) of any such fact of which it
has knowledge and demand compensation therefor; provided that, if such Bank
fails to demand such compensation (or notify the Borrowers that it will or may
demand such compensation) promptly upon becoming aware of the facts entitling
it to do so or, if such Bank is contesting the cause of such increased cost or
reduced sum received or receivable, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Bank who is responsible
for the administration of the credit outstanding under this Agreement from such
Bank to the Borrowers becoming aware of such facts, such Bank shall not be
entitled to such compensation for the period before the date on which it
actually demands (or notifies the Borrowers that it will or may demand) such
compensation; provided, further, that if such Bank is contesting the cause of
such increased cost or reduced sum received or receivable, such Bank shall not
in any event be entitled to such compensation for any period prior to six
months before it notifies the Borrowers that such Bank may or will demand such
compensation. The Borrowers agree to pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction
within 15 days after demand by such Bank. A certificate of such Bank setting
forth the basis for determining such additional amount or amounts necessary to
compensate such Bank shall be conclusive in the absence of manifest error.
Each such Bank will designate a different Applicable Lending Office if such
designation would avoid the need for, or reduce the amount of such compensation
and would not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. In the event that any Borrower is required to compensate any Bank
for any increased cost to such Bank pursuant to this Section 5.3(a), such
Borrower shall have the right, upon at least five Business Days' prior notice
to such Bank through the Administrative Agent,
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to prepay in full any outstanding Fixed Rate Loans that are related to such
increased cost of such Bank, together with accrued interest thereon to the
date of prepayment; provided that prepayment of such Fixed Rate Loans shall not
relieve such Borrower of its obligation to compensate such Bank in accordance
with this Section 5.3(a), the amount of which compensation shall be due at the
time of such prepayment, notwithstanding any other provision of this Section
5.3(a). Concurrently with prepaying each such Fixed Rate Loan of such Bank,
such Borrower shall borrow a Floating Rate Loan (or, if such Borrower shall so
elect in its notice of prepayment, a Fixed Rate Loan of another Type) in an
equal principal amount from such Bank for an Interest Period coinciding with
the remaining term of the Interest Period applicable to such Fixed Rate Loan,
and such Bank shall make such a Floating Rate Loan (or Fixed Rate Loan of the
other Type), provided that there has been no acceleration of the amount due
under the Notes pursuant to Article IX. The Borrowers shall pay compensation
owing to any Bank(s) under this Section 5.3(a) notwithstanding any subsequent
replacement (pursuant to Section 11.13) of the Bank(s) making demand for such
compensation.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and
whether or not presently applicable to any Bank or Administrative Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
Administrative Agent with any guideline, request or directive of any such
authority (whether or not having the force of law), including any risk-based
capital guidelines, affects or would affect the amount of capital required or
expected to be maintained by such Bank or the Administrative Agent (or any
corporation controlling such Bank or the Administrative Agent) and such Bank or
the Administrative Agent, as the case may be, determines that the amount of
such capital is increased by or based upon the existence of such Bank's or
Agent's obligations or Loans hereunder and such increase has the effect of
reducing the rate of return on such Bank's or Agent's (or such controlling
corporation's) capital as a consequence of such obligations or Loans hereunder
to a level below that which such Bank or the Administrative Agent (or such
controlling corporation) could have achieved but for such circumstances (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank or the Administrative Agent to be material, then such Bank
or the Administrative Agent may notify the Borrowers of any such fact of which
it has knowledge and the Borrowers shall pay to such Bank or the
Administrative Agent, as the case may be, from time to time, upon request by
such Bank (with a copy of such request to be provided to the Administrative
Agent) or the Administrative Agent, additional amounts sufficient to compensate
such Bank or Administrative Agent (or such controlling corporation) for any
increase in the amount of capital and reduced rate of return which such Bank or
the Administrative Agent reasonably determines to be allocable to the existence
of such Bank's or Agent's obligations or Loans hereunder; provided that, if
such Bank or the Administrative Agent fails to notify the Borrowers of any such
fact promptly upon becoming aware thereof or, if such Bank or the
Administrative Agent is contesting the cause of such increase in the amount of
capital or reduced rate of return, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Bank who is responsible
for the administration of the credit outstanding under this Agreement from such
Bank to the Borrowers becoming aware of any such fact, such Bank or the
Administrative Agent, as the case may be, shall not be entitled to such
compensation for the period before the date on which it actually notifies the
Borrowers of such fact; provided, further, that if such Bank or the
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Administrative Agent is contesting the cause of such increase in the amount of
capital or reduced rate of return, such Bank or the Administrative Agent,
as the case may be, shall not in any event be entitled to such compensation for
any period prior to six months before it notifies the Borrowers that such Bank
or the Administrative Agent, as the case may be, may or will demand such
compensation. A statement as to the amount of such compensation, prepared in
good faith and in reasonable detail by such Bank or the Administrative Agent,
as the case may be, and submitted by such Bank or Administrative Agent to the
Borrowers, shall be conclusive in the absence of manifest error in computation.
The Borrowers shall pay such compensation for the periods covered by such
notice notwithstanding any replacement (pursuant to Section 11.13) of the
Bank(s) making demand for such compensation.
5.4 Substitute Loans. If (a) the obligation, if any, of any Bank to
make any type of Fixed Rate Loans has been suspended pursuant to Section 5.2 or
(b) any Bank has demanded compensation under Section 5.3(a) and the Borrowers
shall, by at least five Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section 5.4
shall apply to such Bank, then, unless and until such Bank notifies the
Borrowers that the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(i) all Loans which would otherwise be made by such Bank as the
affected type of Fixed Rate Loans shall be made instead as Floating Rate Loans,
for an Interest Period coincident with the related Fixed Rate Borrowing, and
(ii) after each of its affected Fixed Rate Loans has been repaid,
all payments of principal which would otherwise be applied to repay such Fixed
Rate Loans shall be applied to repay its Substitute Loans instead.
5.5 Funding Losses. If any Borrower makes any payment of principal
with respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.10, 4.2
(other than 4.2(f)), 5.1, 5.2, 5.3 or 5.4, Article IX or otherwise), or if the
applicable Borrower fails to borrow any Fixed Rate Loan after the related
Notice of Borrowing has been given to the Administrative Agent, or if the
applicable Borrower fails to make any payment of principal or interest in
respect of a Fixed Rate Loan when due, the applicable Borrower shall reimburse
each Bank on demand for any resulting loss or expense incurred by such Bank,
including without limitation any loss incurred in obtaining, liquidating or
employing deposits from third parties, whether or not such Bank shall have
funded or committed to fund such Loan. A statement as to the amount of such
loss or expense, prepared in good faith and in reasonable detail by such Bank
and submitted by such Bank to the applicable Borrower, shall be conclusive and
binding for all purposes absent manifest error in computation. Calculation of
all amounts payable to each Bank under this Section 5.5 shall be made as though
such Bank shall have actually funded or committed to fund the relevant Fixed
Rate Loan through the purchase of an underlying deposit in an amount equal to
the amount of such Loan and having a maturity comparable to the related
Interest Period; provided, however, that such Bank may fund any Fixed Rate Loan
in any manner it sees fit and the foregoing assumption shall be utilized only
for the purpose of calculation of amounts payable under this Section 5.5. In
connection with any
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assignment by any Bank of any portion of the Loans made pursuant to Section
11.6 and made during the Syndication Period, and if, notwithstanding the
provisions of Section 4.7, the Borrowers have requested and the Administrative
Agent has consented to the use of the Eurodollar Rate with an Interest Period
other than seven (7) or fourteen (14) days, the Borrowers shall be deemed to
have repaid all outstanding Eurodollar Rate Loans as of the effective date of
such assignment and reborrowed such amount as a Floating Rate Loan and/or
Eurodollar Rate Loan (chosen in accordance with the provisions of Section 4.7)
and the indemnification provisions under this Section 5.5 shall apply.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Administrative
Agent and the Banks that:
6.1 Corporate Existence and Power. Each of MascoTech and its
Domestic Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of its incorporation, and is duly
qualified as a foreign corporation in each State or other jurisdiction in the
United States of America in which the conduct of its operations or the
ownership of its properties requires such qualification and failure so to
qualify would materially and adversely affect MascoTech and its Subsidiaries
taken as a whole. All of such corporations have all requisite corporate power
to own their properties and to carry on their businesses, considered as a
whole, substantially as now owned and as now being conducted. Each of the
Borrowers has full power, authority and legal right to execute and deliver this
Agreement and the Notes, to perform and observe the terms and provisions hereof
and thereof, and to borrow hereunder.
6.2 Corporate Authority; No Violations; Governmental Filings; Etc.
The execution, delivery and performance by each of the Borrowers of this
Agreement, the issuance of the Notes and the borrowings hereunder have been
duly authorized by all necessary corporate action and do not and will not
violate the provisions of any applicable law or regulation or of the
certificate of incorporation or by-laws of MascoTech or any Subsidiary or any
order of any court, regulatory body or arbitral tribunal and do not and will
not result in the breach of, or constitute a default or require any consent
under, or create any lien, charge or encumbrance upon any property or assets of
MascoTech or any Subsidiary pursuant to, any indenture or other agreement or
instrument to which MascoTech or any Subsidiary is a party or by which
MascoTech or any Subsidiary or its property may be bound or affected. Neither
the execution, delivery and performance of this Agreement nor the issuance of
the Notes nor any borrowing hereunder requires, for the validity thereof, nor
does the enforceability of this Agreement or any of the Notes require, any
filing with, or consent, authorization or approval of, any state or federal
agency or regulatory authority, other than filings, consents or approvals which
have been made or obtained or which, in the case of any such borrowing, will be
made or obtained prior to the due date for such filing, consent or approval.
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6.3 Binding Effect. This Agreement constitutes, and the Notes when
executed and delivered by each Borrower for value will constitute, the legal,
valid and binding obligations of such Borrower, enforceable against such
Borrower in accordance with their respective terms.
6.4 Litigation. There are no suits, proceedings, or actions at law
or in equity or by or before any governmental commission, board, bureau, or
other administrative agency, pending or, to the knowledge of the Borrowers,
threatened against MascoTech or any of its Subsidiaries or affecting MascoTech
or any of its Subsidiaries, which, in the reasonable opinion of MascoTech,
either (i) are likely to have a material adverse effect on the financial
condition or business of MascoTech and its Subsidiaries taken as a whole or
(ii) will in any manner affect the enforceability or validity of this Agreement
or any Note.
6.5 Taxes. MascoTech and each Subsidiary has filed (or has obtained
extensions of the time by which it is required to file) all United States
federal income tax returns, and all other tax returns which are required to be
filed and are material to the business, operations or financial position of
MascoTech and its Subsidiaries taken as a whole, and has paid all taxes shown
due pursuant to such returns or pursuant to any assessment received by
MascoTech or any Subsidiary, except such taxes, if any, as are being contested
in good faith and as to which, in the reasonable opinion of MascoTech, adequate
reserves have been provided in accordance with generally accepted accounting
principles. MascoTech does not know of any proposed tax assessment against it
or any Subsidiary or of any basis for one, except to the extent any such
assessment has been, in the reasonable opinion of MascoTech, adequately
provided for in the consolidated tax reserves of MascoTech and its Subsidiaries
in accordance with generally accepted accounting principles.
6.6 Financial Condition. The consolidated balance sheet of MascoTech
and its Consolidated Subsidiaries and consolidated statements of income,
shareholders' equity and cash flows of MascoTech and its Consolidated
Subsidiaries for the fiscal year ended December 31, 1996, certified by Coopers
& Lybrand, independent certified public accountants, and the interim unaudited
consolidated balance sheet and interim unaudited consolidated statements of
income, shareholders' equity and cash flows of MascoTech and its Consolidated
Subsidiaries, as of or for the nine-month period ended on September 30, 1997,
copies of which have been furnished to the Banks, fairly present the
consolidated financial position of MascoTech and its Consolidated Subsidiaries
as at the dates thereof, and the consolidated results of operations of
MascoTech and its Consolidated Subsidiaries for the respective periods
indicated, all in accordance with generally accepted accounting principles
consistently applied (except as disclosed in the notes thereto and subject, in
the case of interim statements, to year-end audit adjustments). Except as
disclosed in the financial statements as of or for the nine-month period ended
September 30, 1997, there has been no material adverse change in the
consolidated operations or condition, financial or otherwise, of MascoTech and
its Consolidated Subsidiaries considered as a whole, since December 31, 1996.
6.7 Compliance with ERISA. Each of MascoTech and each ERISA
Affiliate of MascoTech (a) has fulfilled its obligations under the minimum
funding standards of ERISA and the
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Code with respect to each Plan and (b) is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code with
respect to each Plan. Neither MascoTech nor any ERISA Affiliate of MascoTech
has (x) sought a waiver of the minimum funding standard under Section 412 of
the Code in respect of any Plan, (y) failed to make any contribution or payment
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or
made any amendment to any Plan or Benefit Arrangement, which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Code, in each case securing an amount greater than
$10,000,000, or (z) incurred any liability under Title IV of ERISA, other than
a liability to the PBGC for premiums under Section 4007 of ERISA, which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of MascoTech and its Consolidated
Subsidiaries.
6.8 Environmental Matters. In the ordinary course of its business,
MascoTech conducts appropriate reviews of the effect of Environmental Laws on
the business, operations and properties of MascoTech and its Subsidiaries, in
the course of which it identifies and evaluates pertinent liabilities and costs
(including, without limitation, capital or operating expenditures required for
clean-up or closure of properties presently or previously owned or for the
lawful operation of its current facilities, required constraints or changes in
operating activities, and evaluation of liabilities to third parties, including
employees, together with pertinent costs and expenses). On the basis of this
review, MascoTech has reasonably concluded that Environmental Laws are not
likely to have a material adverse effect on the business, financial position or
results of operations of MascoTech and its Consolidated Subsidiaries,
considered as a whole.
6.9 Compliance with Laws. MascoTech complies, and has caused each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder), except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings and MascoTech has
established appropriate reserves for liability for noncompliance therewith in
accordance with generally accepted accounting principles, (b) no officer of
MascoTech is aware that MascoTech or the relevant Subsidiary has failed to
comply therewith, or (c) MascoTech has reasonably concluded that failure to
comply is not likely to have a material adverse effect on the business,
financial position or results of operations of MascoTech and its Consolidated
Subsidiaries, taken as a whole.
6.10 Subordinated Debt. The existing Subordinated Debt evidenced by
the 41/2% Convertible Subordinated Debentures due 2003 in the original
principal amount of $345,000,000 is and shall be subordinated to all Loans
under this Agreement on the same terms that are applicable to the Existing Bank
Facility.
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ARTICLE VII.
COVENANTS
Until all the Commitments and Letters of Credit have expired or been
terminated and all Loans and reimbursement and other obligations (other than
contingent indemnification obligations) of the Borrowers hereunder have been
paid in full, each of the Borrowers covenants that:
7.1 Financial Statements. MascoTech will deliver to each of the
Banks:
(a) as soon as practicable and in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of
MascoTech, (i) an unaudited consolidated balance sheet of MascoTech and its
Consolidated Subsidiaries, as at the end of each such quarter, and (ii)
unaudited consolidated statements of income and cash flows of MascoTech and its
Consolidated Subsidiaries, for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, setting forth in each of
the statements required by this subsection (a), in comparative form,
corresponding figures as of the end of and for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer or chief accounting
officer of MascoTech as having been prepared in all material respects in
accordance with generally accepted accounting principles and as to fairness of
presentation;
(b) as soon as practicable and in any event within 95 days after
the end of each fiscal year of MascoTech, (i) a consolidated balance sheet of
MascoTech and its Consolidated Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, shareholders' equity, and cash flows of
MascoTech and its Consolidated Subsidiaries for such year, setting forth in
each of the statements required by this subsection (b), in comparative form,
corresponding figures as of the end of and for the preceding fiscal year, and
all in reasonable detail and certified without material qualifications by
Coopers & Lybrand, or by other independent certified public accountants of
recognized national standing selected by MascoTech and reasonably acceptable to
the Administrative Agent;
(c) as soon as practicable and in any event within 30 days after
the sending or filing thereof, copies of all such financial statements and
reports as it shall send to its security holders and of all final
prospectuses under the Securities Act of 1933 (other than form S-8), reports on
forms 10-Q, 10-K and 8-K and all similar regular and periodic reports filed by
it (i) with any federal department, bureau, commission or agency from time to
time having jurisdiction with respect to the sale of securities or (ii) with
any securities exchange;
(d) if and when MascoTech or any ERISA Affiliate of MascoTech
(i) gives or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given
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to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails
to make any payment or contribution to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of MascoTech setting forth
details as to such occurrence and action, if any, which MascoTech or applicable
ERISA Affiliate is required or proposes to take; provided that no such
certificate shall be required unless the aggregate unpaid actual or potential
liability of MascoTech and the ERISA Affiliates involved in all events referred
to in clauses (ii) through (vii) above of which officers of MascoTech have
obtained knowledge and have not previously reported under this subparagraph (d)
exceeds $15,000,000; and
(e) with reasonable promptness, such other information
regarding the financial condition of MascoTech or any of its Subsidiaries
as any Bank may from time to time reasonably request.
7.2 Certificates of No Default and Compliance.
(a) Concurrently with each delivery of the financial statements
pursuant to subsections (a) and (b) of Section 7.1, MascoTech will deliver to
the Administrative Agent (with a copy delivered to each Bank) a certificate,
signed by the chief accounting officer or chief financial officer of MascoTech
(i) stating that to the best of his knowledge after due inquiry, at the date of
such financial statements no Default had occurred and was continuing, or, if a
Default had occurred and was continuing, specifying the nature and period of
existence thereof and what action MascoTech has taken or proposes to take with
respect thereto; (ii) setting forth as of the date of such financial statements,
in reasonable detail, the calculations employed to determine compliance with
Sections 4.2(f) (but, in the case of any Asset Sale, only to the extent that the
aggregate amount of Net Cash Proceeds during the immediately preceding twelve
months exceeds $25,000,000), 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 and 7.15 and an
explanation in reasonable detail of any differences between generally accepted
accounting principles as then in effect and generally accepted accounting
principles used in making such calculations, as may be permitted under Section
1.2. The certificate will be accompanied by a calculation of the Senior Debt
Coverage Ratio as of the end of such fiscal quarter (calculated on a pro forma
basis as appropriate).
(b) Within 60 days after the end of each fiscal quarter of each
fiscal year of MascoTech (including the last fiscal quarter of each fiscal
year), MascoTech will deliver to the Administrative Agent (with a copy delivered
to each Bank) a certificate, signed by the chief accounting
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officer, chief financial officer, treasurer or assistant treasurer of
MascoTech, setting forth in reasonable detail the calculation of the
Leverage Ratio, as of the Determination Date with respect to the next
forthcoming Application Period, and identifying the Applicable Margin for such
Application Period as a result of such calculations.
(c) Within fifteen Business Days after any officer of MascoTech
obtains knowledge of a Default, MascoTech will, unless the same shall have been
cured within such fifteen Business Day period, give written notice to each of
the Banks thereof, specifying the nature thereof, the period of existence
thereof and what action MascoTech proposes to take with respect thereto.
7.3 Preservation of Corporate Existence, Etc. MascoTech will preserve
and maintain its corporate existence, and qualify and remain qualified as a
validly existing corporation in good standing in each jurisdiction in which the
conduct of its operations or the ownership of its properties requires such
qualification and failure so to qualify would materially and adversely affect
MascoTech and its Subsidiaries taken as a whole.
7.4 Minimum Capitalization. MascoTech shall not permit its Adjusted
Net Worth at any time to be less than the sum of (a) $650,000,000 plus (b)
sixty percent (60%) of (i) Net Income calculated separately for each fiscal
year of MascoTech ending after the Closing Date minus (ii) the aggregate amount
of dividends paid on any preferred stock of MascoTech during such period to the
extent permitted by Section 7.15 minus (c) on or after March 31, 2002,
$200,000,000; provided however, that if such Net Income is negative in any
fiscal year, the amount added for such fiscal year shall be zero and such
negative Net Income shall not reduce the amount of such Net Income added for
any other fiscal year.
7.5 Fixed Charge Coverage Ratio. MascoTech shall maintain a ratio
("Fixed Charge Coverage Ratio") as of the end of each fiscal quarter of (i)
EBITDA minus Capital Expenditures to (ii) the sum of the amounts of (a)
Interest Charges plus (b) scheduled amortization payments of the principal
portion of the Term Loans (exclusive of the installment due January 31, 2002)
and scheduled amortization payments of the principal portion of all other Debt
of MascoTech and its Consolidated Subsidiaries with an original maturity in
excess of one year plus (c) cash taxes paid by MascoTech and its Consolidated
Subsidiaries (excluding cash taxes with respect to gains not included in
EBITDA) of at least:
(i) 1.10 to 1.00 as of the last day of each fiscal
quarter ending during the period commencing with the fiscal quarter
ending March 31, 1998 through the fiscal quarter ending June 30, 2000;
and
(ii) 1.15 to 1.00 as of the last day of each fiscal quarter ending
thereafter until the Termination Date.
In each case, the Fixed Charge Coverage Ratio shall be determined as of
the last day of each fiscal quarter for the four fiscal quarter period ending
on such day, except that Capital Expenditures shall be
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calculated using an amount equal to fifty percent of the Capital Expenditures
during the eight fiscal quarter period ending on such day.
7.6 Maximum Leverage Ratio. MascoTech shall not, as of the last day
of each fiscal quarter, permit the ratio (the "Leverage Ratio") of (i) the sum
of (a) the aggregate principal amount of Debt of MascoTech and its Consolidated
Subsidiaries outstanding at such date plus (b) the amount by which the sum of
the outstanding Synthetic Lease Amount and the outstanding Securitization
Amount exceeds $50,000,000 as of such date minus (c) the aggregate amount of
Cash and Cash Equivalents maintained in the United States in excess of
$10,000,000 as of such date to (ii) EBITDA plus an amount equal to any
reduction in EBITDA attributable to any interest, rental or servicing expense
related to any Synthetic Lease Agreement or Receivables Sale to the extent such
amounts are included in the amount in excess of $50,000,000 determined as
provided in clause (i)(b) of this Section 7.6, for the four fiscal quarters
then most recently ended, to be greater than the ratio set forth below opposite
such date:
Quarter Ending Ratio
March 31, 1998 4.85 to 1.00
June 30, 1998 4.85 to 1.00
September 30, 1998 4.75 to 1.00
December 31, 1998 4.50 to 1.00
March 31, 1999 4.50 to 1.00
June 30, 1999 4.50 to 1.00
September 30, 1999 4.50 to 1.00
December 31, 1999 4.25 to 1.00
March 31, 2000 4.25 to 1.00
June 30, 2000 4.00 to 1.00
September 30, 2000 4.00 to 1.00
December 31, 2000 3.75 to 1.00
March 31, 2001 3.75 to 1.00
June 30, 2001 3.50 to 1.00
September 30, 2001 3.50 to 1.00
December 31, 2001 3.00 to 1.00
and the last day of
each fiscal quarter
thereafter
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7.7 Subsidiary Indebtedness. MascoTech will not permit or suffer the
aggregate principal amount of Debt of its Subsidiaries (other than Debt owing
to MascoTech or any of its Subsidiaries or Debt outstanding under this
Agreement or any Note) at any time to be greater than $100,000,000.
7.8 Negative Pledge. MascoTech shall not, nor shall MascoTech permit
any Consolidated Subsidiary to create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $25,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring
such asset (or acquiring a corporation or other entity which owned such
asset), provided that such Lien attaches to such asset concurrently
with or within 90 days after such acquisition;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into MascoTech
or a Consolidated Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any asset prior to the acquisition
thereof by MascoTech or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased and is not secured by any additional assets;
(g) any Lien in favor of the holder of Debt (or any Person acting
for or on behalf of such holder) arising pursuant to any order of
attachment, distraint or similar legal process arising in connection
with court proceedings so long as the execution or other enforcement
thereof is effectively stayed and the claims secured thereby are being
contested in good faith by appropriate proceedings and MascoTech or
such Consolidated Subsidiary, as the case may be, has established
appropriate reserves against such claims in accordance with generally
accepted accounting principles;
(h) Liens incidental to the normal conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do
not in the aggregate materially detract (due to the amount of the
liability secured by such Liens or otherwise) from the value of the
assets of MascoTech and its Consolidated Subsidiaries taken as a whole
or in the aggregate materially
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impair the use thereof in the operation of the business of
MascoTech and its Consolidated Subsidiaries taken as a whole;
(i) any Lien securing Debt incurred under this Agreement; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section; provided that (i) the aggregate outstanding principal amount
of Debt secured by all such Liens on Current Assets shall not at any
time exceed 10% of Current Assets and (ii) the aggregate outstanding
principal amount of Debt secured by all such Liens (including Liens
referred to in clause (i) of this proviso) shall not at any time exceed
the sum of 5% of Net Worth plus 10% of Current Assets, provided,
further, that for purposes of this Section 7.8(i), Current Assets
shall not include any assets that are classified as Current Assets
solely because they are held for sale;
provided, however, that the restrictions set forth in this Section 7.8 shall
not apply to "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System), if and to the extent that the value
of the margin stock with respect to which the rights of MascoTech and its
Subsidiaries are restricted by this Section 7.8 would otherwise exceed 25% of
the value of all assets with respect to which the rights of MascoTech and its
Subsidiaries are restricted by this Section 7.8.
7.9 Dispositions of Assets; Mergers and Consolidations.
(a) (i) MascoTech will not merge or consolidate with any other
Person, unless MascoTech shall be the continuing or surviving corporation of
such merger or consolidation. (ii) No Consolidated Subsidiary of MascoTech
will merge or consolidate with any Person other than MascoTech (subject to
subsection (a)(i)) or another Consolidated Subsidiary, unless such Consolidated
Subsidiary shall be the continuing or surviving corporation, except to the
extent the sale of such Consolidated Subsidiary would be permitted pursuant to
subsection (b) of this Section.
(b) MascoTech will not, and will not permit any Consolidated
Subsidiary to, directly or indirectly sell, lease, transfer or otherwise
dispose of its assets (other than the sale of inventory in the ordinary course
of business) if, immediately after giving effect thereto, the aggregate amount
of such assets (including the Receivables Sales Amount in the case of
Receivables Sales) sold, leased, transferred or otherwise disposed of by
MascoTech and its Consolidated Subsidiaries in the twelve months then ended
would exceed 10% of the total assets of MascoTech and its Consolidated
Subsidiaries as shown on the most recent balance sheet delivered to the Banks
under Section 7.1; provided, however, that the restrictions set forth in this
Section 7.9(b) shall not restrict or prohibit sales of "margin stock" (as
defined in Regulation U of the Board of Governors of the Federal Reserve
System) for fair value as determined in good faith by the Board of Directors of
MascoTech, if and to the extent that the value of the margin stock with respect
to which the rights of MascoTech and its Subsidiaries are restricted by this
Section 7.9(b) would otherwise exceed 25% of the value of all assets with
respect to which the rights of MascoTech and its Subsidiaries are restricted by
this Section 7.9(b). Other than margin stock consisting of the stock of TriMas
Corporation, MascoTech will not own,
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directly or through one or more of its Subsidiaries, margin stock with a
value in excess of 25% of the value of all assets of MascoTech and its
Subsidiaries.
(c) Notwithstanding any other provision of this Section 7.9, no
disposition of assets, merger or consolidation referred to in subsection (a) or
(b) of this Section shall be permitted if, immediately after giving effect
thereto, any Default would exist.
7.10 Changes in Subordinated Debt. MascoTech will not (a) transfer,
convey, assign or deliver to any holder of any Subordinated Debt, or to any
trustee, paying agent or other fiduciary for the benefit of the holder of any
Subordinated Debt (including any defeasance), any cash, securities (other than
securities constituting Subordinated Debt) or other assets of MascoTech or any
Subsidiary in payment or on account of, or as provision for, principal,
premium, if any, or interest on any Subordinated Debt which is not required
under the instruments and agreements relating to such Subordinated Debt
(provided that any payment which is blocked by any creditors of MascoTech or
any of its Subsidiaries pursuant to the terms of the applicable instrument or
agreement shall not be deemed to be required) or (b) or amend, modify or waive
any term or provision of any instrument or agreement relating to any
Subordinated Debt such that it would not constitute "Subordinated Debt" as
defined herein if at the time of any such transfer, conveyance, assignment,
delivery, amendment, modification or waiver there shall exist and be
continuing, or if immediately after giving effect thereto as a reasonably
foreseeable result thereof on a pro forma basis there would exist or would be
caused thereby, a Default.
7.11 Use of Proceeds. (a) None of the proceeds of the Loans made
under this Agreement will be used in violation of any applicable law or
regulation including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System, provided that a Federal Reserve Form
U-1 shall have been completed by the Administrative Agent on behalf of each
Bank and reviewed and approved by the Banks in form and substance satisfactory
to MascoTech and the Administrative Agent on or prior to the Closing.
(b) The proceeds of the Loans made under this Agreement shall be
used (i) to refinance the Existing Bank Facility, (ii) to finance the
purchase of capital stock of the Target acquired pursuant to the Tender Offer,
(iii) to finance the Merger, (iv) to refinance the current credit facilities of
the Target and (v) for general corporate purposes of the Borrowers.
7.12 Fiscal Year. MascoTech will not change its fiscal year from
beginning on January 1 of the calendar year and ending on December 31 of the
calendar year.
7.13 Compliance with Laws. MascoTech will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings, (b) no officer of
MascoTech is aware that MascoTech or the relevant Subsidiary has failed to
comply therewith or (c) MascoTech has reasonably concluded that
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failure to comply is not likely to have a material adverse effect on the
business, financial position or results of operations of MascoTech and its
Consolidated Subsidiaries, taken as a whole.
7.14 Interest Rate Agreements. Not later than 180 days after the
Closing Date, the Borrowers shall enter into, and shall thereafter maintain
interest rate swap or hedging agreements or other agreements (including (i) new
Financing of either debt securities bearing a fixed rate of interest or equity
securities) which effectively protect the Borrowers against increases in
interest rates that the Borrowers may be required to pay on a notional amount
of not less than $200,000,000 for not less than the first two years following
the Closing Date.
7.15 Restricted Payments. At any time that MascoTech's Leverage Ratio
(calculated as prescribed in Section 7.6 for the most recently completed four
fiscal quarter period, but adjusted to reflect on a pro forma basis the effect
on the Debt of MascoTech and its Consolidated Subsidiaries as a result of any
issuance of Equity Interests or trust convertible debt securities or similar
securities made subsequent to such period but on or prior to the date such
Restricted Payment is to be made) is greater than or equal to 3.0 to 1.0,
MascoTech shall not make any Restricted Payment except: (i) the payment of
dividends on preferred stock in an amount not to exceed $3,750,000 in any one
fiscal quarter, (ii) other Restricted Payments not to exceed in the aggregate
during the term of this Agreement an amount equal to the sum of (a) $40,000,000
plus (b) an amount equal to 75% of any proceeds received by MascoTech in
connection with its issuance of Equity Interests or trust convertible debt
securities or similar securities to the extent such securities are not treated
as debt of MascoTech in accordance with generally accepted accounting
principles to the extent that, after giving pro forma effect to the application
of a portion of such proceeds to Senior Debt, the Senior Debt Coverage Ratio is
less than 3.0 to 1.0 plus (c) an amount equal to 60% of any proceeds received
by MascoTech in connection with the issuance of Subordinated Debt or trust
convertible debt securities or similar securities to the extent such securities
are treated as debt of MascoTech in accordance with generally accepted
accounting principles to the extent that, after giving pro forma effect to the
application of a portion of such proceeds to Senior Debt, the Senior Debt
Coverage Ratio is less than 3.0 to 1.0 plus (d) an amount equal to 50% of the
aggregate amount of the Excess Cash Flow of MascoTech and its Consolidated
Subsidiaries in each fiscal quarter following the Closing Date and ending with
the most recently completed fiscal quarter (or, 100% of such Excess Cash Flow
for any fiscal quarter ending on or after the Senior Debt Coverage Ratio is
less than 3.0 to 1.0), provided, however, that the Restricted Payments
described in clauses (i) and (ii) above shall not be permitted if either an
Event of Default or a Default shall have occurred and be continuing at the date
of declaration or payment thereof or would result therefrom, except that any
dividends on the common or preferred stock of MascoTech which are declared at a
time when no Default or Event of Default shall have occurred and be continuing
or would result therefrom, MascoTech shall be entitled to pay such dividend
within sixty (60) days of such declaration.
7.16 Guaranties and Pledges. (a) Prior to the consummation of the
Merger, MascoTech will (and, if at the expiration of the Tender Offer,
MascoTech and Acquisition have not obtained sufficient shares of the Target to
effect a short-form merger, MascoTech Sintered Components, Inc. ("Sintered"),
MascoTech Sintered Components of Indiana, Inc. ("Sintered Indiana") and
MascoTech
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Tubular Products, Inc. ("Tubular Products") will within five business days of
the initial funding to purchase shares of the Target pursuant to the Tender
Offer) guaranty the indebtedness under this Agreement pursuant to a guaranty
substantially in the form of Exhibit Q. The guaranties by Sintered, Sintered
Indiana and Tubular Products will be released automatically after the
consummation of the Merger unless Sintered, Sintered Indiana and Tubular
Products are Significant Subsidiaries. Within five Business Days after the
Merger becomes effective, the entity resulting from the Merger and all
Significant Subsidiaries will guaranty the indebtedness under this Agreement
pursuant to a guaranty substantially in the form of Exhibit Q. Any subsidiary
that thereafter becomes a Significant Subsidiary will guaranty the indebtedness
under this Agreement promptly upon receiving written demand from the
Administrative Agent. MascoTech will notify the Administrative Agent within
ninety-five (95) days of the date it is determined that any Subsidiary has
become a Significant Subsidiary. The guaranty of any such Subsidiary will be
automatically released upon the sale of such Subsidiary if all Net Cash
Proceeds of the sale are applied to the Term Loans, or, if the Term Loans have
been paid in full, to the Revolving Loans, as prescribed in Section 4.2(f).
The guaranty of any Subsidiary that ceases to be a Significant Subsidiary will
be automatically released upon the determination by MascoTech, in the
preparation of its annual financial statements, that such Subsidiary is no
longer a Significant Subsidiary.
(b) All stock of the Target owned by MascoTech, Acquisition and
NI Industries, Inc., a Delaware corporation, including the stock acquired
in the Tender Offer, will be pledged concurrently with the initial Borrowing.
The pledged stock will be released upon MascoTech's achievement of an implied
or actual senior unsecured debt rating of BB+ by S&P or Ba1 by Moody's or a
Senior Debt Coverage Ratio of less than 2.5 to 1.0, but not before the
consummation of the Merger.
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES
The obligation of the Administrative Agent to issue any Letter of
Credit, the obligation of each Bank to make a Syndicated Loan on the occasion
of each Syndicated Borrowing hereunder, and the willingness of any Bank to
consider, in its sole discretion, making any Bid-Option Loan hereunder, is
subject to the performance by the Borrowers of all their obligations under this
Agreement and to the satisfaction of the following further conditions:
8.1 Each Borrowing and Letter of Credit Issuance. In the case of
each Borrowing (other than a Floating Rate Borrowing deemed disbursed under
Section 3.3(e) and any Borrowing subject to the conditions precedent in
Sections 8.2 and 8.3) and Letter of Credit Issuance hereunder:
(a) Receipt by the Administrative Agent of (i) in the case of
each Borrowing, the Notice of Borrowing from the applicable Borrower
containing any information required by Section 3.4, 3.5, 3.6 or 3.7 as the case
may be, and (ii) in the case of each Letter of Credit Issuance, the Request for
Letter of Credit Issuance from the applicable Borrower as required by Section
3.3, in each case signed by an Authorized Officer or person designated (by
written notification from such Authorized Officer to the Administrative Agent)
by such Authorized Officer, and, in the case of each Letter of Credit
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Issuance, together with an application for the related Letter of Credit and
other related documentation requested by and acceptable to the Administrative
Agent appropriately completed and duly executed by such designated officer or
other person.
(b) The fact that both before and at the conclusion of the
Borrowing or Letter of Credit Issuance: (i) in the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing and (ii) in
the case of any other Borrowing or any Letter of Credit Issuance, no Default
shall have occurred and be continuing;
(c) The fact that the representations and warranties contained
in this Agreement (except, in the case of a Refunding Borrowing, the
representations and warranties set forth in Section 6.4(i), Section 6.5, the
last sentence of Section 6.6, clause (a) of the first sentence of Section 6.7
and Sections 6.8 and 6.9) shall be true and correct in all material respects
or, with respect to such representations and warranties that include a
materiality standard, in all respects, on and as of the date of such Borrowing
or Letter of Credit Issuance with the same force and effect as if made on and
as of such date; and
(d) Receipt by the Administrative Agent of such other opinions,
documents, evidence, materials and information with respect to the matters
contemplated hereby as the Administrative Agent or the Required Banks may
reasonably request.
Each Borrowing by the Borrowers and Letter of Credit Issuance pursuant to this
Agreement, including the first such Borrowing or Letter of Credit Issuance,
shall be deemed to be a representation and warranty by the Borrowers on the
date of such Borrowing or Letter of Credit Issuance as to the facts specified
in clauses (b) and (c) of this Section 8.1.
8.2 Initial Borrowing or Letter of Credit Issuance. In the case of
the initial Borrowing or Letter of Credit Issuance pursuant to this Agreement:
(a)(1)General Conditions. Receipt by the Administrative Agent for the
account of each Bank of a duly executed Revolving Note, a duly
executed Term Loan Note and a duly executed Bid-Option Note, each
dated on or before the date of such Borrowing or Letter of Credit
Issuance; and
(2) Receipt by the Administrative Agent of all the items, and
completion of all the matters, required by Section 8.3.
(3) Regulation U Requirements. The Administrative Agent shall
have received on behalf of the Banks a purpose statement on FR Form U-1
referred to in Regulation U in form and substance satisfactory to the
Administrative Agent.
(b) Initial Loans to Finance the Tender Offer. In addition to
satisfying the conditions precedent set forth in Section 8.2(a), in the case of
the initial Borrowing or Letter of Credit Issuance
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under the Revolving Credit Facility or the initial Borrowing under the Term
Loan Facility to finance the purchase of capital stock of the Target acquired
by Acquisition pursuant to the Tender Offer:
(1) (i) Receipt by the Agents of evidence that MascoTech's
directors shall have approved the Tender Offer and Merger and
that the Target's directors shall have approved and recommended
acceptance of the Tender Offer and shall have approved the Merger.
(ii) MascoTech, Acquisition and the Target shall have made all filings
with and obtained all approvals and authorizations from any
governmental body, agency, official or authority, and any applicable
waiting period related thereto shall have expired or been terminated,
which filings, approvals or authorizations (or the expiration of such
waiting periods) are legally required to be obtained or made by them
(or to have expired or terminated) prior to the consummation of the
Tender Offer and which, if not obtained or made (or expired or
terminated) would, individually or in the aggregate, have a reasonable
probability of having a material adverse effect on MascoTech or the
Target.
(2) No law or regulation shall have made consummation of the Tender
Offer or the Merger illegal or otherwise prohibited and no judgment,
injunction, order or decree shall have enjoined MascoTech, Acquisition
or the Target from consummating the Tender Offer or the Merger.
(3) The amounts and forms of the consideration to be paid in the
Tender Offer and the Merger shall be acceptable to the Agents if higher
than $34.50 per share, together with evidence of such consideration to
be paid satisfactory to the Agents.
(4) (i) All conditions precedent to Acquisition's consummation of
the Tender Offer shall have been satisfied or waived with the
approval of the Agents. (ii) The terms of the Tender Offer shall not
be amended without the consent of the Agents. (iii) The number of the
Target's shares of capital stock validly tendered pursuant to the
Tender Offer and not properly withdrawn prior to expiration of the
Tender Offer shall represent not less than the minimum number of
shares, determined on a fully diluted basis necessary to effectuate the
Merger in accordance with the provisions of any applicable corporate
statute, anti-takeover statute or provision in the Target's certificate
of incorporation or by-laws in order to consummate the Merger.
(5) The Merger Agreement shall not have been amended or modified or
any of its provisions waived by MascoTech in any respect material
to the Banks without the approval of the Agents and there shall not
have occurred or exist any breach or default by MascoTech material to
the Banks under the Merger Agreement. Except for such inaccuracies or
omissions the consequences of which do not singly or in the aggregate
constitute a material adverse effect on the Target, the representations
and warranties of the Target contained in the Merger Agreement shall be
true in all respects at and as of the time shares are accepted for
payment pursuant to the Tender Offer as if made at and as of such time
(except as to those representations and warranties which are made as of
a specified date, which shall be true and correct as of such date).
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(6) Receipt by the Agents of a copy of any fairness opinion relating
to the Tender Offer.
(7) The Agents shall have received evidence confirming the solvency
and other appropriate factual information in form and substance
satisfactory to them from the chief financial officer of MascoTech
supporting the conclusion that after giving effect to the Tender Offer
and the Merger, MascoTech and its Consolidated Subsidiaries, including
the Target, taken as a whole, is solvent and will be solvent subsequent
to incurring the indebtedness in connection with the Tender Offer and
the Merger, will be able to pay its debts as they become due and will
not be left with unreasonably small capital.
(8) All outstanding payment obligations of the Borrowers under the
Existing Bank Facility shall have been repaid in full with the
indebtedness incurred under this Agreement except Existing Bid-Option
Loans permitted pursuant to Article II.
(9) Compliance with all applicable requirements of Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System.
(10) No Default or Event of Default shall have occurred and be
continuing on the funding date and no Material Adverse Change shall
have occurred.
(11) No event, occurrence, development or state of circumstances or
facts which has had or has a reasonable probability of having,
individually or in the aggregate, a material adverse effect on the
Target shall have occurred.
(12) All guaranties, in the form of Exhibit Q attached hereto, and
pledges, in the form of Exhibit R attached hereto, required pursuant to
Section 7.16 shall have been executed.
(13) The representations and warranties contained in Sections 6.1,
6.2 and 6.3 shall be true and correct.
(c) Initial Loans to Finance the Merger. In addition to satisfying
the conditions precedent set forth in Section 8.2(a), in the case of a
Borrowing or Letter of Credit Issuance under the Revolving Credit Facility or
a Borrowing under the Term Loan Facility to finance the Merger:
(1) The Merger shall have become effective in accordance with all
applicable laws and regulations and the Merger Agreement, the
provisions of which shall not have been amended, waived or modified by
MascoTech in any manner material to the Banks without the prior consent
of the Required Banks, and each of the conditions precedent to
MascoTech's obligation to consummate the Merger material to the Banks
set forth in the Merger Agreement shall have been satisfied to the
satisfaction of the Required Banks.
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(2) No law or regulation shall have made consummation of the Merger
illegal or otherwise prohibited and no judgment, injunction, order or
decree shall have enjoined MascoTech, Acquisition or the Target from
consummating the Merger.
(3) After giving effect to consummation of the Merger, no Default
shall have occurred and be continuing and no Material Adverse Change
shall have occurred since the funding of the Tender Offer.
(4) After giving effect to any Loans made on the date of
consummation of the Merger, all outstanding payment obligations of
TriMas Corporation under its existing $350,000,000 Credit Agreement
shall have been paid in full and such Credit Agreement shall have been
terminated.
8.3 Closing. On or prior to the Closing Date, the Borrowers shall
furnish to the Banks the following items, and the following matters shall be
completed:
(a) An opinion of each of David Liner, counsel to MascoTech, and
Davis Polk & Wardwell, special New York counsel to MascoTech, substantially in
the form of Exhibit M and Exhibit N, respectively, hereto, and covering such
other matters as any Bank may reasonably request, dated the Closing Date;
(b) Certified copies of all corporate action taken by each
Borrower to authorize the execution, delivery and performance of this Agreement
and the Notes, and the Borrowings and Letter of Credit Issuances hereunder, and
such other corporate documents and other papers as any Bank may reasonably
request, including, without limitation, certified copies of the Borrower's
articles of incorporation and by-laws;
(c) A certificate of a duly authorized officer of each Borrower,
dated the Closing Date, as to the incumbency, and setting forth a specimen or
facsimile signature, of each of the persons (i) who has signed this Agreement on
behalf of the applicable Borrower, (ii) who has signed the Notes on behalf of
the applicable Borrower, and (iii) who will, until replaced by other persons
duly authorized for that purpose, act as the representatives of the applicable
Borrower for the purpose of signing documents in connection with this Agreement
and the transactions contemplated hereby;
(d) A certificate of a senior officer of MascoTech to the effect
set forth in Section 8.2(b)(10), (11) and (13); and
(e) The closing fees payable under Section 3.9, which shall be
paid to the Administrative Agent for the account of the Banks.
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ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.1 Events of Default. If any one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) Any Borrower shall fail to pay when due any installment of
principal of any Note or shall fail to pay within five days of the due
date thereof any interest on any Note or any facility fee, closing
fee, Letter of Credit fee, or Agents and Arrangers fee payable under
this Agreement, or any reimbursement obligation under Section 3.3
(unless satisfied by the deemed disbursement of Floating Rate Loans);
or
(b) Any Borrower shall fail to observe or perform any covenant
contained in any of Sections 7.3 to 7.10 inclusive and 7.14 to 7.16
inclusive; or
(c) Any Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered
by clauses (a) and (b) above) for thirty (30) days after written notice
thereof has been given to such Borrower by any Bank or the
Administrative Agent; or
(d) Any representation or warranty of a Borrower or any officer
of a Borrower to the Banks contained herein or in any certificate,
statement or report furnished to the Banks hereunder shall prove to
have been incorrect or misleading in any material respect on the date
when made or deemed made, provided that, if any representation and
warranty deemed to have been made by a Borrower pursuant to the last
sentence of Section 8.1 as to the satisfaction of the condition of
borrowing set forth in clause (b)(i) of Section 8.1 shall have been
incorrect solely by reason of the existence of an Event of Default of
which such Borrower was not aware when such representation and warranty
was deemed to have been made and which was cured before or promptly
after the Borrower became aware thereof, then such representation and
warranty shall be deemed not to have been incorrect in any material
respect; or
(e) Any Borrower or any Significant Subsidiary (i) shall fail to
pay at maturity, or within any applicable period of grace, any Debt
(other than a Loan and other than Acquired Debt in an aggregate
outstanding principal amount not exceeding $15,000,000) having an
aggregate principal amount in excess of $10,000,000, and such failure
has not been waived, or (ii) shall fail to observe or perform any term,
covenant or agreement (other than such a term, covenant or agreement to
or for the benefit of a Bank or Affiliate thereof restricting the sale,
pledge or other disposition by a Borrower or any Significant Subsidiary
of "margin stock" having a value in excess of 25% of the value of the
assets referred to in Section 221.2(g)(2)(i)
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of Regulation U unless the Board of Governors of the Federal Reserve
System or its staff advises the Administrative Agent in writing that
the existence of this subsection (e) without this parenthetical
exception would not in such circumstances render this Agreement
"secured directly or indirectly by margin stock" within the meaning of
its Regulation U), contained in any agreement (other than this
Agreement) by which it is bound evidencing or securing indebtedness for
borrowed money (other than Acquired Debt in an aggregate
outstanding principal amount not exceeding $15,000,000) for such period
of time as would cause or permit the holder or holders (or any Persons
acting for or on behalf of such holder or holders) thereof or of any
obligations issued thereunder to accelerate the maturity thereof or of
any such obligations in an aggregate principal amount in excess of
$10,000,000, and such failure has not been waived; provided that for
purposes of this subsection (e), a failure by any Borrower or any
Significant Subsidiary to observe or perform any term, covenant or
agreement in respect of the industrial revenue bonds identified on
Schedule 2 attached hereto, or to pay on the due date therefor the debt
outstanding thereunder, shall not be deemed a Default or contribute to
the $10,000,000 aggregate limitation set forth above, so long as such
Borrower or Significant Subsidiary satisfies all obligations to pay
premium, if any, principal of, and interest when due on such bonds
(whether or not related to an acceleration of maturity) within five
days after the due date therefor; or
(f) Any Borrower or any Significant Subsidiary shall (i) apply
for or consent to the appointment of a receiver, custodian,
trustee, liquidator or the like of itself or of a significant portion
of its assets; (ii) be unable or admit in writing its inability to pay
its debts as they mature; (iii) make a general assignment for the
benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; or
(v) file a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization or an arrangement with creditors or to take
advantage of any insolvency law, or any answer admitting the material
allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceedings, or a resolution of either the
shareholders or the Board of Directors of such corporation shall be
adopted for the purpose of effecting any of the foregoing; or
(g) A proceeding shall be instituted without the application,
approval or consent of a Borrower or any Significant Subsidiary in any
court of competent jurisdiction seeking, in respect of such Borrower or
Significant Subsidiary, adjudication in bankruptcy, dissolution,
winding up, reorganization, a composition or arrangement with
creditors, a readjustment of debts, the appointment of a receiver,
custodian, trustee, liquidator or the like of the Borrower or such
Significant Subsidiary or of a significant portion of its assets, or
other like relief in respect of the Borrower or Significant Subsidiary
under any insolvency or bankruptcy law, and the same shall continue
undismissed or unstayed and in effect for any period of sixty
consecutive days; or
(h) Final judgment for the payment of money in excess of
$5,000,000 in amount shall be rendered by a court of record against any
Borrower or Significant Subsidiary and such Borrower or Significant
Subsidiary shall not discharge the same or provide for its discharge,
or
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procure a stay of execution thereof, within sixty days from the date of
entry thereof, and within said period of sixty days or such longer
period during which execution of such judgment shall have been stayed,
move to vacate said judgment or appeal therefrom and cause the
execution thereof to be stayed pending determination of such motion or
during such appeal; or
(i) Any Borrower or any ERISA Affiliate of any Borrower shall
fail to pay when due an amount or amounts aggregating in excess of
$5,000,000 which it shall have become liable to pay to the PBGC or to a
Plan under Title IV of ERISA; or notice of intent to terminate a Plan
or Plans having aggregate Unfunded Benefit Liabilities in excess of
$25,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by any Borrower or any ERISA Affiliate of any
Borrower, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any
Material Plan and such proceeding shall not have been dismissed within
thirty days thereafter; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or
(j)(i) Any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended), other
than any Person in the Masco Group or any group that includes any
Person in the Masco Group (A) shall have acquired beneficial ownership
of 25% or more of the capital stock having ordinary voting power in the
election of directors of MascoTech or (B) shall obtain the power
(whether or not exercised) to elect a majority of MascoTech's directors
or (ii) the Board of Directors of MascoTech shall not consist of a
majority of Continuing Directors; "Continuing Directors" shall mean the
directors of MascoTech on the Closing Date and each other director, if
such other director's nomination for election to the Board of Directors
of MascoTech is recommended by a majority of the then Continuing
Directors; or
(k) Acquisition and Target shall fail to consummate the Merger
within 180 days of the initial funding of Loans;
then, and in each such case, the Administrative Agent upon being directed to do
so by the Required Banks, shall, by written notice to the Borrowers, (i)
immediately terminate the Commitments, the Swing Line Commitment and the
Alternate Currency Commitments, (ii) declare the principal of and interest
accrued on all the Notes, all unpaid reimbursement obligations in respect of
drawings under Letters of Credit, and all other amounts owing under this
Agreement to be immediately due and payable or (iii) demand immediate delivery
of cash collateral, and the Borrowers agree to deliver such cash collateral
upon demand, in an amount equal to the maximum amount that may be available to
be drawn at any time prior to the stated expiry of all outstanding Letters of
Credit, or any one or more of the foregoing, whereupon the Commitments shall
terminate forthwith and all such amounts, including such cash collateral, shall
become immediately due and payable without presentment or demand for payment,
notice of non-payment, protest or further notice or demand of any kind, all of
which are expressly waived by the Borrowers; provided, however, that in the
case of the occurrence of any event
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described in the foregoing clauses (f) and (g) with respect to MascoTech or
with respect to the Target provided the Target is at such time a Borrower,
the Commitments shall automatically terminate forthwith and all such amounts,
including such cash collateral, shall automatically become immediately due and
payable without action upon the part of the Required Banks and without the
requirement of any such notice, and without presentment, demand, protest or
other notice of any kind, all of which are hereby waived. Such cash collateral
delivered in respect of outstanding Letters of Credit shall be deposited in a
special cash collateral account to be held by the Administrative Agent as
collateral security for the payment and performance of the applicable
Borrower's obligations under this Agreement and the Notes to the Banks and the
Administrative Agent.
9.2 Remedies. The Administrative Agent upon being directed to do so
by the Required Banks, shall, in addition to the remedies provided in Section
9.1, exercise and enforce any and all other rights and remedies available to it
or the Banks, whether arising under this Agreement, the Notes or under
applicable law, in any manner deemed appropriate by the Administrative Agent,
including suit in equity, action at law, or other appropriate proceedings,
whether for the specific performance (to the extent permitted by law) of any
covenant or agreement contained in this Agreement or in the Notes or in aid of
the exercise of any power granted in this Agreement or the Notes.
9.3 Set Off. Upon the failure of the Borrowers to pay any
indebtedness under this Agreement or the Notes at its maturity (whether at
stated maturity, by acceleration or otherwise) or, in the case of such
indebtedness other than principal of the Loans, when due (after allowing for
any grace period provided with respect thereto under Section 9.1(a)), each Bank
may at any time and from time to time, without notice to the Borrowers (any
requirement for such notice being expressly waived by the Borrowers) set off
and apply against any and all of the obligations of the Borrowers now or
hereafter existing under this Agreement and the Notes, whether owing to such
Bank or any other Bank or the Administrative Agent, any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for the credit or the
account of the Borrowers and any property of the Borrowers from time to time in
possession of such Bank, regardless of whether or not such Bank shall have made
any demand hereunder or any indebtedness owing by such Bank may be contingent
and unmatured. The rights of the Banks under this Section 9.3 are in addition
to other rights and remedies (including, without limitation, other rights of
setoff) which the Banks may have.
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ARTICLE X.
THE AGENTS AND THE BANKS
10.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the Notes as
are delegated to the Administrative Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto. The
provisions of this Article X are solely for the benefit of the Administrative
Agent and the Banks, and the Borrowers shall not have any rights as third party
beneficiaries of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Banks and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the
Borrowers.
10.2 Administrative Agent and Affiliates. The Administrative Agent in
its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise or refrain from exercising the
same as though it were not the Administrative Agent. The Administrative Agent
and its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, and generally engage in any kind of banking,
trust, financial advisory or other business with MascoTech or any Subsidiary of
MascoTech as if it were not acting as Administrative Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
10.3 Scope of Agent's Duties. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth herein, and shall
not, by reason of this Agreement, have a fiduciary relationship with any Bank,
and no implied covenants, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or shall otherwise exist against the
Administrative Agent. As to any matters not expressly provided for by this
Agreement (including, without limitation, collection and enforcement action
under the Notes), the Administrative Agent shall not be required to exercise
any discretion or take any action, but may request instructions from the
Required Banks. The Administrative Agent shall in all cases be fully protected
from liability to the Banks in acting, or in refraining from acting, pursuant
to the written instructions of the Required Banks or, when expressly required
by this Agreement, all the Banks, which instructions and any action or omission
pursuant thereto shall be binding upon all of the Banks; provided, however,
that the Administrative Agent shall not be required to act or omit to act if,
in the judgment of the Administrative Agent, such action or omission may
expose the Administrative Agent to personal liability or is contrary to this
Agreement, any Note, or applicable law.
10.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certificate, notice, document or other
communication (including any cable, telegram, telex, facsimile transmission or
oral communication) believed by it to be genuine and correct and to have been
sent or given by or on behalf of a proper person. The Administrative Agent may
treat the payee
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of any Note as the holder thereof. The Administrative Agent may employ agents
(including, without limitation, collateral agents) and may consult with legal
counsel (who may be counsel for the Borrowers), independent public accountants
and other experts selected by it and shall not be liable to the Banks, except
as to money or property received by it or its authorized agents, for the
negligence or misconduct of any such agent selected by it with reasonable care
or for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
10.5 Default. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of any Default, unless the Administrative Agent has
received written notice from a Bank or the Borrowers specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give written notice thereof to the Banks.
10.6 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its directors, officers, agents, or employees shall be liable
to the Banks for any action taken or not taken by it or them in connection
herewith with the consent or at the request of the Required Banks or, when
expressly required by this Agreement, all the Banks or in the absence of its or
their own gross negligence or willful misconduct. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (a) any
recital, statement, warranty or representation contained in this Agreement or
any Note, or in any certificate, report, financial statement or other document
furnished in connection with this Agreement, (b) the performance or observance
of any of the covenants or agreements of the Borrowers, (c) the satisfaction of
any condition specified in Article VIII, except as to the delivery to the
Administrative Agent of documents that appear on their face to conform to the
requirements of Article VIII (other than requirements of any Bank under Section
8.3(b) that are not known to the Administrative Agent), or (d) the validity,
effectiveness, legal enforceability, value or genuineness of this Agreement,
the Notes, or any other instrument or document furnished in connection
herewith.
10.7 Nonreliance on Administrative Agent and Other Banks. Each Bank
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
MascoTech and its Subsidiaries and its own decision to enter into this
Agreement, and that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decision in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Borrowers of this Agreement, the Notes or any
other documents referred to or provided for herein or to inspect the properties
or books of the Borrowers and, except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any information concerning the
affairs, financial condition or business of MascoTech or any of its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its Affiliates.
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10.8 Indemnification. The Banks agree to indemnify the Administrative
Agent (to the extent not reimbursed by the Borrowers, but without limiting any
obligation of the Borrowers to make such reimbursement), ratably according to
their respective Pro Rata Shares from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or the transactions
contemplated hereby or any action taken or omitted by the Administrative Agent
under this Agreement; provided, however, that no Bank shall be liable for any
portion of such claims, damages, losses, liabilities, costs or expenses
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including, but not limited to, reasonable fees and expenses of counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrowers, but without limiting the obligation of the Borrowers to make such
reimbursement; provided, however, that no Bank shall be liable for any portion
of such expenses incurred as a result of the Agent's gross negligence or
willful misconduct. Each Bank agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any amounts owing to the
Administrative Agent by the Banks pursuant to this Section; provided that no
Bank shall be responsible for failure of any other Bank to make such share
available to the Administrative Agent. If the indemnity furnished to the
Administrative Agent under this Section shall, in the reasonable judgment of
the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity from the Banks (other
than for the Agent's gross negligence or willful misconduct) and cease, or not
commence, to take any action until such additional indemnity is furnished.
10.9 Resignation of Administrative Agent. The Administrative Agent
may resign as such at any time upon thirty days' prior written notice to the
Borrowers and the Banks. In the event of any such resignation, the Required
Banks shall, by an instrument in writing delivered to the Borrowers and the
Administrative Agent, appoint a successor, which shall be (a) a Bank or (b) a
commercial bank organized under the laws of the United States or any State
thereof and having a combined capital and surplus of at least $500,000,000. If
a successor is not so appointed or does not accept such appointment before the
Agent's resignation becomes effective, the resigning Administrative Agent may
appoint a temporary successor to act until such appointment by the Required
Banks is made and accepted or if no such temporary successor is appointed as
provided above by the resigning Administrative Agent, the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder until
such appointment by the Required Banks is made and accepted. Any successor to
the Administrative Agent shall execute and deliver to the Borrowers and the
Banks an instrument accepting such appointment and thereupon such successor
Administrative Agent, without further act, deed, conveyance or transfer shall
become vested with all of the properties, rights, interests, powers,
authorities and obligations of its predecessor hereunder with like effect as if
originally named as Administrative Agent hereunder. Upon request of such
successor Administrative Agent, the
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Borrowers and the resigning Administrative Agent shall execute and deliver such
instruments of conveyance, assignment and further assurance and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in such successor Administrative Agent all such properties, rights,
interests, powers, authorities and obligations. The provisions of this Article
X shall thereafter remain effective for such resigning Administrative Agent
with respect to any actions taken or omitted to be taken by such
Administrative Agent while acting as the Administrative Agent hereunder.
10.10 Sharing of Payments. The Banks agree among themselves that, in
the event that any Bank shall obtain payment in respect of any Loan or Letter
of Credit reimbursement obligation owing to such Bank under this Agreement
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise in excess of its ratable share as provided for in this Agreement,
such Bank shall promptly purchase from the other Banks participations in such
Loans and other obligations in such amounts, and make such other adjustments
from time to time, as shall be equitable to the end that all of the Banks share
such payment in accordance with their respective ratable shares as provided
for in this Agreement. The Banks further agree among themselves that if
payment to a Bank obtained by such Bank through the exercise of a right of
set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Bank which shall have shared the
benefit of such payment shall, by repurchase of participations theretofore
sold, return its share of that benefit to each Bank whose payment shall have
been rescinded or otherwise restored, together with interest thereon at the per
annum rate, if any, at which such Bank whose payment shall have been restored
is liable with respect to such restored payment. The Borrowers agree that any
Bank so purchasing such a participation may, to the fullest extent permitted
by law, exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Bank were
a holder of such Loan or other obligation in the amount of such participation.
The Banks further agree among themselves that, in the event that amounts
received by the Banks and the Administrative Agent hereunder are insufficient
to pay all such obligations when due, the fees and other amounts owing to the
Administrative Agent in such capacity shall be paid therefrom before payment of
obligations owing to the Banks under this Agreement. Except as otherwise
expressly provided in this Agreement, if any Bank or the Administrative Agent
shall fail to remit to the Administrative Agent or any other Bank an amount
payable by such Bank or the Administrative Agent to the Administrative Agent or
such other Bank pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to the
Administrative Agent or such other Bank at a rate per annum equal to the rate
at which borrowings are available to the payee in its overnight federal funds
market.
10.11 Withholding Tax Exemption. Each Bank agrees to file with the
Administrative Agent and the Borrowers, in duplicate, (a) on or before the
later of (i) the Closing Date and (ii) the date such Bank becomes a Bank under
this Agreement, (b) on the date such Bank becomes an Alternate Currency Bank
with respect to an Alternate Currency and (c) thereafter as frequently as
required by applicable law unless not legally able to do so as a result of a
change in applicable tax law enacted, or treaty promulgated, after the date
specified in the preceding clause (a) or (b), as applicable, on or prior to the
immediately following due date of any payment by the Borrowers hereunder, a
properly
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completed and executed copy of any form, certification or similar
documentation, if any, necessary for claiming complete exemption from
withholding taxes, including in the case of taxes imposed by the United States,
either Internal Revenue Service Form 4224 or Internal Revenue Service Form 1001
and Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and
any additional form necessary for claiming complete exemption from United
States withholding taxes (or such other form as is required to claim complete
exemption from United States withholding taxes), if and as provided by the Code
or other pronouncements of the United States Internal Revenue Service, and such
Bank warrants to the Borrowers that the form so filed will be true and
complete; provided that such Bank's failure to complete, execute and file such
form, certification or similar documentation shall not relieve the Borrowers of
any of their obligations under this Agreement, other than their obligation
under Section 5.3(a) with respect to increased costs that are a result of such
failure.
10.12 The Syndication Agents and Arrangers. Each Syndication Agent
and Arranger, in such capacities, shall have no authority, duties,
responsibilities, obligations, liabilities or functions under this Agreement or
the Notes.
ARTICLE XI.
MISCELLANEOUS
11.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall
be effective unless the same shall be in writing and signed by the Borrowers
(except with respect to waivers by the Required Banks or all the Banks) and the
Required Banks and, to the extent any rights or duties of the Administrative
Agent may be affected thereby, by the Administrative Agent, provided, however,
that no such amendment, modification, termination, waiver or consent shall,
without the consent of all of the Banks, (i) authorize or permit the extension
of time for, or any reduction of the amount of, any payment of the principal
of, or interest (including the Applicable Margin) on, any Loan, or any fees or
other amount payable hereunder (except with respect to any modifications of the
provisions relating to prepayments of Loans and except with respect to waiving
the application of the Overdue Rate), or (ii) except as expressly authorized
hereunder, amend, extend or terminate the respective Commitment of any Bank
(other than any Alternate Currency Commitment and except for an extension
beyond the Termination Date), or (iii) modify the provisions of this Section
regarding the taking of any action under this Section, or the definition of
Required Banks, or (iv) permit the Borrowers to assign their rights under this
Agreement, or (v) release all or substantially all of any collateral securing
the extension or maintenance of the credit provided for in this Agreement or
release any guaranty thereof (except as expressly provided in Section 7.16), or
(vi) modify the several nature of the obligations of the Banks hereunder,
modify the sharing provisions among the Banks in Section 10.10, modify this
Section 11.1 or the first sentence of Section 11.6, or modify any other
provision of this Agreement which by its terms requires the consent of all the
Banks.
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(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Bank
that is in default of any of its obligations, covenants or agreements under
this Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction
from the Banks to the Administrative Agent, and, for purposes of determining
the Required Banks at any time when any Banks are in default under this
Agreement, the Commitments and Loans of such defaulting Banks shall be
disregarded; provided that no action of a type described in the proviso in
Section 11.1(a) shall be binding on a defaulting Bank without its written
consent thereto.
11.2 Notices.
(a) Except as otherwise provided in subsection 11.2(c) hereof,
all notices and other communications to or upon the parties hereto shall be
deemed to have been duly given or served if sent in writing (including
telecommunications) to the party to which such notice or other communication is
required or permitted to be given or served under this Agreement, to the
address or telex or telecopy number set forth below the name of such party on
the signature pages hereof, or at such other address or telex or telecopy
number as the parties hereto may hereafter specify to the others in writing.
If for purposes of receiving Invitations for Bid-Option Quotes and information
regarding Notices of Bid-Option Rate Borrowings, a Bank wishes to receive such
communications at an address or telex or telecopy number different from its
address or telex or telecopy number for other purposes under this Agreement,
the Administrative Agent shall communicate with such Bank for such purposes at
such different address, telex or telecopy number following the Administrative
Agent's receipt of a written notice from such Bank requesting that the
Administrative Agent do so. All mailed notices or other communications shall
be by registered or certified mail, postage prepaid, with return receipt
requested. All notices or other communications sent by means of telecopy,
telex or other wire transmission shall be made with request for assurance of
receipt in a manner typical with respect to communications of that type.
Written notices or other communications shall be deemed delivered upon receipt
if delivered by hand, 3 Business Days after mailing if mailed, or 1 Business
Day after deposit with an overnight courier service if delivered by overnight
courier. Notices or other communications provided by any of the other means
referred to above shall be deemed delivered upon receipt. Notwithstanding the
foregoing, all notices to the Administrative Agent shall be effective only when
actually received by the Administrative Agent, and all notices from the
Administrative Agent to any Bank regarding such Bank's obligation to fund Loans
or to make payment under Section 3.3(d) shall be effective only when actually
received by such Bank.
(b) Notices by the Borrowers to the Administrative Agent with
respect to terminations or reductions of the Revolving Credit Commitments
pursuant to Section 3.10, requests for Loans and Letter of Credit Issuances
pursuant to Section 3.3, 3.4, 3.5, 3.6 or 3.7 and notices of prepayment pursuant
to Section 4.2 shall be irrevocable and binding on the Borrowers.
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(c) Any notice to be given by the Administrative Agent or any
Bank to the Administrative Agent or any Bank hereunder, may be given by
telephone, and shall be promptly confirmed in writing upon the request of
the recipient. Any such notice so given by telephone shall be deemed effective
upon receipt thereof by the party to whom such notice is to be given.
11.3 No Waiver By Conduct; Remedies Cumulative. No course of
dealing on the part of the Administrative Agent or any Bank, nor any delay or
failure on the part of the Administrative Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall operate as a waiver
of such right, power or privilege or otherwise prejudice the Agent's or such
Bank's rights and remedies hereunder; nor shall any single or partial exercise
thereof preclude any further exercise thereof or the exercise of any other
right, power or privilege. No right or remedy conferred upon or reserved to
the Administrative Agent or any Bank under this Agreement, or any Note, is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to every other right or remedy
granted hereunder or thereunder or now or hereafter existing under any
applicable law. Every right and remedy granted by this Agreement or by
applicable law to the Administrative Agent or any Bank may be exercised from
time to time and as often as may be deemed expedient by the Administrative
Agent or any Bank and, unless contrary to the express provisions of this
Agreement, or the Notes, irrespective of the occurrence or continuance of any
Default.
11.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, including, without limitation, under Sections 5.3, 5.5
and 11.5, representations and warranties of the Borrowers made herein or in any
certificate, report, financial statement or other document furnished by or on
behalf of the Borrowers pursuant to this Agreement shall be deemed to be
material and to have been relied upon by the Banks, notwithstanding any
investigation heretofore or hereafter made by any Bank or on such Bank's
behalf, and shall survive the repayment in full of the Loans and the
termination of the Commitments.
11.5 Expenses and Indemnification.
(a) The Borrowers shall pay, or reimburse the Administrative
Agent, Syndication Agents, Arrangers or any Bank, as the case may be
(each an "Indemnified Person"), for (i) all reasonable out-of-pocket expenses
of the Administrative Agent, Syndication Agents and Arrangers, including
reasonable fees and disbursements of special counsel for the Administrative
Agent, Syndication Agents and Arrangers, in connection with the preparation of
this Agreement, any waiver or consent hereunder or any amendment hereof or any
Default, (ii) all reasonable costs and expenses of the Indemnified Person,
including reasonable fees and disbursements of counsel, in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Administrative Agent from paying
any amount under, or otherwise relating in any way to, any Letter of Credit and
any and all costs and expenses which it may incur relative to any payment under
any Letter of Credit, provided, that the Borrowers shall not be liable under
this clause (ii) to the extent, but only to the extent, any such costs and
expenses of the Indemnified Person are caused by the Indemnified Person's
breach of this Agreement or gross negligence or willful misconduct, and (iii)
if an Event of Default occurs, all reasonable expenses incurred by the
Indemnified Person,
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including reasonable fees and disbursements of counsel (including
in-house counsel), in connection with such Event of Default and collection and
other enforcement proceedings resulting therefrom. The Borrowers shall
indemnify each Bank against any transfer taxes, documentary taxes, assessments
or charges made by any governmental authority by reason of the execution and
delivery of this Agreement or the Notes.
(b) The Borrowers shall indemnify each Indemnified Person, and
its respective officers, directors, employees and agents, and hold each
Indemnified Person, and its respective officers, directors, employees and
agents, harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind (including, without limitation, the reasonable
fees and disbursements of counsel for any Indemnified Person or any such Person
in connection with any investigative, administrative or judicial proceeding,
whether or not such Indemnified Person or any such Person, as the case may be,
shall be designated a party thereto) which may be incurred by any Indemnified
Person or by any such Person, substantially relating to or arising out of any
actual or proposed use of proceeds of Loans or Letters of Credit for the
purpose of acquiring assets or capital stock of any other Person; provided that
no Indemnified Person or any such Person shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
(c) The Borrowers hereby further indemnify and agree to hold the
Indemnified Persons, and their respective officers, directors, employees and
agents harmless from and against any and all claims, damages, losses,
liabilities, costs and expenses of any kind or nature whatsoever which the
Indemnified Persons or any such Person may incur or which may be claimed
against any of them by reason of or in connection with any Letter of Credit,
and no Indemnified Person or any of its respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may
be made of any Letter of Credit or for any acts or omissions of any beneficiary
in connection therewith; (ii) the validity, sufficiency or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by the Administrative Agent to the beneficiary under any Letter
of Credit against presentation of documents which do not comply with the terms
of any Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit; (iv) any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit; or (v) any other event or circumstance whatsoever arising in connection
with any Letter of Credit; provided, however, that the Borrowers shall not be
liable hereunder to the Indemnified Persons and such other Persons and the
Administrative Agent shall be liable to the Borrowers to the extent, but only
to the extent, of any direct, as opposed to consequential or incidental,
damages suffered by the Borrowers which were caused by (A) the Administrative
Agent's wrongful dishonor of any Letter of Credit after the presentation to it
by the beneficiary thereunder of a draft or other demand for payment and other
documentation strictly complying with the terms and conditions of such Letter
of Credit, or (B) the Administrative Agent's payment under any Letter of Credit
to the extent, but only to the extent, that such payment constitutes gross
negligence or willful misconduct of the Administrative Agent. The inclusion of
any event in clauses (i) - (vii) of Section 3.3(f) shall not by itself preclude
a finding that such event
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constitutes gross negligence or willful misconduct of the Administrative Agent.
It is understood that in making any payment under a Letter of Credit the
Administrative Agent will rely on documents presented to it under such Letter
of Credit as to any and all matters set forth therein without further
investigation and regardless of any notice or information to the contrary, and
such reliance and payment against documents presented under a Letter of Credit
substantially complying with the terms thereof shall not be deemed gross
negligence or willful misconduct of the Administrative Agent in connection with
the payment.
11.6 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
provided that the Borrowers may not, without the prior written consent of all
the Banks, assign its rights or obligations hereunder or under the Notes, and
the Banks shall not be obligated to make any Loan hereunder to any Person other
than the Borrowers, and the Administrative Agent shall not be obligated to
issue any Letter of Credit for the account of any Person other than MascoTech
or any Consolidated Subsidiary of MascoTech.
(b) The Administrative Agent from time to time in its sole
discretion may appoint one of its affiliates as its agent for the purpose
of servicing and administering this Agreement and the transactions contemplated
hereby and enforcing or exercising any rights or remedies of the Administrative
Agent provided under this Agreement, the Notes or otherwise. In furtherance of
such agency, the Administrative Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Borrowers hereby consent
to the appointment of such agent and agrees to provide all such notices,
reports and other documents and to otherwise deal with such agent acting on
behalf of the Administrative Agent in the same manner as would be required if
dealing with the Administrative Agent itself.
(c) Any Bank may sell a participation interest to any financial
institution(s), and such financial institution(s) may further sell a
participation interest (undivided or divided) to any financial institution(s),
in its Commitment and the Loans and risk of the Letters of Credit, Swing Line
Loans and Alternate Currency Syndicated Loans and such Bank's or such
participating financial institution's, as the case may be, rights and benefits
under this Agreement and the Notes, and to the extent of that participation,
such participant or participants shall have, to the extent permitted by law,
the same rights and benefits against the Borrowers under Section 9.3 as it or
they would have had if such participant or participants were the Bank making
the Loans to the Borrowers hereunder, provided, however, that in purchasing
such participation interest(s) each such participant shall be deemed to have
agreed to share with the Banks the proceeds thereof as provided in Section
10.10 as fully as if such participant were a Bank hereunder; and provided
further, however, that (i) the obligations under this Agreement of each Bank
selling a participation interest hereunder shall remain unmodified and fully
effective and enforceable against such Bank, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Bank shall remain the holder of its Notes for all
purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and
the other Banks shall
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continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, and (v) such Bank shall not
grant to its participant(s) any rights to consent or withhold consent to any
action taken by such Bank or the Administrative Agent under this
Agreement other than action requiring the consent of all of the Banks
hereunder. Each Bank shall give the Borrowers prior written notice of each
sale by such Bank of a participation interest under this Section 11.6(c). Each
participant shall be entitled to the benefits of Sections 5.3 and 5.5 with
respect to its participation interest as if it were a Bank; provided that no
participant shall be entitled to receive any greater amount pursuant to such
Sections 5.3 and 5.5 than the Bank that originally sold such participation
interest would have been entitled to receive in respect of such participation
interest had no such sale taken place.
(d) Any Bank may, with the prior written consent of the
Borrowers and the Administrative Agent (which consent in each case will not
unreasonably be withheld or delayed, and which consent in the case of
MascoTech may not be withheld if there is any Event of Default under Section
9.1(a), (f) or (g)) assign on a pro rata or non-rata basis to one or more banks
or other financial institutions all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Syndicated Loans owing to it, its share of the risk of Letters
of Credit, Swing Line Loans and Alternate Currency Syndicated Loans, and the
Syndicated Notes held by it); provided, however, that (i) the amount of the
Commitment of any assignee Bank as of any date, after giving effect to each
assignment to such assignee that is effective on such date, shall in no event be
less than $10,000,000, (ii) except in the case of an assignment of all of a
Bank's rights and obligations under this Agreement, (A) the amount of the
Commitment of the assigning Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to each
such assignment) shall in no event be less than $5,000,000 or an integral
multiple of $5,000,000, or such lesser amount as the Borrowers and the
Administrative Agent may consent to and (B) after giving effect to each such
assignment, the amount of the Commitment of the assigning Bank shall in no
event be less than $10,000,000, (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register (as hereinafter defined), an Assignment and
Acceptance in the form of Exhibit K hereto (an "Assignment and Acceptance"),
together with the Notes subject to such assignment and a processing and
recordation fee of $3,500, (iv) any Bank may without the consent of the
Borrowers or the Administrative Agent assign to any affiliate of such Bank all
of its rights and obligations under this Agreement and (v) any Bank may without
the consent of the Borrowers or the Administrative Agent assign any or all of
its rights and obligations under this Agreement to another Bank, as such term
is defined in this Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (ii) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto).
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(e) By executing and delivering an Assignment and Acceptance,
(i) the Bank assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (A) other than
as provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any instrument or other document furnished pursuant hereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any instrument or other document furnished pursuant
hereto; and (B) such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of their
obligations under this Agreement or any instrument or other document furnished
pursuant hereto, and (ii) the assignee thereunder confirms to the assignor
thereunder and the other parties hereto as follows: (A) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 6.6 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (B) such assignee will,
independently and without reliance upon the Administrative Agent, such
assigning Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (C) such
assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (D) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required
to be performed by it as a Bank and agrees that shall be bound by all the terms
and provisions of this Agreement.
(f) The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for
the recordation of the names and addresses of the Banks and the Commitment of,
and principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent demonstrable error, and the Borrowers, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrowers or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee and, unless such assignment is of only a
portion of such assigning Bank's rights and obligations hereunder, the Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and the Administrative Agent and the
Borrowers have given their written consent under Section 11.6(d) (if required),
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, the
Borrowers, at their own expense, shall execute and deliver to the
Administrative Agent (in exchange for the surrendered Notes unless such
assignment is of only a portion of such assigning Bank's rights and
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obligations hereunder) new Revolving Note and Term Note to the order of such
assignee and a new Bid-Option Note to the order of such assignee. Such new
Notes shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibits A-1, A-2 and B-1
hereto, as applicable.
(h) If any Reference Bank makes an assignment of all of its
Commitment and Syndicated Loans to an unaffiliated institution pursuant to
subsection (d) above, or if the Fixed Rate Loans of any Reference Bank are
repaid pursuant to Section 5.2 or 5.3, the Administrative Agent shall, with the
consent of the Required Banks and the Borrowers, appoint another Bank to act as
Reference Bank hereunder. No assignee of any Bank shall be entitled to receive
any greater payment under Section 5.3 than such Bank would have been entitled
to receive with respect to the rights assigned or otherwise transferred, unless
such assignment is made by reason of the provisions of Section 5.2 or 5.3
requiring such Bank to designate a different lending office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(i) Each Bank may assign to one or more banks or other
financial institutions any Bid-Option Note held by it. Any such Bank
assigning a Bid-Option Note shall for all purposes of this Agreement be deemed
to be the holder of such Note, and no assignee under this Section 11.6(i) shall
as a result of such assignment become a "Bank" under this Agreement.
(j) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Bank from its
obligations under this Agreement.
11.7 Confidentiality. Each Bank agrees that all documentation and
other information made available by the Borrowers to such Bank under the terms
of this Agreement shall (except (a) to the extent required by legal or
governmental process or otherwise by law, or (b) if such documentation and
other information is publicly available or hereafter becomes publicly available
other than by action of such Bank, or was theretofore known to such Bank
independent of any disclosure thereto by the Borrowers, or (c) to the extent of
necessary disclosure to such Bank's accountants, attorneys or regulators, or
(d) in any litigation or similar proceedings related to this Agreement, the
Notes or any Letter of Credit) be held in the strictest confidence by such Bank
and disclosed only to those officers, employees and agents of such Bank or of
any Affiliate of such Bank involved in the administration of the credit from
time to time outstanding from such Bank to the Borrowers or otherwise involved
in servicing, maintaining or further developing the relationship between such
Bank and the Borrowers, each of which officers, employees and agents shall,
except as permitted under this Section 11.7 generally with respect to such
Bank, hold such documentation and other information in the strictest confidence
and to be used only in connection with this Agreement; provided that (i) such
Bank may disclose such documentation and other information, and all other
information that has been delivered to such Bank by or on behalf of the
Borrowers prior to the Closing Date (including, without limitation,
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the Confidential Information Memorandum dated January, 1998 concerning
MascoTech) in connection with such Bank's credit evaluation of MascoTech and
its Subsidiaries, to any other financial institution to which such Bank sells
or proposes to sell a participation or other interest in any of its Loans
hereunder (or under any other credit agreement with the Borrowers), if such
other financial institution, prior to such disclosure, agrees for the benefit
of the Borrowers to comply with the provisions of this Section 11.7 (including
the provisions of this Section 11.7 allowing further disclosure to other
financial institutions to whom a sale of a participation or other interest is
proposed), or to any Federal Reserve Bank and (ii) such Bank may disclose the
provisions of this Agreement and the Notes and the amounts, maturities and
interest rates of its Loans and the amounts of Letters of Credit (and similar
information relating to any other credit agreement with the Borrowers) to any
purchaser or potential purchaser of any interest of such Bank in any Loan to
the Borrowers.
11.8 Counterparts; Effectiveness of Telecopied Signatures. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart. Delivery of
a telecopied signature on this Agreement shall be as effective against the
signer as delivery of its original signature.
11.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of
reference only and shall in no way modify any of the terms or provisions
hereof.
11.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
11.11 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any such covenant, the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or any event or condition which
with notice or lapse of time, or both, could become such a Default if such
action is taken or such condition exists.
11.12 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by the Borrowers exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to
be fulfilled shall be reduced to an amount computed at the highest rate of
interest permissible under applicable law, and if for any reason whatsoever any
Bank shall ever receive as interest an amount which would be deemed unlawful
under such applicable law such interest shall be automatically applied to the
payment of principal of the Loans outstanding hereunder (whether or not
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then due and payable) and not to the payment of interest, or shall be
refunded to the Borrowers if such principal and all other obligations of the
Borrowers to the Banks have been paid in full.
11.13 Substitution of Banks.
(a) After payment by the Borrowers to any Bank of any amount
due pursuant to Section 5.3 or 5.5 that the Borrowers reasonably deem
material, and upon five Business Days' written notice in the form of Exhibit L
delivered to the Administrative Agent and the applicable Bank, the Borrowers
may replace any one or more of the Banks. Upon the date of its effectiveness,
such notice shall terminate the Commitment of such Bank entirely, provided that
the Borrowers shall prepay each Loan of such Bank (if any) in full on the
effective date of such termination, together with accrued interest thereon, all
amounts due pursuant to Sections 5.3 and 5.5, all accrued facility fees with
respect to such Bank and all other amounts owing to such Bank hereunder to such
effective date.
(b) If the Borrowers shall terminate the Commitment of any
Bank pursuant to the provisions of subsection (a) of this Section 11.13, the
Borrowers shall designate another bank or other banks (which may be one of the
Banks) (in either case, an "Additional Bank") to be parties to this Agreement,
provided, that (i) without the consent of the Administrative Agent, the total
number of Additional Banks (other than those that were already Banks) may not
exceed the total number of Banks whose Commitments are terminated pursuant to
Section 11.13(a) plus six, (ii) the amount of the Commitment of any Additional
Bank may not be less than $10,000,000, (iii) the amount of the Commitment(s) of
the Additional Bank(s) (or, if any such Additional Bank already is a Bank, the
added portion of such Bank's Commitment) shall in the aggregate equal the
amount of the Commitment so terminated and (iv) the Borrowers or the Additional
Bank, and not the Bank being terminated pursuant to subsection (a) of this
Section 11.13, shall pay the processing and recordation fee required under
Section 11.6(d)(iv). Any Additional Bank shall become a party to this
Agreement and be considered a Bank hereunder for all purposes if (i) it shall
agree in writing to be bound by all of the terms and provisions of this
Agreement, such agreement to specify the amount of the Commitment of such
Additional Bank and to be otherwise in form and substance satisfactory to the
Administrative Agent, (ii) it shall make Syndicated Loans to the Borrowers in
principal amounts which bear the same ratio to the amounts of the Syndicated
Loans of other Banks (including other Additional Banks) then outstanding or to
be concurrently outstanding as the amount of the Commitment of such Additional
Bank bears to the then aggregate amount of the Commitments of such other Banks
(including other Additional Banks), and (iii) a copy of such agreement and of
evidence satisfactory to the Administrative Agent of the making of such Loans
shall be furnished to the Administrative Agent.
11.14 Governing Law. This Agreement is a contract made under, and
shall be governed by and construed in accordance with, the law of the State of
New York applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
11.15 Integration and Severability. This Agreement and the Notes
embody the entire agreement and understanding among the Borrowers, the
Administrative Agent, and the Banks, and
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supersede all prior agreements and understandings, relating to the subject
matter hereof and thereof. In case any one or more of the obligations of the
Borrowers under this Agreement or any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Borrowers shall not in any way be affected or
impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Borrowers under this Agreement or any Note in any other
jurisdiction.
11.16 WAIVER OF JURY TRIAL. THE BANKS, THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENTS AND THE BORROWERS, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF
CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF
THEM RELATED HERETO OR THERETO. NONE OF THE BANKS, THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENTS OR THE BORROWERS SHALL, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
11.17 Alternate Currency Addenda Binding on Each Bank; Provisions
Regarding Alternate Currency Agents. Each of the Banks agrees that it shall be
bound by the provisions of each Alternate Currency Addendum entered into in
connection herewith, in particular as it relates to the provisions applicable
to the Alternate Currency Agent appointed thereunder.
11.18 Unification of Certain Currencies. If the Euro (or some other
similar unit of account) becomes a currency in its own right in connection with
European monetary union contemplated by the Maastricht Treaty, then each of the
Borrowers, the Banks and the Administrative Agent agrees to negotiate in good
faith an amendment to this Agreement satisfactory in form and substance to the
Borrowers, the Banks and the Administrative Agent to account therefor. The
introduction of the Euro shall not have the effect of altering any term of any
Note or other instrument or discharging or excusing performance by any party
under any such Note or instrument or giving any party the right to terminate
any such Note or instrument.
89
97
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
Closing Date, notwithstanding the date and year first above written.
MASCOTECH, INC.,
as Borrower
By:/s/Timothy Wadhams
--------------------------------------
TIMOTHY WADHAMS
Its: Vice President - Controller
and Treasurer
21001 Van Born Road
Taylor, Michigan 48180
Attention: Jim Tompkins
Telephone: (313) 792-6403
Fax: (313) 792-6118
MASCOTECH ACQUISITION, INC.
as Borrower
By:/s/Timothy Wadhams
--------------------------------------
TIMOTHY WADHAMS
Its: Vice President
and Treasurer
21001 Van Born Road
Taylor, Michigan 48180
Attention: Jim Tompkins
Telephone: (313) 792-6403
Fax: (313) 792-6118
Credit Agreement
98
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Bank
By:/s/Richard H. Huttonlocher
--------------------------------------
RICHARD H. HUTTONLOCHER
Its: First Vice President
c/o NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Richard H. Huttonlocher
Telephone: (312) 225-2259
Fax: (313) 225-2290
Total Commitment: $300,000,000
Term Loan Commitment: $115,384,615.40
Revolving Credit Commitment: $184,615,384.60
Credit Agreement
99
BANK OF AMERICA NT&SA,
as Syndication Agent and Bank
By:/s/Lewis B. Fisher
--------------------------------------
Lewis B. Fisher
Its: Managing Director
231 South LaSalle Street, 9th Floor
Chicago, Illinois 60697
Attention: Lewis B. Fisher
Telephone: (312) 828-3137
Fax: (312) 987-7384
Total Commitment: $225,000,000
Term Loan Commitment: $86,538,461.54
Revolving Credit Commitment: $138,461,538.46
Credit Agreement
100
NATIONSBANK, N.A.,
as Syndication Agent and Bank
By:/s/Wallace Harris Jr.
--------------------------------------
Its: V.P.
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Wallace Harris, Vice President
Telephone: 312-234-5626
Fax: 312-234-5601
Total Commitment: $225,000,000
Term Loan Commitment: $86,538,461.54
Revolving Credit Commitment: $138,461,538.46
Credit Agreement
101
COMERICA BANK,
as Bank
By:/s/A.J. Anderson
--------------------------------------
A.J. Anderson
Its: First Vice President
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nicholas G. Mester
Telephone: (313) 222-9168
Fax: (312) 222-3776
Total Commitment; $100,000,000
Term Loan Commitment: $38,461,538.46
Revolving Credit Commitment: $61,538,461.54
Credit Agreement
102
CIBC INC.,
as Bank
By:/s/Stephanie E. DeVane
--------------------------------------
Stephanie E. DeVane
Its: Executive Director, CIBC
Oppenheimer Corp., as Agent
425 Lexington Avenue
New York, NY 10017
Attention: Stephanie E. DeVane
Telephone: (212) 856-3727
Fax: (212) 856-3991
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
103
FIRST UNION NATIONAL BANK,
as Bank
By:/s/Glenn F. Edwards
--------------------------------------
Its: Vice President
One First Union Center, 5th Floor
Charlotte, North Carolina 28288
Attention: Glenn F. Edwards
Telephone: 704-383-3810
Fax; 704-374-2802
Total Commitment; $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
104
KEYBANK NATIONAL ASSOCIATION,
as Bank
By:/s/Thomas A. Crandell
--------------------------------------
Thomas A. Crandell
Its: Vice President
127 Public Square, 6th Floor
Cleveland, Ohio 44114
Attention: Thomas A. Crandell
Telephone: (216) 689-3589
Fax: (216) 689-4981
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
105
PNC BANK, NATIONAL ASSOCIATION
as Bank
By:/s/Peter F. Stack
--------------------------------------
Peter F. Stack
Its: Assistant Vice President
500 West Madison Street, Suite 3140
Chicago, Illinois 60606
Attention: Peter Stack
Telephone: (312) 906-9426
Fax: (312) 906-3420
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
106
THE BANK OF NEW YORK,
as Bank
By:/s/Edward J. Dougherty
--------------------------------------
Edward J. Dougherty III
Its: Vice President
U.S. Commercial Banking
One Wall Street, 22nd Floor
New York, New York 10286
Attention: Edward J. Dougherty III
Telephone: (212) 635-1066
Fax: (212) 635-6434
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
107
THE BANK OF NOVA SCOTIA,
as Bank
By:/s/F.C.H. Ashby
--------------------------------------
F.C.H. Ashby
Its: Senior Manager Loan Operations
Atlanta Agency
Suite 2700
600 Peachtree Street NE
Atlanta, Georgia 30308
Attention: Shannon Dancila
Telephone: (404) 877-1561
Fax: (404) 888-8998
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
Credit Agreement
108
SCHEDULE 1
TO
CREDIT AGREEMENT
Pricing Grid
Applicable Margin over Applicable Margin for Applicable
Leverage Ratio Eurodollar Rate Letters of Credit Facility Fee
Rate
Greater than or equal
to 4.50 to 1.0 1.000% 1.000% 0.250%
Less than 4.50 to 1.0
and greater than or
equal to 4.25 to 1.0 0.875% 0.875% 0.250%
Less than 4.25 to 1.0
and greater than or
equal to 3.75 to 1.0 0.775% 0.775% 0.225%
Less than 3.75 to 1.0
and greater than or
equal to 3.25 to 1.0 0.675% 0.675% 0.200%
Less than 3.25 to 1.0
and greater than or
equal to 2.5 to 1.0 0.575% 0.575% 0.175%
Less than 2.5 to 1.0
and greater than or
equal to 2.0 to 1.0 0.350% 0.350% 0.150%
Less than 2.0 to 1.0 0.225% 0.225% 0.150%
Credit Agreement
109
SCHEDULE 2
TO
CREDIT AGREEMENT
INDUSTRIAL REVENUE BONDS
1. City of Fort Wayne, Indiana Industrial Development Revenue Bonds (ND Tech
Project)
2. Trust Indenture between Clinton County Redevelopment Authority and Fort
Wayne National Bank, Trustee, dated February 1, 1997
3. Guaranty Agreement dated as of February 1, 1997, between TriMas
Corporation and Fort Wayne National Bank, Trustee
Credit Agreement
110
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT ("Amendment") is
entered into and dated as of February 10, 1998 by and among MascoTech, Inc.,
a Delaware corporation (together with its successors, "MascoTech"), TriMas
Corporation, a Delaware corporation (successor by merger to MascoTech
Acquisition, Inc., a Delaware corporation, and, together with its successors,
"TriMas"), any Borrowing Subsidiaries which are now or may hereafter become a
party hereto from time to time (each individually a "Borrowing Subsidiary" and
collectively, the "Borrowing Subsidiaries") (MascoTech, TriMas and each
Borrowing Subsidiary referred to individually as a "Borrower" and collectively
as the "Borrowers"), the Banks party hereto from time to time (collectively, the
"Banks" and individually, a "Bank"), The First National Bank of Chicago (the
"Administrative Agent") and Bank of America NT&SA and NationsBank, N.A. (the
"Syndication Agents", and collectively with the Administrative Agent, the
"Agents") under that certain Credit Agreement among the parties referred to
above dated as of January 16, 1998 (the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the meaning given to them in
the Credit Agreement.
WHEREAS, the Borrowers, the Banks and the Agents have entered
the Credit Agreement; and
WHEREAS, the Borrowers, the Banks and the Agents have agreed to
amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth
above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Banks and the
Agents agree as follows:
1. Amendment to the Credit Agreement. Effective as of
February 10, 1998 and subject to the satisfaction of the conditions precedent
set forth in Section 2 below, the Credit Agreement shall be and hereby is
amended as follows:
(a) The following definitions in Section 1.1 shall be
amended:
(1) The definition of "Revolving Credit
Commitment" shall be amended to delete the reference to
"Section 3.10" and substitute therefor "Section 3.10(a)" at the
end thereof.
(2) The definition of "Term Loan Commitment" shall be
amended to delete the word "and" before "(ii)" and to insert a
comma in its place, and to add "and (iii) as such amount may be
reduced from time to time pursuant to Section 3.10(b)" before
the period at the end thereof.
111
(b) Section 3.2 is amended in its entirety as follows:
3.2 Term Loans. Subject to the terms and conditions
set forth in this Agreement, each Bank on and after the
Closing Date severally and not jointly agrees to make a term
loan, in Dollars, to one or more of the Borrowers in an
aggregate amount not to exceed such Bank's Term Loan
Commitment (each individually, a "Term Loan" and,
collectively, the "Term Loans"). All Term Loans shall be
made by the Banks on or after the Closing Date
simultaneously and pro rata, it being understood that no
Bank shall be responsible for any failure by any other Bank
to perform its obligation to make any Term Loan hereunder
nor shall the Term Loan Commitment of any Bank be increased
or decreased as a result of any such failure, it being
further understood that all or part of the initial Term
Loans extended to the Borrowers on the Closing Date may be
refinanced after the Closing Date with Term Loans made to
one or more of the Borrowers. Each Bank's Term Loan
Commitment shall be reinstated as of the date any Borrower
requests a Term Loan to refinance an existing Term Loan
originally made to a different Borrower.
(c) Section 3.7(a) is amended to delete the word
"Revolving" in the fifth line thereof.
(d) Section 3.8(b) is amended to add the following
sentence at the end thereof:
Upon any refinancing of a Term Loan, the applicable
Borrower or Borrowers shall execute a new Term Loan
Note payable to each Bank in an amount equal to the
Term Loan Commitment of such Bank.
(e) Section 3.10 is amended (1) to add "(a)" prior to
the first word thereof and (2) to add a new Section 3.10(b) as follows:
Subject to Section 5.5, the Borrowers shall have the
right at any time and from time to time, upon one Business
Day's prior written notice to the Administrative Agent, to
terminate or proportionately reduce the amount of the Term
Loan Commitments, provided, that any partial reduction of
the amount of the Term Loan Commitments shall be in the
amount of $5,000,000 or a multiple of $1,000,000 in excess
thereof, provided that after giving effect to any such
voluntary reduction, the Dollar Equivalent of the
outstanding Term Loans shall not exceed the amount of the
Term Loan Commitments, as reduced from time to time. The
Term Loan Commitments or any portion thereof terminated or
reduced pursuant to this Section may not be reinstated.
Upon receipt of any notice from the Borrowers pursuant to
this Section, the Administrative Agent shall promptly notify
each Bank of the contents thereof and of such Bank's share
of any reduction of the Term Loan Commitments. Each such
notice shall be irrevocable by the Borrowers once the
Administrative Agent begins notifying any Bank of the
contents thereof.
2
112
(f) Section 3.11 is amended (1) to delete words "The
Revolving Credit Commitments" in the first line and to substitute therefor
"All Commitments" and (2) to delete the last sentence thereof.
(g) Section 4.1(b)(i) is amended (1) to add the words
"and the Term Loan Commitments" after the words "Term Loans" in the third line
thereto and (2) to add the following sentence after the word "hereunder" in
the fourth line thereto:
The principal amount of the installments may be paid by any or all
of the Borrowers at their discretion provided that each of the quarterly
installments shall be in the aggregate amounts set forth below:
(h) Section 4.1(b)(i) is further amended to insert the
words ", except that the initial Term Loans extended to the Borrowers on the
Closing Date may be refinanced with Term Loans made subsequently to one or more
of the Borrowers" after the word "repaid" at the end thereof.
(i) The following Section 4.1(b)(ii) is added:
A repayment made within five (5) Business Days prior to
the scheduled installment date for such repayment, as set
forth in Section 4.1(b)(i), shall be applied to the
installment due within such five (5) Business Days and shall
not be deemed a prepayment. Any such repayment shall be
subject to the provisions of Section 5.5.
(j) Section 4.2(g) is amended to add the words "(other
than repayments made within five (5) Business Days prior to the scheduled
installment date for such repayments as permitted by Section 4.1(b)(ii))" after
the words "Term Loans" in the first line thereof.
(k) Section 7.11(b) shall be amended to delete the words
"and (v)" in the last line thereof and to substitute the words ", (v) to
refinance the Term Loans made to the Borrowers on the Closing Date with Term
Loans made to one or more of the Borrowers and (vi)".
(l) Section 7.14 is amended to delete "(i)" in the third
line thereof.
(m) Section 11.1(a)(ii) is amended in its entirety as
follows:
except as expressly authorized hereunder, amend, extend or
terminate the respective Commitment of any Bank (other than any
amendment, extension or termination of any Alternate Currency Commitment
other than an extension of any Alternate Currency Commitment beyond the
Termination Date.)
(n) Section 11.6(c) is amended to insert the words "or
special purpose funding entity" after each appearance of the words "financial
institution(s)" in the first, second and third
3
113
lines thereof and to insert the words "or special purpose funding
entity's" after the words "financial institution's" in the fourth line thereof.
(o) Section 11.6(d) is amended to delete the reference
to "the Borrowers" in the first line thereof and to substitute therefor the
word "MascoTech".
(p) Section 11.6(e) is amended to insert the word "it"
after the word "that" in the last line thereof.
(q) Section 11.6(g) is amended to insert the word "a"
before the words "new Revolving Note" and before the words "Term Note" in the
tenth line thereof.
(r) Section 11.7 is amended to insert the words "or
special purpose funding entity" after each appearance of the words "financial
institution" in the eighteenth and twentieth lines thereof and after the word
"institutions" in the twenty-third line thereof.
2. Conditions Precedent. This Amendment shall become
effective as of the date above written, if, and only if, the Administrative
Agent has received duly executed originals of this Amendment from the Borrowers
and the Required Banks.
3. Representations and Warranties of the Borrowers.
The Borrowers hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement, as amended
hereby, constitute legal, valid and binding obligations of the Borrowers and
are enforceable against the Borrowers in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the
Borrowers hereby reaffirm all representations and warranties made in the
Credit Agreement, and to the extent the same are not amended hereby, agree that
all such representations and warranties shall be deemed to have been remade as
of the date of delivery of this Amendment, unless and to the extent that any
such representation and warranty is stated to relate solely to an earlier date,
in which case such representation and warranty shall be true and correct as of
such earlier date.
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and
after the date hereof, each reference in the Credit Agreement to "this Credit
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) The Credit Agreement, as amended hereby, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
4
114
(c) Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Administrative Agent or the Banks, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
5. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws (as opposed to the conflict
of law provisions) of the State of New York.
6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or
more of the parties to the Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
5
115
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered on the date first above written.
MASCOTECH, INC., as a Borrower
By: /s/Timothy Wadhams
---------------------------------------
Name: Timothy Wadhams
Title: Vice President/Controller and
Treasurer
TRIMAS CORPORATION, as a Borrower
By: /s/Timothy Wadhams
---------------------------------------
Name: Timothy Wadhams
Title: Senior Vice President
and CFO
Amendment No. 1 to Credit Agreement
116
THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative
Agent and Bank
By: /s/Richard H. Huttenlocher
-----------------------------------
Name: Richard H. Huttenlocher
Title: First Vice President
BANK OF AMERICA NT&SA, as
Syndication Agent and Bank
By: /s/Lewis B. Fisher
-----------------------------------
Name: Lewis B. Fisher
Title: Managing Director
NATIONSBANK, N.A., as
Syndication Agent and Bank
By: /s/Wallace Harris Jr.
-----------------------------------
Name: Wallace Harris Jr.
Title: Vice President
BANKS: COMERICA BANK
By: /s/A.J. Anderson
-----------------------------------
Name: A.J. Anderson
Title: First Vice President
CIBC INC.
By: /s/Stephanie E. DeVane
-----------------------------------
Name: Stephanie E. DeVane
Title: Executive Director, CIBC
Oppenheimer Corp., as Agent
Amendment No. 1 to Credit Agreement
117
FIRST UNION NATIONAL BANK
By: /s/Glenn F. Edwards
-----------------------------------
Name: Glenn F. Edwards
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/Thomas A. Crandell
-----------------------------------
Name: Thomas A. Crandell
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name: Peter F. Stack
Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/Edward J. Dougherty III
-----------------------------------
Name: Edward J. Dougherty III
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/F.C.H. Ashby
-----------------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Amendment No. 1 to Credit Agreement